• Anticipatory Bail application u/s 438 CrPC & Relaxing Conditions application u/s 439(1)(b) CrPC

Accused got the anticipatory bail u/s 438 of CrPC with a condition: "Everyday accused to attend Police Station at 10am"

Subsequently, by mentioning certain reasons, accused applied for the relaxation of conditions in the said anticipatory bail u/s 439(1)(b). 

Learned Sessions court considered the said relaxing conditions application u/s 439(1)(b) and gave the order in favour of the accused as: "Accused to attend Police Station once a month". 

Is it possible because 439 section of CrPC is for the person who is already arrested or in custody? Accused was never arrested and he was never in custody. 

I'm planning to challenge the application u/s 439(1)(b) as I believe its illegal. I might be incorrect, kindly advise.
Asked 9 months ago in Criminal Law
Religion: Hindu

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20 Answers

The Court may often pose a condition on the accused to not leave the territory of the respective state or the country considering that the accused may have to cooperate with the police authorities for investigation and interrogation purposes. 

However, in certain cases it becomes necessary for the accused to get the conditions relaxed.

In such circumstances the accused can approach the court of sessions or the High Court under section 439 of the Criminal Procedure Code,1973 and seek relaxation in bail conditions while furnishing valid and sound reasons.

Under Section 439(1) (b), the High Court or the Court of Sessions can set aside or modify any condition imposed by a magistrate when releasing an accused on bail.

T Kalaiselvan
Advocate, Vellore
85166 Answers
2222 Consultations

5.0 on 5.0

Yes it’s illegal 

Prashant Nayak
Advocate, Mumbai
32093 Answers
183 Consultations

4.1 on 5.0

1) If the accused is able to satisfy the court that he has followed all the bail conditions and cooperated with the police or investigating authorities then the court may modify or relax the bail conditions.

 

 

Court can relax the condition of accused having to appear in police station daily . It is fair order that accused appear in police station once in a month 

 

 

 

Ajay Sethi
Advocate, Mumbai
94965 Answers
7576 Consultations

5.0 on 5.0

Section 439 of the Code of Criminal Procedure, 1973 grants significant discretionary powers to the High Court and the Court of Session to grant or deny bail in certain circumstances and also allows them to modify or set aside bail conditions imposed 

Ajay Sethi
Advocate, Mumbai
94965 Answers
7576 Consultations

5.0 on 5.0

Hi, 

Yes, you are right 439(1)(b) is not the right section to apply in the present case. Further the Hon'ble sessions court has become functus officio after passing the order, it was not right for the Hon'ble court to apply strict condition first and relax the same on the other application under section 439(1)(b).

Thanks

Jagvir Singh Sorout
Advocate, Hodal, Haryana
11 Answers

Not rated

The provisions for relaxing the conditions for bail is that only.

The law cannot be changed for you.

In fact after AB, the accused has to surrender before court in order to be enlarged on regular bail.

Therefore it is proper that the said provisions of law will applicable for relaxation of the conditions of bail

T Kalaiselvan
Advocate, Vellore
85166 Answers
2222 Consultations

5.0 on 5.0

The court will reject the application if it is not proper or if the procedures were not adhered to.

T Kalaiselvan
Advocate, Vellore
85166 Answers
2222 Consultations

5.0 on 5.0

You are at liberty to challenge the order passed by sessions court relaxing conditions of anticipatory bail 

Ajay Sethi
Advocate, Mumbai
94965 Answers
7576 Consultations

5.0 on 5.0

Your opinion and explanation is not correct. When the accused was released on a anticipatory bail then it means that accused remain under custody of court though custody is symbolic in nature. So as such nothing wrong on part of court to grant relaxation under 439 (1) cr.p.c. 

Siddharth Srivastava
Advocate, Delhi
1256 Answers

5.0 on 5.0

Anticipatory Bail or Pre-arrest Bail: It is a legal provision that allows an accused person to apply for bail before being arrested. In India, pre-arrest bail is granted under section 438 of the Code of Criminal Procedure, 1973. It is issued only by the Sessions Court and High Court.

The AB is granted under section 438 after which the accused has to file an application for regular bail under section 439.

While the court which grants bail under Section 439 of the Code of Criminal Procedure 1973 can impose conditions which ensure the presence of the accused to face trial,

While exercising power Under Section 438 of the Code, the Court is duty bound to strike a balance between the individual's right to personal freedom and the right of investigation of the police. For the same, while granting relief under Section 438(1), appropriate conditions can be imposed Under Section 438(2) so as to ensure an uninterrupted investigation. The object of putting such conditions should be to avoid the possibility of the person hampering the investigation.

Section 439 of the Code of Criminal Procedure, 1973 grants significant discretionary powers to the High Court and the Court of Session to grant or deny bail in certain circumstances and also allows them to modify or set aside bail conditions imposed by a Magistrate. One has to file an application under Section 439(1)(b) CrPC before the concerned Court of Session or High Court to be allowed relaxation of bail conditions. 

