Citation Codes

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Case Number

No. 2212 of 1992

Judges

Padma Khastgir
Amal Kanti Bhattacharji, JJ.

Acts

Act of the West Bengal Page: 266Legislature being West Bengal Act
provisions of section 437.(1A) The provisions of sub-section (1)
section 438 of Act 2 of 1974 by the Act XXV of 1990
sub-section (1) of section 438 of the Principal Act,
Section 438 of the Code of Criminal Procedure
sub-section (2) of section 438.5. Such section
provision of Article 21 of he Constitution
SECTION 438 CRIMINAL PROCEDURE CODE
sub-section (3) of section 437,

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Smart Summary

Structured Summary of the Opinion (Section 438 Application)

Factual and Procedural Background

This opinion arises from an application made under section 438 of the Criminal Procedure Code (anticipatory bail). The petitioner sought relief under section 438 and contended that, following an amendment introduced by the West Bengal Legislature (West Bengal Act No. XXV of 1990, amending the Code of Criminal Procedure (West Bengal Amendment Act of 1988)), the police could lawfully arrest the petitioner during the pendency of an application for anticipatory bail. The de facto complainant challenged an order passed by the learned District Sessions Judge on 13 November 1992, alleging that the order was passed ex parte and without reference to case-diary materials, and that it violated mandatory provisions introduced by the amendment.

The opinion summarizes the legislative history and text of section 438 (as originally introduced following the Law Commission's 48th Report) and the 1992 amendment (substituting sub-section (1) and adding provisos and sub-section (1A)). The Court reviewed the legal effect of those amendments, prior Supreme Court rulings, and a Division Bench decision of this Court. Ultimately, because the accused was apprehended during the pendency of the application, the Court concluded the application had become infructuous and ordered that there would be no order on the application. Justice Bhattacharji concurred.

Legal Issues Presented

Whether the 1992 West Bengal amendment to section 438 of the Criminal Procedure Code permits the police to arrest a person during the pendency of an application for anticipatory bail (i.e., whether mere filing of a petition bars arrest in absence of a court order).
Whether an ex parte order granting anticipatory bail (or interim release) without serving notice on the State (Public Prosecutor) and without imposing conditions is legally impermissible under the amended provision.
Whether the requirement in the amendment that the High Court or Court of Session "shall dispose of an application ... within thirty days" is mandatory (jurisdictional) or merely directory.
What procedural requirement (if any) applies to making a final order in cases involving offences punishable with death, life imprisonment, or imprisonment of seven years or more (specifically the application of the proviso requiring at least seven days' notice to the State).

Arguments of the Parties

Petitioner's Arguments (as presented by Mr. Bijoy Bhose)

After incorporation of the amendment (section 3 as described in the opinion), the Court should give notice to the State before granting a final order on an application for anticipatory bail.
When releasing the petitioner or granting anticipatory bail, the Court should impose conditions (relying on the power of the Court under section 438(2) and related provisions).
Relied on Gurbaksh Singh v. The State of Punjab (AIR 1980 SC 1632) to support the submission that although the Court has power to pass interim orders, such orders should, where appropriate, be made after issuing notice to the State and should contain suitable conditions.
Contended that the impugned order passed by the District Judge, Howrah was bad because it was ex parte (without notice to the State) and because no conditions were imposed for release.

