Grant of Bail Contrary
Grant of Bail Contrary
Grant of Bail Contrary
Versus
JUDGMENT
M.R. SHAH, J.
1
(2016) 1 SCC 152 on one side and in the cases of Salauddin
SCC 608; Nirmal Jeet Kaur v. State of M.P. (2004) 7 SCC 558;
HDFC Bank Limited v. J.J. Mannan (2010) 1 SCC 679; and Satpal
Amicus Curiae relying upon the decision of this Court in the case
their rivals in false cases for the purpose of disgracing them or for
3
is submitted that the Law Commission further observed that with
signs of steady increase. Apart from false cases, where there are
first submit to custody, remain in prison for some days, and then
in that case, he can apply for “anticipatory bail” and after notice
It is submitted that even in a case where the FIR is lodged but the
investigation has not yet begun, i.e., pre investigation stage, the
4
High Court or the Sessions Court grants “anticipatory bail” and
anticipation granted.
has observed and held that the facility which Section 438, Cr.
5
from restraint, more particularly, release from the custody of the
be released on bail.
6
2.4 Shri Harin P. Raval, learned Senior Advocate appearing as
questions before this Court are, (a) what is the life or currency of
been passed, whether the said anticipatory bail only survives till
been granted?
7
can vary from a few weeks to even such duration until charge
sheet has been filed and which may also extend to the entire
(supra).
Mhetre (supra), this Court has taken the view that the order of
8
Satlingappa Mhetre (supra) in paragraphs 94, 95, 98, 100, 122
and 123.
paragraphs 95, 108, 122 and 123 does not take into
clearly cull out that the discretion of the Sessions Court or a High
the anticipatory bail taking into account all relevant factors which
9
2.7 It is further submitted by Shri Raval, learned Amicus Curiae
that the discretion of the Sessions Court and the High Court is
the anticipatory bail to subsist for the entire duration of the trial,
(supra).
10
1) that the power vested by the Parliament on superior
11
3) that the life of the order granting anticipatory bail can
the outer limit of 14 days) and then leave it open for the
12
may therefore be safer to adhere to the earlier practice
interrogated; and
cancellation of bail.
exactly like the exercise of power under Sections 437 and 439
13
of the Cr.P.C. It is submitted therefore, the prearrest bail
14
bare reading of the section that the power of arrest cannot be
649 (para 15) has held that it was not mandatory for the
15
would be a grave violation of a person’s right and liberty. It is
16
3.4 Taking us to the recommendations in the 41 st Report of
against false cases, but also in cases where the need to arrest
arrest bail order has been made under Section 438 has first
17
to be arrested. Such a person is then released on bail on the
basis of the prearrest bail order. For such release the person
person who has been granted bail under Section 438 ought
section.
18
High Court under Section 439(2), Cr.P.C., which gives power
passed under Section 438 will continue till the trial unless in
of the case and the stages at which the power under Section
19
3.7 Shri Vishwanathan, learned Amicus Curiae, while
like the orders of bail passed under Sections 437 and 439 of
the Code; the Code does not contemplate any power in the
the event of the police making out a case, the Court has all
of
20
extent. It is submitted that to the extent Siddharam
the same time, merely stated that “normal rule” should be not
21
consider the observations in Gurbaksh Singh Sibbia (supra),
bail can be granted for a limited time period, the life of which,
22
Bank Limited (supra), to that extent, may not lay down the
hampered mechanically.
the prearrest bail under Section 438 Cr.P.C. shall not affect
23
the right of the investigating agency to seek custodial
remain operational till the end of the trial will effectively make
24
report/ charge sheet or committal proceedings. It is
by the Parliament.
25
of anticipatory bail as enunciated by the Constitution Bench
incuriam.
26
Bench in not putting any fetters or limitations on the
parties at length.
27
arrest”. As held by this Court, the expression “anticipatory
28
under Section 438 and the bail order under Section 437 &
bail order under Section 438 and the bail order under
Sections 437 and 439 is the stages at which the bail order is
29
summarising, what according to it was the true legal position,
thus,
30
offences involving blatant corruption at the
higher rungs of the executive and political
power, the discretion under Section 438 of
the Code should not be exercised; and
(8) Mere general allegations of mala fides in the
petition are inadequate. The court must be
satisfied on materials before it that the
allegations of mala fides are substantial and
the accusation appears to be false and
groundless.”
