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(Feb 02, 2008) In criminal cases in India, an accused may petition a court to grant bail in anticipation of an arrest by the police on the basis of registration of a complaint against him. However, the law requires the petitioner to be present in court at the hearing of the petition so that the police may arrest him if his plea is denied.

The Law Commission of India has proposed a change to the above law, by deletion of a provision, inserted last year, that empowered the court, upon a prosecutor's application, to order the accused-applicant to be present at the final hearing (Code of Criminal Procedure [CrPC], 1973, §438, sub-sec. 1 B). In the Commission's view, the provision enables the police to arrest the accused in the court without a warrant on the basis of an accusation that is yet to be established.

Relying on a decision of the Supreme Court of India for the proposed change, the Commission, in an 89-page report, stated that the Supreme Court had observed that the mere rejection of anticipatory bail "is no ground for directing the immediate arrest of accused." The report further states that even after the rejection of a bail petition, it is possible that the accused might not be sent for trial if the police, after investigation, find that there is no material evidence against him. "Power of arrest, therefore, has to be exercised with due caution and circumspection and not in a mechanical manner," it added. (Law Commission Suggests Change in Criminal Law Provision, THE HINDU, Dec. 26, 2007, available at

Author: Krishan Nehra More by this author
Topic: Crime and law enforcement More on this topic
Jurisdiction: India More about this jurisdiction

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Last updated: 02/02/2008