Pre-arrest Bail not Maintainable in case of Bailable Offence
May 29, 2018
In a recent case (Rajeev Nayan Singh v. State of Bihar), the High Court of Patna took a strong note on the prevalent practice of filing application for pre-arrest bail under Section 438 of CrPC (discretion for granting bail to person apprehending arrest) in cases where the FIR has been registered only for bailable offences. While condemning such acts by Advocates and Lower Courts in disposing bail cases, the High Court made the following observations in the case:
That the right to claim bail granted by Section 436 of the Cr. P.C. in a “bailable offence” is an absolute and indefeasible right. In such case, there is no question of discretion in granting bail as the words of Section 436 are imperative. Thus, there is no question of discretion in such matters. With reference to the facts of the case at hand wherein FIR had been registered against the accused only for bailable offences, the Court stated that instead of appearing before the court of Magistrate and seeking bail under Section 436 of the Cr. P.C., the lawyer conducting the case in the court below filed an application under Section 438 of the Cr. P.C. seeking pre-arrest bail.
That from reading of Section 438(1) of the Cr. P.C., it would appear that there must be an accusation against the person concerned of having committed non-bailable offences for which he has reason to believe of getting arrested. Only on such condition precedent, he may approach either the High Court or the Court of Session for a direction that he may be released on bail in the event of such arrest.
That it is not expected from an advocate that he would suggest his client to file pre-arrest bail application in a case instituted only for bailable offences. The lawyer appearing for the State is also not expected to oppose the application mechanically. He also has a duty to assist the Court in arriving at a just decision in a case.
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