De facto Complainant's Contentions

The order of the learned District Sessions Judge dated 13 November 1992, was alleged to be illegal and violative of the amendment because it was passed ex parte and without reference to materials in the case diary.
Contended that the amendment introduced mandatory procedural requirements which the learned District Judge failed to follow.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Gurbaksh Singh v. The State of Punjab, AIR 1980 SC 1632	Held that an order of bail can be passed under section 438 without notice to the Public Prosecutor, but notice should be issued forthwith and bail should be reexamined; interim orders must conform to section and suitable conditions should be imposed.	The court relied on this authority to support the position that interim orders are permissible even without prior notice in emergent cases, but that notice should follow and suitable conditions ought to be imposed; petitioner had relied on this case to contend for notice and conditions.
Balchand Jain v. State of M.P., AIR 1977 SC 366	Although section 438 did not require notice to the State, prudence requires notice before passing a final order for anticipatory bail; in emergent cases interim orders can be made before issuing notice.	The court cited this case to confirm the principle that notice is desirable before a final anticipatory bail order, while permitting interim relief in true emergencies.
Division Bench, Calcutta High Court, 1992 C. Cr. LR (Cal) 344 (presided by L.M. Ghosh, J.)	Observed that police could not arrest petitioners before disposal of petition under section 438 unless the amendment has been given effect to.	The Court noted that this Division Bench decision did not consider the amendment to section 438 and that, in view of the subsequent amendment, the unreported Division Bench view has limited application. The opinion treats that decision as not conclusive once the amendment is considered.
Unreported Division Bench judgment presided by Justice P.C. Borooah	Not specifically stated in extract; referenced as an unreported decision.	The Court expressly stated that in view of the amendment, the unreported judgment of the Division Bench presided by Justice P.C. Borooah is of no consequence.

Court's Reasoning and Analysis

The Court proceeded by a close textual and purposive interpretation of the amended provision of section 438 (the substitution of sub-section (1) and the addition of provisos and sub-section (1A)). The reasoning unfolded in the following steps:

Textual interpretation of the first proviso to amended sub-section (1)(a): The Court read the proviso as making clear that "the mere fact that a person has applied to the High Court or the Court of Session for a direction under this section shall not, in the absence of any order by that Court, be a bar to the apprehension of such person, or the detention of such person in custody, by an officer-in-charge of a Police-Station."
- Consequent conclusion: Mere filing or pendency of an anticipatory bail petition does not, by itself, prevent arrest or detention unless there is a specific order by a competent court.
Construction of sub-section (1)(b) (disposal within thirty days): The Court held that the provision that the High Court or Court of Session "shall dispose of an application ... within thirty days" is directory rather than mandatory.
- Consequence: Failure to dispose within thirty days does not make the application lapse nor does it render any interim orders ineffective or inoperative.
Analysis of the proviso relating to serious offences (death, life, or term not less than seven years): The Court read this proviso as requiring that no final order be made in such cases without giving the State not less than seven days' notice to present its case.
- Importantly, this proviso does not prevent the court from passing interim orders during pendency; it only restrains making a final order without the seven days' notice in the specified categories.
Reconciliation with Supreme Court authority: The Court examined Balchand Jain and Gurbaksh Singh, noting that those decisions recommended notice to the State before final anticipatory bail orders and indicated that interim relief is permissible in emergent cases. The Court aligned its interpretation with these principles: final orders should generally be made after notice, but interim orders may be made without prior notice depending on exigency and justice.
Protection against misuse: The opinion references the Law Commission’s 48th Report (as the basis for introducing section 438) and recognizes the legislature’s intent to prevent misuse of anticipatory bail while protecting personal liberty. The Court emphasized that anticipatory bail is meant to secure individual liberty and is not a perpetual shield against all possible arrests.
Application to the facts: Given that the accused had already been apprehended during pendency, the Court concluded that the application for anticipatory bail had become infructuous; consequently, there would be no order on the application.
Concurring view: Justice Bhattacharji agreed with the reasoning and result.

Holding and Implications

Core Ruling: The application has become infructuous and, as a result, there will be no order on this application.

Direct consequences for the parties:

The petition for anticipatory bail was rendered moot by the apprehension of the accused; the Court made no order granting anticipatory bail or interim release in this application.
The impugned ex parte order of the District Sessions Judge (dated 13 November 1992) is the subject of the parties' dispute, but the present application was not granted because of the accused's arrest; no relief was issued in these proceedings.

