No Blanket Order Should Be Passed Under S.438 CrPC To Prevent Arrest Of Accused When No Crime Is Registered Against Him: Kerala High Court [Read Order]

The Bench of Justice P. Somarajan specifically observed,

"No blanket order should be passed under Section 438 Cr.P.C. to prevent the accused from being arrested when there is no crime registered against him".

Matter before the Court

A person (Ansar M.C.) was granted the anticipatory bail granted under Section 438 Cr.P.C. by the learned Sessions Judge. The State Government challenged the said order in the High Court on the simple reason that no crime was registered against the accused/first respondent till that time (when he was granted Pre Arrest Bail).

It was further submitted before the High Court that after more or less one month, the first respondent was impleaded in the array of accused. The crime was earlier registered on the allegation of the offence under Section 307, 324 r/w Section 34 IPC. Subsequently, Section 326 IPC was incorporated.

Thus, an application was submitted before the High Court both under Section 482 and 439(2) Cr.P.C. on the allegation that the earlier order granting anticipatory bail was used by the first respondent to avoid his arrest in connection with his impleadment subsequently, as an accused in the existing crime.

To this, the High Court said,

"Going by the order granting anticipatory bail, prima facie, it appears that a fatal mistake crept in the order. When no crime was registered against the first respondent, it is not permissible to grant anticipatory bail, on the reason that it would act as a blanket as against all sort of accusations which may arise in future against the said person."

The Court further said,

"The procedure to be adopted is to direct the investigation to comply with the requirement under Section 41 A Cr.P.C., before effecting the arrest of accused so as to enable him to exhaust the remedy under Section 438 Cr.P.C."

Importantly, the Court said that the defect crept in the order (of the Sessions Court) "cannot be cured under Section 439(2) Cr.P.C. because of the reason that the accused will get a right to exhaust the remedy under Section 438 Cr.P.C. based on the subsequent accusation and it cannot be curtailed by invoking the jurisdiction under Section 439(2) Cr.P.C".

Lastly, the Court said that,

"By reserving the right of the first respondent to exhaust the remedy under Section 438 Cr.P.C. based on the present accusation, it is fit and proper to set aside the order granting anticipatory bail on the ground of nonregistration of crime."

Hence, the inherent power under Section 482 Cr.P.C. was invoked by the High Court and the order granting anticipatory bail was thereby quashed.

Blanket Order Under Section 438 CrPC

It may be noted that while relying on the Apex Court's ruling in the Case of Gurbaksh Singh Sibbia Etc vs State Of Punjab 1980 AIR 1632, the Supreme Court in January 2020 in the Case of Sushila Aggarwal and others v.State (NCT of Delhi) and another AIR 2020 SC 831 ruled that,

"An order of anticipatory bail should not be "blanket" in the sense that it should not enable the accused to commit further offences and claim relief of indefinite protection from arrest. It should be confined to the offence or incident, for which apprehension of arrest is sought, in relation to a specific incident. It cannot operate in respect of a future incident that involves the commission of an offence." (emphasis supplied)

In Gurbaksh Singh Ruling (supra), the Apex Court had specifically noted,

"A blanket order of anticipatory bail is bound to cause serious interference with both the right and the duty of the police in the matter of investigation because, regardless of what kind of offence is alleged to have been committed by the applicant and when, an order of bail which comprehends allegedly unlawful activity of any description whatsoever, will prevent the police from arresting the applicant even if he commits, say, a murder in the presence of the public. Such an order can then become a charter of lawlessness and a weapon to stifle prompt investigation into offences which could not possibly be predicated when the order was passed. Therefore, the court which grants anticipatory bail must take care to specify the offence or offences in respect of which alone the order will be effective. The power should not be exercised in a vacuum." (emphasis supplied)

Further, in the case of Adri Dharan Das v. State of West Bengal (2005) 4 SCC 303, the Supreme Court again referred to the Gurbaksh Singh Ruling (supra), and observed that normally, no direction should be issued to the effect that the applicant should be released on bail "whenever arrested for whichever offence whatsoever".

The Court had further noted that such an order should not be passed as it would serve as a blanket to cover or protect any and every kind allegedly unlawful activity. An order under Section 438 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.

Notably, Justice Anoop Chitkara has been mentioning this in the Anticipatory bail orders signed by him that "the present bail order is only for the FIR mentioned above. It shall not be a blanket order of bail in any other case(s) registered against the petitioner." [For example, see the recent case of Bhoop Singh @ Bhupesh vs State Of Himachal Pradesh Cr.MP(M) No. 1202 of 2020]