Response

The provisions of Section 438 of The Code of Criminal Procedure cannot be invoked after the accused has been arrested and after arrest, if he is to be released on bail then he must seek remedy under Section 437 or Section 439 of The Code of Criminal Procedure. Section 438(1) lays down “when a person having reason to believe that he may get arrested for a non-bailable offence then he can apply for anticipatory bail to the High Court or the Court of Session and it is at the discretion of the Court that whether they want to give bail or not.” Thus, anticipatory bail is not a matter of right of the accused as regular bail in case of bailable offence or the default bail under Section 167(2) of The Code of Criminal Procedure.

If a Magistrate taking congnizance of such offence and decides to issue a warrant in the first instance against that person, then such warrant has to be a bailable warrant but if suppose the Magistrate issued a non-bailable warrant as he did not know about the anticipatory bail order of the accused then if the executive officer of the court came to know about the bail order then he may convert it into bailable warrant and will report the same to the magistrate through the police officer.

Reference: Section 438 of The Code of Criminal Procedure

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LAWAYZ-2023-201