Broader legal implications as articulated by the Court:

Under the amended section 438, mere filing of an anticipatory bail petition does not automatically bar arrest or detention in the absence of a specific court order; the police may lawfully apprehend unless restrained by a court order.
The statutory direction to dispose of an application within thirty days is directory, not mandatory; delay beyond thirty days does not invalidate the application or interim orders.
Interim orders of anticipatory bail may be granted in emergent cases without prior notice to the State, but final orders (particularly in serious offences covered by the proviso) should ordinarily be made only after giving the State at least seven days' notice to present its case.
The opinion emphasizes that anticipatory bail is a protective device for individual liberty and must not be allowed to become an instrument of perpetual immunity; courts retain discretion and must exercise it judicially, consistent with Supreme Court guidance.

The Court did not announce a new binding precedent beyond its interpretation of the amended section and the application of existing Supreme Court guidance; the immediate practical effect was that no order was made because the application was rendered infructuous by arrest.

Show full summary ...

Jyoti Kumar Pathak v. Khudan Chand & Ors.

Khastgir, J.:—In this application under section 438 of the Criminal Procedure Code, the petitioner contended that in view of the amendment that has been incorporated to the said section by an Act of the West Bengal Page: 266Legislature being West Bengal Act No. XXV of 1990 introducing the amendment to the Code of Criminal Procedure (West Bengal Amendment Act of 1988) to section 438 of the Act 2 of 1974, the Police can arrest the petitioner during the pendency of the application for the anticipatory bail in view of the intention of the legislature having been expressed in the said section to prevent a person to move freely by simply filing an application for anticipatory bail.

2. The de facto complainant in the instant case contended that the order passed by the learned District Sessions Judge on 13th November, 1992 ex parte without referring to any materials as contained in the case Diary was illegal and violative of the provisions introduced by this amendment which was mandatory in nature. The provisions of section 438 were introduced by the amendment Act of 1973, in the Original Code of 1898 there was no such provision earlier. It is only at the recommendations of and as per the 48th Report of the Law Commission, the Legislature thought it fit to make a provision under section 438 of the Criminal Procedure Code for the purpose of granting bail to persons apprehending arrest which provides as follows:

“Direction for grant of bail to person apprehending arrest:

(1) When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section; and that court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.

(2) When the High Court or that Court of Sessions make a direction under sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including—

(i) a condition that the person shall make himself available for interrogation by a Police Officer as and when required;

(ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any Police Officer;

(iii) a condition that the person shall not leave India without the previous permission of the Court;

(iv) Such other condition as may be imposed under sub-section (3) of section 437, as if the bail were granted under that section.

(3) If such person is thereafter arrested without warrant by an officer in charge of a Police Station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail, and if a Magistrate taking cognizance of such offence decides that a warrant should issue Page: 267a bailable warrant in conformity with the direction of the Court under sub-section (1)”.

3. Under sub-section (1) the Court may, if it thinks fit that in the event of such arrest if the petitioner is accused of having committed a non-bailable offence, release him on bail.

4. Under sub-section (2) either High Court or the Court of Session may include such conditions and/or such directions in the light of the facts of the particular case as the Court may think necessary including conditions as set out in (i), (ii), (iii) (iv) under sub-section (2) of section 438.

5. Such section was introducted in the Criminal Procedure Code at the recommendations of the Law Commission taking into consideration inter alia the following circumstances namely, (1) sometimes influential persons try to implicate rivals in false cases for the purpose of disgracing them or for the purpose of detaining them in jail for some days for some purpose; (2) in recent times this tendency has been showing signs of steady increase because of the political rivalries; (3) in view of the fact as there seems no justification in the accused person surrendering and remaining in jail before applying for bail where there is no likelihood of his absconding or where he will not misuse otherwise while on bail.

6. However, considering that such order for anticipatory bail may be taken advantage of by unscrupulous and underserving persons so the Law Commission in its 48th report endorsed the view that to prevent such abuse or misuse of the provisions, the final order should be passed only after notice of such application has been served upon the State or through the Public Prosecutor.