under Section 438, Cr.P.C. and while not agreeing with the
31
pattern which could easily be adopted with the necessary
modifications, it would be wrong to refuse to give to the
departure its full effect by assuming that it was not
intended to serve any particular or specific purpose. The
departure, in our opinion, was made advisedly and
purposefully: Advisedly, at least in part, because of the
41st Report of the Law Commission which, while pointing
out the necessity of introducing a provision in the Code
enabling the High Court and the Court of Session to grant
anticipatory bail, said in para 39.9 that it had “considered
carefully the question of laying down in the statute certain
conditions under which alone anticipatory bail could be
granted” but had come to the conclusion that the question
of granting such bail should be left “to the discretion of the
court” and ought not to be fettered by the statutory
provision itself, since the discretion was being conferred
upon superior courts which were expected to exercise it
judicially. The legislature conferred a wide discretion on
the High Court and the Court of Session to grant
anticipatory bail because it evidently felt, firstly, that it
would be difficult to enumerate the conditions under which
anticipatory bail should or should not be granted and
secondly, because the intention was to allow the higher
courts in the echelon a somewhat free hand in the grant of
relief in the nature of anticipatory bail. That is why,
departing from the terms of Sections 437 and 439, Section
438(1) uses the language that the High Court or the Court
of Session “may, if it thinks fit” direct that the applicant be
released on bail. Subsection (2) of Section 438 is a further
and clearer manifestation of the same legislative intent to
confer a wide discretionary power to grant anticipatory
bail. It provides that the High Court or the Court of Session,
while issuing a direction for the grant of anticipatory bail,
“may include such conditions in such directions in the light
of the facts of the particular case, as it may think fit”,
including the conditions which are set out in clauses (i) to
(iv) of subsection (2). The proof of legislative intent can best
be found in the language which the legislature uses.
32
Ambiguities can undoubtedly be resolved by resort to
extraneous aids but words, as wide and explicit as have
been used in Section 438, must be given their full effect,
especially when to refuse to do so will result in undue
impairment of the freedom of the individual and the
presumption of innocence. It has to be borne in mind that
anticipatory bail is sought when there is a mere
apprehension of arrest on the accusation that the applicant
has committed a non bailable offence. A person who has
yet to lose his freedom by being arrested asks for freedom
in the event of arrest. That is the stage at which it is
imperative to protect his freedom, insofar as one may, and
to give full play to the presumption that he is innocent. In
fact, the stage at which anticipatory bail if generally sought
brings about its striking dissimilarity with the situation in
which a person who is arrested for the commission of a
nonbailable offence asks for bail. In the latter situation,
adequate data is available to the court, or can be called for
by it, in the light of which it can grant or refuse relief and
while granting it, modify it by the imposition of all or any of
the conditions mentioned in Section 437.
33
bail, should be cut down by reading into the statute
conditions which are not to be found therein, like those
evolved by the High Court or canvassed by the learned
Additional Solicitor General. Our answer, clearly and
emphatically, is in the negative. The High Court and the
Court of Session to whom the application for anticipatory
bail is made ought to be left free in the exercise of their
judicial discretion to grant bail if they consider it fit so to do
on the particular facts and circumstances of the case and
on such conditions as the case may warrant. Similarly,
they must be left free to refuse bail if the circumstances of
the case so warrant, on considerations similar to those
mentioned in Section 437 or which are generally
considered to be relevant under Section 439 of the Code.
34
been easier for the legislature than to introduce into the
latter section a similar provision. We have already pointed
out the basic distinction between these two sections.
Section 437 applies only after a person, who is alleged to
have committed a nonbailable offence, is arrested or
detained without warrant or appears or is brought before a
court. Section 438 applies before the arrest is made and, in
fact, one of the preconditions of its application is that the
person, who applies for relief under it, must be able to
show that he has reason to believe that “he may be
arrested”, which plainly means that he is not yet arrested.
The nexus which this distinction bears with the grant or
refusal of bail is that in cases falling under Section 437,
there is some concrete data on the basis of which it is
possible to show that there appear to be reasonable
grounds for believing that the applicant has been guilty of
an offence punishable with death or imprisonment for life.
In cases falling under Section 438 that stage is still to
arrive and, in the generality of cases thereunder, it would
be premature and indeed difficult to predicate that there
are or are not reasonable grounds for so believing. The
foundation of the belief spoken of in Section 437(1), by
reason of which the court cannot release the applicant on
bail is, normally, the credibility of the allegations contained
in the first information report. In the majority of cases
falling under Section 438, that data will be lacking for
forming the requisite belief. If at all the conditions
mentioned in Section 437 are to be read into the provisions
of Section 438, the transplantation shall have to be done
without amputation. That is to say, on the reasoning of the
High Court, Section 438(1) shall have to be read as
containing the clause that the applicant “shall not” be
released on bail “if there appear reasonable grounds for
believing that he has been guilty of an offence punishable
with death or imprisonment for life”. In this process one
shall have overlooked that whereas, the power under
Section 438(1) can be exercised if the High Court or the
Court of Session “thinks fit” to do so, Section 437(1) does
35
not confer the power to grant bail in the same wide terms
The expression “if it thinks fit”, which occurs in Section
438(1) in relation to the power of the High Court or the
Court of Session, is conspicuously absent in Section 437(1).
We see no valid reason for rewriting Section 438 with a
view, not to expanding the scope and ambit of the
discretion conferred on the High Court and the Court of
Session but, for the purpose of limiting it. Accordingly, we
are unable to endorse the view of the High Court that
anticipatory bail cannot be granted in respect of offences
like criminal breach of trust for the mere reason that the
punishment provided therefor is imprisonment for life.
Circumstances may broadly justify the grant of bail in such
cases too, though of course, the court is free to refuse
anticipatory bail in any case if there is material before it
justifying such refusal.