 

T Kalaiselvan
Advocate, Vellore
85166 Answers
2222 Consultations

5.0 on 5.0

Court granting anticipatory bail must have asked accused  to furnish surety along with personal bond before the local jurisdictional police station or to appear before lower court and apply for bail.

 

as such accused applied for regular bail 

 

then he applied to court for relaxation of conditions 

Ajay Sethi
Advocate, Mumbai
94965 Answers
7576 Consultations

5.0 on 5.0

If you are sure that the court has not followed the procedures of law and there is a lapse on the part of the court, you can file a  revision petition against the order before the high court and get the court order cancelled in this regard.

T Kalaiselvan
Advocate, Vellore
85166 Answers
2222 Consultations

5.0 on 5.0

- As per criminal law, Regular bail is granted after an arrest has been made, while anticipatory bail is granted before an arrest is made.

- Further, as per Supreme Court in the matter of Sushila Aggarwal versus. NCT of Delhi  there is no provision of time restriction in the applicability of an anticipatory bail, granted under Section 438 of the Code of Criminal Procedure (Cr. P.C), 1973.

- Hence, after getting the anticipatory bail , it is not mandatory to take regular bail from the court , and the accused will be considered as on bail for whole trial of the case. 

- Further, under Section 439(1) (b), the High Court or the Court of Sessions can set aside or modify any condition imposed by a magistrate when releasing an accused on bail

- So, the Session court is rightly allowed his application u/s 439(1)(b) , as this application is maintainable even after getting the anticipatory bail as well. 

Mohammed Shahzad
Advocate, Delhi
13377 Answers
199 Consultations

5.0 on 5.0

File an appeal against the impugned order relaxing conditions of AB

Ajay Sethi
Advocate, Mumbai
94965 Answers
7576 Consultations

5.0 on 5.0

you seems right it was not right for Hon'ble sessions court to allowed the second application for relaxation of condition when Hon'ble court thinks otherwise on first instance and further section 493(1)(b) is applicable for modification of conditions imposed by Magistrate. As far as cases decided by Hon'ble High Court are concerned, it has wide appellate powers as well as inherent powers under section 482 Cr.P.C. High court may do as well as undo, but sessions court has limited powers comparatively.

Thanks,

Jagvir Singh Sorout
Advocate, Hodal, Haryana
11 Answers

Not rated

Accused was not in custody 

Ajay Sethi
Advocate, Mumbai
94965 Answers
7576 Consultations

5.0 on 5.0

- My details reply is mentioned above

- You can file a Revision Petition before the court or higher court against the said order of the court. 

Mohammed Shahzad
Advocate, Delhi
13377 Answers
199 Consultations

5.0 on 5.0

You have been advised to prefer a revision petition before high court if you are aggrieved by the decision of the trial court to relax the conditions of bail under the said provisions of law.

T Kalaiselvan
Advocate, Vellore
85166 Answers
2222 Consultations

5.0 on 5.0

 

Dear Querist

My opinion on your queries are as under: 

 

Accused got the anticipatory bail u/s 438 of CrPC with a condition: "Everyday accused to attend Police Station at 10am"

Subsequently, by mentioning certain reasons, accused applied for the relaxation of conditions in the said anticipatory bail u/s 439(1)(b).

Learned Sessions court considered the said relaxing conditions application u/s 439(1)(b) and gave the order in favour of the accused as: "Accused to attend Police Station once a month".

Is it possible because 439 section of CrPC is for the person who is already arrested or in custody? Accused was never arrested and he was never in custody.

Opinion: As per section 439 Criminal Procedure Code, 1973 the High Court and Session Court has special power. After careful reading of the section it is very much clear. The section 439 crpc is reproduced herein for ready reference: 

I'm planning to challenge the application u/s 439(1)(b) as I believe its illegal. I might be incorrect, kindly advise.

  1. Special powers of High Court or Court of Session regarding bail.

(1) A High Court or Court of Session may direct-

(a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in subsection (3) of section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub- section;

 

(b) that any condition imposed by a Magistrate when releasing an person on bail be set aside or modified:

 When a bail was granted under section 438 Cr.P.C. then section 439 (1)(b) of Crpc shall not apply as this clause of sub section 1 is related to only the modification of conditions imposed by the Magistrate and not otherwise. Only the High Court may modify the conditions imposed in the bail order under section 482 Cr.P.C. and not under section 439(1)(b) of Cr.P.C.

You may challenge the same by filing Criminal Misc. Petition before Hon’ble High Court challenging the order of modification if passed under section 439 (1)(b) of Cr.P.C.

Section 438 CrPC is before arrest and 439(1)(b) CrPC is after arrest. But in my case, accused was never arrested. How is that they can use this section 439(1)(b) CrPC to relax the conditions when they were never arrested?

Opinion: In anticipatory bail, the Police arrested the accused and then released him/her and investigate the matter and for the interogation arresting is required, so the person arrested after the anticipatory bail shall be cover by this section but the modification is related to order of the magistrate and not session court or high court passed in anticipatory bail u/s 438 crpc.

 

"If the accused is able to satisfy the court that he has followed all the bail conditions and cooperated with the police or investigating authorities then the court may modify or relax the bail conditions" -- Agree with this but the section 439(1)(b) CrPC under which they applied for relaxing the conditions is not applicable I assume because 439(1)(b) CrPC is after arrest.