7. In view of the pendency of the hundreds of the applications before this Court for anticipatory bail and because of the practice that has developed and/or the convention followed that during the pendency of those applications for anticipatory bail and before the final disposal of the said application the authorities concerned shall not or do not apprehend the petitioner causing great inconvenience to the investigating authority the legislature thought it fit to introduce the amendment to section 438 of Act 2 of 1974 by the Act XXV of 1990 which came into force from 1st October, 1992 which amendment provides as follows:—

“For sub-section (1) of section 438 of the Principal Act, the following sub-sections shall be substituted:—

(1)(a) When any person has reason to believe that he may be arrested in an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail;

Provided that the mere fact that a person has applied to the High Court or the Court of Sessions for a direction under this section shall Page: 268not, in the absence of any order by that Court, be a bar to the apprehension of such person, or the detention of such person in custody, by an officer-in-charge of a Police-Station.

(b) The High Court or the Court of Session, as the case may be, shall dispose of an application for a direction under this sub-section within thirty days of the date of such application:

Provided that where the apprehended accusation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than seven years, no final order shall be made on such application without giving the State not less than seven days' notice to present its case.

(c) If any person is arrested and detained in custody by an Officer-in-charge of a Police station before the disposal of the application of such person for a direction under this sub-section, the release of such person on bail by a Court having jurisdiction, pending such disposal, shall be subject to the provisions of section 437.

(1A) The provisions of sub-section (1) shall have effect notwithstanding anything to the contrary contained elsewhere in this Act or in any judgment, decree or order of any Court, tribunal or other authority.”

8. Mr. Bijoy Bhose, the learned Lawyer appearing on behalf of the petitioner contended that since the incorporation of section 3 as indicated above, the Court should give notice to the State and while releasing the petitioner and/or granting anticipatory bail should impose conditions. In that respect he craved reference to the case reported in AIR 1980 SC 1632 (Gurbaksh Singh v. The State of Punjab) and submitted that although the Court has power to pass interim orders but such orders can only be passed after giving notice to the State and provided such orders also contain conditions imposed by the Court. Under those circumstances he contended that the impugned order passed by the Learned District Judge, Howrah in the instant application is not only bad as it was passed ex parte that is, without giving any notice to the State but also it was bad inasmuch as the Court did not impose any condition for such release.

9. From the perusal of the section 3 and the various sub-sections it clearly indicates that the first proviso to sub-section (1)(a) provides that the mere fact that a person has applied to the High Court or to the Court of Session for a direction under this section that shall not in the absence of any order of Court prevent an apprehension of such person or the detention of such person in custody by an Officer-in-charge of a Police Station. Under the circumstances, the mere filing of a petition for anticipatory bail or pendency of such application by itself will not prevent the apprehension of such person and/or detention of such person in custody by an officer-in-charge of a police station unless there is a specific order by the Court concerned. Similarly, sub-section (b) although provides that the High Page: 269Court or the Court of Session shall dispose of such application within thirty days from the date of such application but such power is merely directive in nature and not mandatory. As a consequence after the period of thirty days neither the application lapses nor any interim order passed on such application becomes ineffective and/or inoperative. So far proviso 2 under sub-section (b) is concerned, it is specifically provided that where accusation relates to an offence punishable with death, imprisonment for life or imprisonment for a period of not less than 10 years, no final order shall be made on such application without giving the State not less than 7 days' notice to present its case. Under those circumstances, it is abundantly clear that it does not prevent the Court from passing any interim order considering the facts and circumstances and exigency of the case. However, the court should not pass any final order in the cases referred to in such proviso without giving an opportunity to the State to present it's case by giving not less than 7 days' notice. There is no restriction to pass an order for interim anticipatory bail without giving, any notice to the State if the Courts think so fit to do so for ends of justice. To give any other construction to the amendment would be to accept a hostile construction to the amended section which was not the intention of the legislature. This construction, in view of this Court would be in consonance with the provision of Article 21 of he Constitution which provides:

“Article 21: No person shall be deprived of his life or personal liberty except according to procedure established by law.”