36
438(2) so as to ensure an uninterrupted investigation. One
of such conditions can even be that in the event of the
police making out a case of a likely discovery under Section
27 of the Evidence Act, the person released on bail shall be
liable to be taken in police custody for facilitating the
discovery. Besides, if and when the occasion arises, it may
be possible for the prosecution to claim the benefit of
Section 27 of the Evidence Act in regard to a discovery of
facts made in pursuance of information supplied by a
person released on bail by invoking the principle stated by
this Court in State of U.P. v. Deoman Upadhyaya [AIR 1960
SC 1125 : (1961) 1 SCR 14, 26 : 1960 Cri LJ 1504] to the
effect that when a person not in custody approaches a
police officer investigating an offence and offers to give
information leading to the discovery of a fact, having a
bearing on the charge which may be made against him, he
may appropriately be deemed so have surrendered himself
to the police. The broad foundation of this rule is stated to
be that Section 46 of the Code of Criminal Procedure does
not contemplate any formality before a person can be said
to be taken in custody: submission to the custody by word
or action by a person is sufficient. For similar reasons, we
are unable to agree that anticipatory bail should be refused
if a legitimate case for the remand of the offender to the
police custody under Section 167(2) of the Code is made
out by the investigating agency.
37
petitioner must make out a “special case” for the exercise of
the power to grant anticipatory bail. This, virtually, reduces
the salutary power conferred by Section 438 to a dead
letter. In its anxiety, otherwise just, to show that the power
conferred by Section 438 is not “unguided or uncanalised”,
the High Court has subjected that power to a restraint
which will have the effect of making the power utterly
unguided. To say that the applicant must make out a
“special case” for the exercise of the power to grant
anticipatory bail is really to say nothing. The applicant has
undoubtedly to make out a case for the grant of
anticipatory bail. But one cannot go further and say that he
must make out a “special case”. We do not see why the
provisions of Section 438 should be suspected as
containing something volatile or incendiary, which needs to
be handled with the greatest care and caution imaginable.
A wise exercise of judicial power inevitably takes care of
the evil consequences which are likely to flow out of its
intemperate use. Every kind of judicial discretion, whatever
may be the nature of the matter in regard to which it is
required to be exercised, has to be used with due care and
caution. In fact, an awareness of the context in which the
discretion is required to be exercised and of the reasonably
foreseeable consequences of its use, is the hallmark of a
prudent exercise of judicial discretion. One ought not to
make a bugbear of the power to grant anticipatory bail.
38
the wide power conferred by the legislature to a rigorous
code of selfimposed limitations.
39
xxx xxx xxx xxx xxx
40
37. Thirdly, the filing of a first information report is
not a condition precedent to the exercise of the power under
Section 438. The imminence of a likely arrest founded on a
reasonable belief can be shown to exist even if an FIR is
not yet filed.
41
possibly be had. The rationale of a direction under Section
438(1) is the belief of the applicant founded on reasonable
grounds that he may be arrested for a nonbailable offence.
It is unrealistic to expect the applicant to draw up his
application with the meticulousness of a pleading in a civil
case and such is not requirement of the section. But
specific events and facts must be disclosed by the
applicant in order to enable the court to judge of the
reasonableness of his belief, the existence of which is the
sine qua non of the exercise of power conferred by the
section.
41. Apart from the fact that the very language of the
statute compels this construction, there is an important
principle involved in the insistence that facts, on the basis
of which a direction under Section 438(1) is sought, must
be clear and specific, not vague and general. It is only by
the observance of that principle that a possible conflict
between the right of an individual to his liberty and the
right of the police to investigate into crimes reported to them
can be avoided. A blanket order of anticipatory bail is
bound to cause serious interference with both the right and
the duty of the police in the matter of investigation because,
regardless of what kind of offence is alleged to have been
committed by the applicant and when, an order of bail
which comprehends allegedly unlawful activity of any
description whatsoever, will prevent the police from
arresting the applicant even if he commits, say, a murder in
the presence of the public. Such an order can then become
a charter of lawlessness and a weapon to stifle prompt
investigation into offences which could not possibly be
predicated when the order was passed. Therefore, the
court which grants anticipatory bail must take care to
specify the offence or offences in respect of which alone the
order will be effective. The power should not be exercised
in a vacuum.
42
42. There was some discussion before us on certain
minor modalities regarding the passing of bail orders under
Section 438(1). Can an order of bail be passed under the
section without notice to the Public Prosecutor? It can be.
But notice should issue to the Public Prosecutor or the
Government Advocate forthwith and the question of bail
should be reexamined in the light of the respective
contentions of the parties. The ad interim order too must
conform to the requirements of the section and suitable
conditions should be imposed on the applicant even at that
stage. Should the operation of an order passed under
Section 438(1) be limited in point of time? Not necessarily.
The court may, if there are reasons for doing so, limit the
operation of the order to a short period until after the filing
of an FIR in respect of the matter covered by the order. The
applicant may in such cases be directed to obtain an order
of bail under Section 437 or 439 of the Code within a
reasonably short period after the filing of the FIR as
aforesaid. But this need not be followed as an invariable
rule. The normal rule should be not to limit the
operation of the order in relation to a period of time.
43
investigational rights of the police. The court has attempted
through those orders to strike a balance between the
individual's right to personal freedom and the
investigational rights of the police. The appellants who
were refused anticipatory bail by various courts have long
since been released by this Court under Section 438(1) of
the Code.”
number of years and the same has been followed by all the
Officer;
44
2. the applicant shall remain present before the
____________________;
required;
over;
45
8. the applicant shall maintain law and order;
order.
