Direction for grant of bail to person apprehending arrest is defined under Section 438 of CRPC 1973. Provision under this section is:
Section 438 of CRPC "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
Sessions 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 the Court of Sessions makes a
direction under sub-section (1), it may include such
conditions in such direction 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.
(2) 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 be issued in the first instance against that
person, he shall issue a bailable warrant in
conformity with the direction of the Court under sub-section
(1).
STATE AMENDMENTS
Maharashtra:- Substitute the following section for section
438:-
"438 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 sessions
for a direction under this section that in the event of such
arrest, he shall be released on bail, and that Court may, after
taking into consideration, inter alia, the following factors:-
(i) the nature and gravity or seriousness of the accusation
as apprehended by the applicant;
(ii) the antecedents of the applicant including the fact as
to whether he has, on conviction by a Court,
previously undergone imprisonment for a term in respect of
any cognizable offence;
(iii) the likely object of the accusation to humiliate or
malign the reputation of the of the applicant by having him so arrested, and
(iv) the possibility of the applicant, if granted
anticipatory bail, fleeing from justice;
either reject the application forthwith or issue an interim
order for the grant of anticipatory bail:
Provided that, where the High Court or as the case may be,
the Court of Sessions, has not passed any interim order under
this sub-section or has rejected the application for grant of
anticipatory bail, it shall be open to an officer in charge of a
police station to arrest, without warrant the applicant on the
basis of the accusation apprehended in such application.
(2) Where the High Court or, as the case may be, the Court
of Session, considers it expedient to issue an interim order to
grant anticipatory bail under sub-section (1) the Court shall
indicate therein the date, on which the application for grant
of, anticipatory bail shall be finally heard for passing an
order thereon, as the Court may deem fit and if the Court passes
any order granting anticipatory bail, such order shall include
inter alia the following conditions, namely:-
(i) that the applicant shall make himself available for
interrogation by a police officer as and when required;
(ii) that the applicant shall not, directly or indirectly,
make any inducement, threat or promise to any person
acquainted with the facts of the accusation against him so
as to dissuade him from disclosing such facts to
the Court or to any police officer;
(iii) that the applicant shall not leave India without the
previous permission of the Court; and
(iv) such other condition as may be imposed under sub-
section (3) of Section 437 as if the bail was granted under that section.
(3) Where the Court grants an interim order under
sub-section (1), it shall forthwith cause a notice, being not
less than seven days' notice, together with a copy of such order
to be served on the Public Prosecutor and the Commissioner of
Police, or as the case may be, the concerned Superintendent of
Police, with a view to give the Public Prosecutor a reasonable
opportunity of being heard when the application shall be finally
heard by the Court.
(4) The presence of the applicant seeking anticipatory bail
shall be obligatory at the time of final hearing of the
application and passing of final order by the Court if on an
application made to it by the Public Prosecutor, the Court
considers such presence necessary in the interest of Justice.
(5) On the date indicated in the interim order under
sub-section (2), the Court shall hear the Public Prosecutor and
the applicant and after due consideration of their contentions,
it may either confirm, modify or cancel the interim order made
under sub-section (1)" Maharashtra Act XXIV of 1993.
Orissa the following proviso after sub-section (I):-
"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
notice to present its case". Orissa Act 11 of 1988, w.e.f
22-7-1988.
Uttar Pradesh :- Section 438 shall be omitted. - U.P. Act 16
of 1976, w.e.f. 1-5-1976.
West Bengal :- Substitute the following, for sub-section.
(I):-
"(1) (a) 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 Sessions
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 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.
(b) The High Court or the Court of Sessions, 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 " sub-section,
the release of such person on bail by a Court having
jurisdiction pending such be subject to the provision of section
437.
(IA) 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 any Court, Tribunal or
other Authority." W.B. Act 25 of 1990.
PROVISIONS AS TO BAIL AND BONDS