Can anticipatory bail order be reviewed?

INTRODUCTION: 

“Can anticipatory bail order be reviewed?” This is the question which has posed before the Supreme Court after it issued a notice to Guwahati High Court relating a order by which the grant of the anticipatory bail to the petitioner was called into question.

WHAT IS THE CASE ABOUT? 

In the case of Anil Hoque Molla v. the State of Assam:

• Accused Anil Hoque Molla has been involved in a cheating case.
• He was granted anticipatory bail by the Guwahati High Court on 13th November 2019.
• In March 2020, the court issued a notice which directed the accused to show cause why bail granted be not cancelled.
• The accused then approached the Apex Court contending that though he was granted bail earlier, another judge has proceeded to issue notice to him on the premise that the bail was granted erroneously earlier.
• It is contended that there is no such power of review in such a matter and this the nail already granted could not have been reviewed in this manner by another judge on the judicial side.

WHAT IS ANTICIPATORY BAIL?

• Though the term ‘anticipatory bail’ is not defined in the Code of Criminal Procedure,in general parlance it refers to a direction by the court to grant bail to a person evenbefore his arrest, that is, someone who is anticipating his arrest.
• Application under Section 438 requests for merely an order passed by the court torelease the applicant on bail in event of his arrest. Thus, the order grantinganticipatory bail becomes operative only when arrest is made.
• Section 438 lays down the law with regard to grant of Anticipatory bail. Sub-section(1) of Section 438 empowers the High Court and the Court of Session to grantanticipatory bail through an application to be filed by a person who has reason tobelieve that he may be arrested on an accusation of commission of a non-bailable offence.

WHAT DID THE COURT SAY IN THE PRESENT CASE?

Staying the proceedings against the accused before the High Court, the bench comprising Justices Sanjay Kishan Kaul and KM Joseph issued notice in theSLP

• Kerala High Court in a recent judgement observed that an order passed by the High Court in criminal jurisdiction can be recalled by invoking the powers under Section 482 Cr.P.C, if legal grounds are properly established by the party. The High Court had recalled a bail order on the ground that the de-facto complainant was not heard and his application for implementation is pending at the time of disposal of the bail application.
• The Court recorded in its order,

"It is her submission that there is no such power of review in such a matter and thus the bail already granted could not have been reviewed in this manner by another Learned judge on the judicial side.”