46
However, in the case of Siddharam Satlingappa Mhetre
law is laid down that the life of the order under Section 438,
three Judge Bench of this Court has observed and held that
47
case of Salauddin Abdulsamad Shaikh (supra) has been
the extent it takes the view that the life of the order under
48
light of the observations made by the Constitution Bench in
is also not a good law and is against and just contrary to the
Singh Sibbia (supra), the court may, if there are reasons for
observed and held that normal rule should be not to limit the
49
of the opinion that the conditions can be imposed by the
filed or at the stage when the FIR is filed and the investigation
50
SPECIAL LEAVE PETITION (CRIMINAL) NO (s). 7281-7282 OF 2017
VERSUS
JUDGMENT
S. RAVINDRA BHAT, J.
1. I have gone through the reasoning and conclusions of Justice M.R. Shah. I am
in agreement with his judgment. However, I am supplementing the conclusions
arrived at by Shah, J with this separate judgment since I am of the view that while
there is no disagreement on the essential reasoning, some aspects need to be
discussed, in addition.
2. The following questions have been referred to this larger bench of five judges:
(1) Whether the protection granted to a person under Section 438 Cr. PC should
be limited to a fixed period so as to enable the person to surrender before the
Trial Court and seek regular bail.
(2) Whether the life of an anticipatory bail should end at the time and stage
when the accused is summoned by the court.
Background
3. First, a background. The judgment of a five-judge bench of this court in Shri
Gurbaksh Singh Sibbia and others v. State of Punjab 1 considered the available views
on the provision for anticipatory bail (a concept not in existence till the enactment of
the Criminal Procedure Code, 1973- hereafter “Cr. PC” or “the Code”). Section 438
enables two classes of courts- a Court of Sessions and High Court, to issue directions
not to arrest a person, who apprehends arrest. Sibbia comprehensively dealt with the
history of the provision, the felt need which resulted in its enactment, the observations
and comments of the 41st Report of the Law Commission, which had suggested
introduction of such a provision, and the efficacy of prevailing practices. In brief,
1
1980 (2) SCC 565
51
Sibbia (which this court would analyze in greater detail later) held that the power (to
grant anticipatory bail) is cast in wide terms and should not be hedged in through
narrow judicial interpretation. At the same time, the larger bench (of five judges,
which decided Sibbia) ruled that in given individual cases, courts could impose
conditions which were appropriate, having regard to the circumstances.
4. This reference is necessitated, because in the present case, a bench of three
judges, on 15th May 2018, noticed conflicting views regarding interpretation of the
provision- Section 438. The court noticed, prima facie, that one line of judgments
(Salauddin Abdulsamad Shaikh v. State of Maharashtra2; K.L. Verma v. State & Anr3;
Sunita Devi v. State of Bihar & Anr4; Adri Dharan Das v. State of West Bengal5;
Nirmal Jeet Kaur v. State of M.P. & Anr 6; HDFC Bank Limited v. J.J. Mannan7; Satpal
Singh v. the State of Punjab8 and Naresh Kumar Yadav v Ravindra Kumar 9 held that
anticipatory bail orders should invariably contain conditions, either with reference to
time, or occurrence of an event, such as filing of a charge sheet, in criminal
proceedings, that would define its time of operation, after which the individual
concerned would have to secure regular bail, under Section 439 Cr. PC. The court also
noticed, that on the other hand, the observations in Sibbia did not suggest such an
inflexible approach. The second line of cases included Siddharam Satlingappa Mhetre
v. State of Maharashtra & Ors 10 and Bhadresh Bipinbhai Sheth v. State of Gujarat &
Anr11; these held that no conditions ought to be imposed by the court, whilst granting
anticipatory bail, which was to inure and protect the individual indefinitely- even
2
(1996 (1) SCC 667)
3
1998 (9) SCC 348
4
2005 (1) SCC 608
5
2005 (4) SCC 303
6
2004 (7) SCC 558
7
2010 (1) SCC 679
8
2018 SCC Online (SC 415
9
2008 (1) SCC 632
10
2011 (1) SCC 694
11
2016 (1) SCC 152
52
when charges were framed in a given criminal case, leading to trial- till the end of the
trial.
5. The court, in Sibbia, elaborately dealt with the background which led to the
introduction of the provision for anticipatory bail. It took note of the forty first report
of the Law Commission, on whose recommendations the provision was introduced.