10. As early as in the year 1977 in the case of Balchand Jain v. State of M.P, reported in AIR 1977 SC 366 the learned Judges of the Supreme Court held that although the section did not require of giving of any notice upon the State but the rule of prudence requires that the notice should be given to the other side before passing the final order for anticipatory bail to prevent such an order being obtained by a party by placing incorrect or misleading facts or by suppression of material facts. However, in emergent cases the Court could make an interim order of anticipatory bail even before issuing such notice to the other side. The whole purpose of granting anticipatory bail is to see that the liberty of the subject is not put in jeopardy on frivolous grounds at the instance of irresponsible persons or officers. Only to ensure that the provisions of anticipatory bail are not obtained at the instance of unscrupulous petitioners it is only expected that no final order should be made without giving notice to the Public Prosecutor or State.

11. In the case reported in AIR 1980 SC (supra) it was held that an order of bail can be passed under section 438 without notice to the Public Prosecutor. But notice should be issued to the Public Prosecutor or the Government Advocate forthwith and the question of bail should be reexamined in the light of the respective contentions of the parties. The ad interim order too must conform to the requirements of the section and suitable conditions should be imposed on the applicant even at that stage.

Page: 27012. As there was no specific provision in the Original section, that a notice has to be served upon the State before any order made under this section, the Supreme Court in the aforesaid decisions indicated that such a notice is to be served upon the State before passing the final order.

13. In paragraph 14 of the case reported in AIR 1980 SC 1632 the learned judges of the Supreme Court observed that generalisations on matters which rest on discretion and the attempt to discover fomulae universal application when facts are bound to differ from case to case frustrate the very purpose of conferring discretion. No two cases are alike on facts and therefore, Courts have to be allowed a little free play in the joins if the conferment of discretionary power is to be meaningful. There is no risk involved in entrusting a wide discretion to the Court of Session and the High Court in granting anticipatory bail because, firstly, these are higher courts manned by experienced persons, secondly, their orders are not final but are open to appellate or revisional scrutiny and above all because, discretion has always to be exercised by courts judicially and not according to whim, caprice or fancy. On the other hand, there is a risk in foreclosing categories of cases in which anticipatory bail may be allowed because life throws up unforeseen possibilities and offers new challenges. Judicial discretion has to be free enough to be able to take these possibilities in its stride and to meet these challenges.

14. The provisions of the anticipatory bail cannot be invoked to arm oneself in perpetuity against any possible arrest. Otherwise, the number of applications for anticipatory bail will be as large as, at any rate, the adult populace. The learned Judges of the Supreme Court very rightly observed in paragraph 35 that anticipatory bail is a device to secure the individual's liberty; it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations, likely or unlikely.

15. In the case reported in 1992 C. Cr. LR (Cal) 344 a Division Bench of this Court presided over by Mr. Justice L.M Ghosh did not consider the amendment to section 438 but rightly observed in paragraph 4 of the judgment that “regarding the other aspect, i.e, mainly the attempt on the part of the Police to arrest petitioners even during the pendency of the matter, undoubtedly as per decision of this Court the Police cannot arrest before the disposal of the petition under Section 438 of the Code of Criminal Procedure unless, however, the amendment has been given effect to.”

16. In view of this amendment the unreported Judgment of the Division Bench presided over by Justice P.C Borooah is of no consequence.

17. Considering that the accused has been apprehended this application has become infructuous, as a result there will be no order on this application.

Bhattacharji, J.:—I agree.

Jyoti Kumar Pathak v. Khudan Chand & Ors.

Structured Summary of the Opinion (Section 438 Application)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's Arguments (as presented by Mr. Bijoy Bhose)

De facto Complainant's Contentions

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Jyoti Kumar Pathak v. Khudan Chand & Ors.

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