Opinion; As above.

Shouldn't they be applying for regular bail under 439 first and once they get the regular bail, they can use 439(1)(b) to relax the conditions? Here, they directly jumped from 438 CrPC of anticipatory bail to 439(1)(b) of regular bail for relaxing the conditions?

439 regular bail application is missing by them. Am I right here?

Opinion: As above. 439 (1)(b) will not be apply in this senerio.

I'm reading "Union Of India vs Mansoor Abdulla K.S on 26 July, 2022" IN THE HIGH COURT OF KARNATAKA AT BENGALURU - https://indiankanoon.org/doc/140372397/

Para 9 of the judgment says, “The respondent/accused No.3 files an application seeking anticipatory bail under Section 438 of the Cr.P.C. and the concerned Court grants him bail by the following order: Petition filed by the petitioner under Section 438 of the Cr.P.C. is hereby allowed. Bail was granted subject to the condition that the petitioner shall give attendance before the Investigating Officer once in 15 days at a particular time till filing of the charge sheet”.

Para 10 of the said judgment says,” The respondent/accused No.3 files application for regular bail in Special C.C.No.271 of 2020 before the learned Sessions Judge under Section 439 of the Cr.P.C. Regular bail was granted with certain set of conditions.

After grant of bail on [deleted] subject to the afore-quoted conditions the respondent/accused No.3 files an application under Section 439(1)(b) of the Cr.P.C. for relaxation of bail conditions imposed on [deleted] and permit him to travel abroad for his avocation.”

Question:

Why the respondent/accused No.3 did not directly go from 438 CRPC to 439(1)(b)?

Opinion: in some of the state in India, the procedure has been adopted for regular bail after filing of the chargesheet even after obtaining the anticipatory bail. Even the Hon’ble APex Court held in sushila case that the period of anticipatory is for whole trial and there is no requirement for filing regilar bail again before the Trial court during the trail.

 Why did respondent/accused No.3 took regular bail under 439 of the Cr.P.C after AB bail under 438 CRPC and then finally moved to 439(1)(b) of the Cr.P.C for relaxing the conditions?

Opinion: there is no answer of “Why”, its upto the accused and his counsel.

I might be missing on certain other conditions or some circumstances clause. Please correct me as I am in the learning phase.

This is what I'm trying to say that "Accused did not apply for regular bail". Directly after 438 CrPC, Accused applied for 439(1)(b). I can confirm from the ecourts website as well.

Sessions court considered the application of accused under 439(1)(b) and relaxed his conditions. There is no mentioning of regular bail or asking accused to apply for regular bail under 439 anywhere.

From section 6.3.12 - https://www.advocatekhoj.com/library/lawreports/criminalprocedure/8.php

"When is a person in custody, within the meaning of Section 439 Cr.P.C.? When he is in duress either because he is held by the investigating agency or other police or allied authority or is under the control of the court having been rem&ed by judicial order, or having offered himself to the Court's jurisdiction & submitted to its orders by physical presence. No lexical dexterity nor precedential profusion is needed to come to the realistic conclusion that he who is under the control of the court or is in the physical hold of an officer with coercive power is in custody for the purpose of Section 439. This word is of elastic semantics but its core meaning is that the law has taken control of the person.

The equivocatory quibbling & hide-&seek niceties sometimes heard in court that the police have taken a man into informal custody but not arrested him, have detained him for interrogation but not taken him into formal custody & other like terminological dubieties are unfair evasions of the straightforwardness of the law. We need not dilate on this shady facet here because we are satisfied that the accused did physically submit before the Session Judge & the jurisdiction to grant bail thus arose.

Custody, in the context of Section 439, (we are not, be it noted, dealing with anticipatory bail under Section 438) is physical control or at least physical presence of the accused in court coupled with submission to the jurisdiction & orders of the Court.

Opinion: In anticipatory bail there is a condition that “ in the event of arrest by the police the petitioner be released on bail” so at the time of arrest the accused is in custody.

He can be in custody not merely when the police arrests him, produces him before a Magistrate & gets a rem& to judicial or other custody. He can be stated to be in judicial custody when he surrenders before the court & submits to its directions"

In my case, accused got anticipatory bail u/s 438 of CrPC with a condition & then condition is relaxed u/s 439(1)(b) of CrPC. Both by Sessions Court. Were they in custody ever?

Opinion: yes, he was in custody and section 439(1)(b) is nowhere mentioned that the acccused should be in custody at the time of applying relaxation/modification of bail’s conditions.

Section 362 of Crpc bar the court to relax/modify the conditions of the bail. Only the high court has power to modify the condition imposed under section 438 Crpc under section 482 of Cr.P.C.

 

Feel Free to Call

Nadeem Qureshi
Advocate, New Delhi
6307 Answers
302 Consultations

4.9 on 5.0

Yes in 439 it’s always after custody it Surender I’m court

Prashant Nayak
Advocate, Mumbai
32093 Answers
183 Consultations

4.1 on 5.0

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