Sibbia traced the history of the provision, from the stage of the recommendation, to
the draft bill and later its enactment, observing as follows:
“4. The CrPC, 1898 did not contain any specific provision corresponding
to the present Section 438. Under the old Code, there was a sharp
difference of opinion amongst the various High Courts on the question as to
whether courts had the inherent power to pass an order of bail, in
anticipation of arrest, the preponderance of view being that it did not have
such power. The need for extensive amendments to the CrPC was felt for a
long time and various suggestions were made in different quarters in order
to make the Code more effective and comprehensive. The Law Commission
of India, in its 41st Report dated September 24, 1969 pointed put the
necessity of introducing a provision in the Code enabling the High Court
and the Court of Session to grant "anticipate; bail". It observed in
paragraph 39.9 of its report (Volume I) :
39.9. The suggestion for directing the release of a person on bail prior to
his arrest (commonly known as "anticipatory bail") was carefully
considered by us. Though there is a conflict of judicial opinion about the
power of a Court to- grant anticipatory bail, the majority view is that there
is no such power under the existing provisions of the Code. The necessity
for granting anticipatory bail arises mainly because sometimes influential
persons try to' implicate their rivals in false cases for the purpose of
disgracing them or for other purposes by getting them detained in jail for
some days. In recent times, with the accentuation of political rivalry, this
tendency is showing signs of steady increase. Apart from false cases, where
there are reasonable grounds for holding that a person accused of an
offence is not likely to abscond, or otherwise misuse his liberty while on
bail, there seems no justification to require him first to submit to custody,
remain in prison for some days and then apply for bail.
In order to settle the details of this suggestion, the following draft of a, new
section is placed for consideration :
53
‘497A. (1) When any person has a reasonable apprehension that
he would be arrested on an accusation of having committed a
non-bailable offence, he may apply to the High Court or the
Court of Session for a direction under this section. That Court
may, in its discretion, direct that in the event of his arrest, he
shall be released on bail.
‘447. (1) When any person has reason to believe that he would be
arrested on an accusation of having committed a non-bailable
offence, he may apply to the High Court or the Court of Session
for a direction under this section; and that Court may, if it thinks
fit, direct that in the event of such arrest, he shall be released on
bail.
54
custody of such officer to give bail, he shall be released on bail;
and if a Magistrate taking cognizance of such offence decides that
a warrant should issue in the first instance against that person, he
shall issue a bailable warrant in conformity with the direction of
the Court under Sub-section (1).’
6. The Law Commission, in paragraph 31 of its 48th Report (1972), made the
following comments on the aforesaid Clause.
We are further of the view that in order to ensure that the provision is
not put to abuse at the instance of unscrupulous petitioners, the final order
should be made only after notice to the Public Prosecutor. The initial order
should only be an interim one. Further, the relevant section should make it
clear that the direction can be issued only for reasons to be recorded, and if
the court is satisfied that such a direction is necessary in the interests of
justice.
It will also be convenient to provide that notice of the interim order as well
as of the final orders will be given to the Superintendent of Police
forthwith.’
Clause 447 of the Draft Bill of 1970 was enacted with certain modifications
and became Section 438 of the CrPC, 1973 which we have extracted at the
outset of this judgment.”
6. The context of Sibbia was the correctness of a decision of the Full Bench of the
Punjab and Haryana High Court, which restrictively interpreted Section 438 and held
that the power under Section 438, “is extra-ordinary” and must be exercised sparingly
in exceptional cases only; that it does not empower the grant of anticipatory bail in a
blanket manner, in respect of offences not yet committed or with regard to accusations
not yet levelled; that it is not an unguided power, but subject to limitations in Section
437 – which are implicit and must be read into Section 438. The Full Bench also held
that the petitioner must “must make out a special case for the exercise of the power to
grant anticipatory bail”; and further that where a legitimate case for remand to police
custody is made or a reasonable claim to secure incriminating material from
55
information likely to be received from the offender “under Section 27 of the Evidence
Act can be made out, the power Under Section 438 should not be exercised.” The full
bench held that Section 438 cannot be availed in respect of offences punishable with
death or life imprisonment “unless the court at that very stage is satisfied that such a
charge appears to be false or groundless.” Likewise, in larger public interest and the
state’s interest Section 438 cannot be resorted to in “economic offences involving
blatant corruption at the higher rungs of the executive and political power” and that
“(8) Mere general allegation of mala fides in the petition are inadequate.
The court must be satisfied on materials before it that the allegations of
mala fides are substantial and the accusation appears to be false and
groundless.”
7. Sibbia discussed this issue and held that the narrow, restricted interpretation of
Section 438 was not warranted. The court disapproved the Punjab High Court Full
Bench decision; the five judge Bench ruled as follows:
56
power to grant anticipatory bail. It provides that the High Court or the
Court of Session, while issuing a direction for the grant of anticipatory bail,
“may include such conditions in such directions in the light of the facts of
the particular case, as it may think fit”, including the conditions which are
set out in clauses (i) to (iv) of sub-section (2). The proof of legislative intent
can best be found in the language which the legislature uses. Ambiguities
can undoubtedly be resolved by resort to extraneous aids but words, as
wide and explicit as have been used in Section 438, must be given their full
effect, especially when to refuse to do so will result in undue impairment of
the freedom of the individual and the presumption of innocence. It has to be
borne in mind that anticipatory bail is sought when there is a mere
apprehension of arrest on the accusation that the applicant has committed a
non- bailable offence. A person who has yet to lose his freedom by being
arrested asks for freedom in the event of arrest. That is the stage at which it
is imperative to protect his freedom, insofar as one may, and to give full
play to the presumption that he is innocent. In fact, the stage at which
anticipatory bail if generally sought brings about its striking dissimilarity
with the situation in which a person who is arrested for the commission of a
non-bailable offence asks for bail. In the latter situation, adequate data is
available to the court, or can be called for by it, in the light of which it can
grant or refuse relief and while granting it, modify it by the imposition of all
or any of the conditions mentioned in Section 437.
13. This is not to say that anticipatory bail, if granted, must be granted
without the imposition of any conditions. That will be plainly contrary to
the very terms of Section 438. Though sub-section (1) of that section says
that the court “may, if it thinks fit” issue the necessary direction for bail,
sub-section (2) confers on the court the power to include such conditions in
the direction as it may think fit in the light of the facts of the particular
case, including the conditions mentioned in clauses (i) to (iv) of that sub-
section. The controversy therefore is not whether the court has the power to
impose conditions while granting anticipatory bail. It clearly and expressly
has that power. The true question is whether by a process of construction,
the amplitude of judicial discretion which is given to the High Court and
the Court of Session, to impose such conditions as they may think fit while
granting anticipatory bail, should be cut down by reading into the statute
conditions which are not to be found therein, like those evolved by the High
Court or canvassed by the learned Additional Solicitor General. Our
answer, clearly and emphatically, is in the negative. The High Court and
the Court of Session to whom the application for anticipatory bail is made
ought to be left free in the exercise of their judicial discretion to grant bail
if they consider it fit so to do on the particular facts and circumstances of
the case and on such conditions as the case may warrant. Similarly, they
must be left free to refuse bail if the circumstances of the case so warrant,
on considerations similar to those mentioned in Section 437 or which are
generally considered to be relevant under Section 439 of the Code.
57
14. Generalizations on matters which rest on discretion and the attempt to
discover formulae of universal application when facts are bound to differ
from case to case frustrate the very purpose of conferring discretion. No
two cases are alike on facts and therefore, courts have to be allowed a little
free play in the joints if the conferment of discretionary power is to be
meaningful. There is no risk involved in entrusting a wide discretion to the
Court of Session and the High Court in granting anticipatory bail because,
firstly, these are higher courts manned by experienced persons, secondly,
their orders are not final but are open to appellate or revisional scrutiny
and above all because, discretion has always to be exercised by courts
judicially and not according to whim, caprice or fancy. On the other hand,
there is a risk in foreclosing categories of cases in which anticipatory bail
may be allowed because life throws up unforeseen possibilities and offers
new challenges. Judicial discretion has to be free enough to be able to take
these possibilities in its stride and to meet these challenges. While dealing
with the necessity for preserving judicial discretion unhampered by rules of
general application.
-------- -------------- ------
19. A great deal has been said by the High Court on the fifth proposition
framed by it, according to which, inter alia, the power under Section 438
should not be exercised if the investigating agency can make a reasonable
claim that it can secure incriminating material from information likely to be
received from the offender under Section 27 of the Evidence Act. According
to the High Court, it is the right and the duty of the police to investigate
into offences brought to their notice and therefore, courts should be careful
not to exercise their powers in a manner which is calculated to cause
interference therewith. It is true that the functions of the judiciary and the
police are in a sense complementary and not overlapping. And, as observed
by the Privy Council in King-Emperor v. Khwaja Nazir Ahmed [AIR 1945
PC 18 : (1943-44) 71 IA 203 : 46 Cri LJ 413] :
“Just as it is essential that every one accused of a crime should
have free access to a Court of justice so that he may be duly
acquitted if found not guilty of the offence with which he is
charged, so it is of the utmost importance that the judiciary
should not interfere with the police in matters which are within
their province and into which the law imposes on them the duty
of inquiry .... The functions of the judiciary and the police are
complementary, not overlapping, and the combination of the
individual liberty with a due observance of law and order is only
to be obtained by leaving each to exercise its own function,…”
But these remarks, may it be remembered, were made by the Privy Council
while rejecting the view of the Lahore High Court that it had inherent
jurisdiction under the old Section 561-A of the Criminal Procedure Code, to
58
quash all proceedings taken by the police in pursuance of two first
information reports made to them. An order quashing such proceedings
puts an end to the proceedings with the inevitable result that all
investigation into the accusation comes to a halt. Therefore, it was held that
the court cannot, in the exercise of its inherent powers, virtually direct that
the police shall not investigate into the charges contained in the FIR. We
are concerned here with a situation of an altogether different kind. An order
of anticipatory bail does not in any way, directly or indirectly, take away
from the police their right to investigate into charges made or to be made
against the person released on bail. In fact, two of the usual conditions
incorporated in a direction issued under Section 438(1) are those
recommended in sub-section (2)(i) and (ii) which require the applicant to
cooperate with the police and to assure that he shall not tamper with the
witnesses during and after the investigation. While granting relief under
Section 438(1), appropriate conditions can be imposed under Section
438(2) so as to ensure an uninterrupted investigation. One of such
conditions can even be that in the event of the police making out a case of a
likely discovery under Section 27 of the Evidence Act, the person released
on bail shall be liable to be taken in police custody for facilitating the
discovery. Besides, if and when the occasion arises, it may be possible for
the prosecution to claim the benefit of Section 27 of the Evidence Act in
regard to a discovery of facts made in pursuance of information supplied by
a person released on bail by invoking the principle stated by this Court in
State of U.P. v. Deoman Upadhyaya [AIR 1960 SC 1125 : (1961) 1 SCR 14,
26 : 1960 Cri LJ 1504] to the effect that when a person not in custody
approaches a police officer investigating an offence and offers to give
information leading to the discovery of a fact, having a bearing on the
charge which may be made against him, he may appropriately be deemed
so have surrendered himself to the police. The broad foundation of this rule
is stated to be that Section 46 of the Code of Criminal Procedure does not
contemplate any formality before a person can be said to be taken in
custody: submission to the custody by word or action by a person is
sufficient. For similar reasons, we are unable to agree that anticipatory bail
should be refused if a legitimate case for the remand of the offender to the
police custody under Section 167(2) of the Code is made out by the
investigating agency.
------------ --------- -------
21. The High Court says in its fourth proposition that in addition to the
limitations mentioned in Section 437, the petitioner must make out a
“special case” for the exercise of the power to grant anticipatory bail. This,
virtually, reduces the salutary power conferred by Section 438 to a dead
letter. In its anxiety, otherwise just, to show that the power conferred by
Section 438 is not “unguided or uncanalised”, the High Court has
subjected that power to a restraint which will have the effect of making the
power utterly unguided. To say that the applicant must make out a “special
59
case” for the exercise of the power to grant anticipatory bail is really to say
nothing. The applicant has undoubtedly to make out a case for the grant of
anticipatory bail. But one cannot go further and say that he must make out
a “special case”. We do not see why the provisions of Section 438 should
be suspected as containing something volatile or incendiary, which needs to
be handled with the greatest care and caution imaginable. A wise exercise
of judicial power inevitably takes care of the evil consequences which are
likely to flow out of its intemperate use. Every kind of judicial discretion,
whatever may be the nature of the matter in regard to which it is required to
be exercised, has to be used with due care and caution. In fact, an
awareness of the context in which the discretion is required to be exercised
and of the reasonably foreseeable consequences of its use, is the hallmark
of a prudent exercise of judicial discretion. One ought not to make a
bugbear of the power to grant anticipatory bail.
--------- ---------- ---------
22. By proposition No. 1 the High Court says that the power conferred by
Section 438 is “of an extraordinary character and must be exercised
sparingly in exceptional cases only”. It may perhaps be right to describe
the power as of an extraordinary character because ordinarily the bail is
applied for under Section 437 or Section 439. These sections deal with the
power to grant or refuse bail to a person who is in the custody of the police
and that is the ordinary situation in which bail is generally applied for. But
this does not justify the conclusion that the power must be exercised in
exceptional cases only, because it is of an extraordinary character. We will
really be saying once too often that all discretion has to be exercised with
care and circumspection, depending on circumstances justifying its
exercise. It is unnecessary to travel beyond it and subject the wide power
conferred by the legislature to a rigorous code of self-imposed limitations.
--------- ---------- ---------
26. We find a great deal of substance in Mr Tarkunde's submission that
since denial of bail amounts to deprivation of personal liberty, the court
should lean against the imposition of unnecessary restrictions on the scope
of Section 438, especially when no such restrictions have been imposed by
the legislature in the terms of that section. Section 438 is a procedural
provision which is concerned with the personal liberty of the individual,
who is entitled to the benefit of the presumption of innocence since he is
not, on the date of his application for anticipatory bail, convicted of the
offence in respect of which he seeks bail. An over-generous infusion of
constraints and conditions which are not to be found in Section 438 can
make its provisions constitutionally vulnerable since the right to personal
freedom cannot be made to depend on compliance with unreasonable
restrictions. The beneficent provision contained in Section 438 must be
saved, not jettisoned. No doubt can linger after the decision in Maneka
Gandhi [Maneka Gandhi v. Union of India, (1978) 1 SCC 248] , that in
60
order to meet the challenge of Article 21 of the Constitution, the procedure
established by law for depriving a person of his liberty must be fair, just
and reasonable. Section 438, in the form in which it is conceived by the
legislature, is open to no exception on the ground that it prescribes a
procedure which is unjust or unfair. We ought, at all costs, to avoid
throwing it open to a Constitutional challenge by reading words in it which
are not to be found therein.
--------- ---------- ---------
33. We would, therefore, prefer to leave the High Court and the Court of
Session to exercise their jurisdiction under Section 438 by a wise and
careful use of their discretion which, by their long training and experience,
they are ideally suited to do. The ends of justice will be better served by
trusting these courts to act objectively and in consonance with principles
governing the grant of bail which are recognised over the years, than by
divesting them of their discretion which the legislature has conferred upon
them, by laying down inflexible rules of general application. It is
customary, almost chronic, to take a statute as one finds it on the ground
that, after all, “the legislature in its wisdom” has thought it fit to use a
particular expression. A convention may usefully grow whereby the High
Court and the Court of Session may be trusted to exercise their
discretionary powers in their wisdom, especially when the discretion is
entrusted to their care by the legislature in its wisdom. If they err, they are
liable to be corrected.
34. This should be the end of the matter, but it is necessary to clarify a few
points which have given rise to certain misgivings.
35. Section 438(1) of the Code lays down a condition which has to be
satisfied before anticipatory bail can be granted. The applicant must show
that he has “reason to believe” that he may be arrested for a non-bailable
offence. The use of the expression “reason to believe” shows that the belief
that the applicant may be so arrested must be founded on reasonable
grounds. Mere ‘fear’ is not ‘belief’, for which reason it is not enough for
the applicant to show that he has some sort of a vague apprehension that
some one is going to make an accusation against him, in pursuance of
which he may be arrested. The grounds on which the belief of the applicant
is based that he may be arrested for a non-bailable offence, must be
capable of being examined by the court objectively, because it is then alone
that the court can determine whether the applicant has reason to believe
that he may be so arrested. Section 438(1), therefore, cannot be invoked on
the basis of vague and general allegations, as if to arm oneself in perpetuity
against a possible arrest. Otherwise, the number of applications for
anticipatory bail will be as large as, at any rate, the adult populace.
Anticipatory bail is a device to secure the individuals liberty; it is neither a
passport to the commission of crimes nor a shield against any and all kinds
of accusations, likely or unlikely
61
36. Secondly, if an application for anticipatory bail is made to the High
Court or the Court of Session it must apply its own mind to the question and
decide whether a case has been made out for granting such relief. It cannot
leave the question for the decision of the Magistrate concerned under
Section 437 of the Code, as and when an occasion arises. Such a course
will defeat the very object of Section 438.
37. Thirdly, the filing of a first information report is not a condition
precedent to the exercise of the power under Section 438. The imminence of
a likely arrest founded on a reasonable belief can be shown to exist even if
an FIR is not yet filed.
38. Fourthly, anticipatory bail can be granted even after an FIR is filed, so
long as the applicant has not been arrested.
39. Fifthly, the provisions of Section 438 cannot be invoked after the arrest
of the accused. The grant of “anticipatory bail” to an accused who is under
arrest involves a contradiction in terms, insofar as the offence or offences
for which he is arrested, are concerned. After arrest, the accused must seek
his remedy under Section 437 or Section 439 of the Code, if he wants to be
released on bail in respect of the offence or offences for which he is
arrested.
40. We have said that there is one proposition formulated by the High Court
with which we are inclined to agree. That is proposition (2). We agree that
a ‘blanket order’ of anticipatory bail should not generally be passed. This
flows from the very language of the section which, as discussed above,
requires the applicant to show that he has “reason to believe” that he may
be arrested. A belief can be said to be founded on reasonable grounds only
if there is something tangible to go by on the basis of which it can be said
that the applicant's apprehension that he may be arrested is genuine. That
is why, normally, a direction should not issue under Section 438(1) to the
effect that the applicant shall be released on bail “whenever arrested for
whichever offence whatsoever”. That is what is meant by a ‘blanket order’
of anticipatory bail, an order which serves as a blanket to cover or protect
any and every kind of allegedly unlawful activity, in fact any eventuality,
likely or unlikely regarding which, no concrete information can possibly be
had. The rationale of a direction under Section 438(1) is the belief of the
applicant founded on reasonable grounds that he may be arrested for a
non-bailable offence. It is unrealistic to expect the applicant to draw up his
application with the meticulousness of a pleading in a civil case and such is
not requirement of the section. But specific events and facts must be
disclosed by the applicant in order to enable the court to judge of the
reasonableness of his belief, the existence of which is the sine qua non of
the exercise of power conferred by the section.
41. Apart from the fact that the very language of the statute compels this
construction, there is an important principle involved in the insistence that
facts, on the basis of which a direction under Section 438(1) is sought, must
62
be clear and specific, not vague and general. It is only by the observance of
that principle that a possible conflict between the right of an individual to
his liberty and the right of the police to investigate into crimes reported to
them can be avoided. A blanket order of anticipatory bail is bound to cause
serious interference with both the right and the duty of the police in the
matter of investigation because, regardless of what kind of offence is
alleged to have been committed by the applicant and when, an order of bail
which comprehends allegedly unlawful activity of any description
whatsoever, will prevent the police from arresting the applicant even if he
commits, say, a murder in the presence of the public. Such an order can
then become a charter of lawlessness and a weapon to stifle prompt
investigation into offences which could not possibly be predicated when the
order was passed. Therefore, the court which grants anticipatory bail must
take care to specify the offence or offences in respect of which alone the
order will be effective. The power should not be exercised in a vacuum.
42. There was some discussion before us on certain minor modalities
regarding the passing of bail orders under Section 438(1). Can an order of
bail be passed under the section without notice to the Public Prosecutor? It
can be. But notice should issue to the Public Prosecutor or the Government
Advocate forthwith and the question of bail should be re-examined in the
light of the respective contentions of the parties. The ad interim order too
must conform to the requirements of the section and suitable conditions
should be imposed on the applicant even at that stage. Should the operation
of an order passed under Section 438(1) be limited in point of time? Not
necessarily. The court may, if there are reasons for doing so, limit the
operation of the order to a short period until after the filing of an FIR in
respect of the matter covered by the order. The applicant may in such cases
be directed to obtain an order of bail under Section 437 or 439 of the Code
within a reasonably short period after the filing of the FIR as aforesaid. But
this need not be followed as an invariable rule. The normal rule should be
not to limit the operation of the order in relation to a period of time.
43. During the last couple of years this Court, while dealing with appeals
against orders passed by various High Courts, has granted anticipatory
bail to many a person by imposing conditions set out in Section 438(2) (i),
(ii) and (iii). The court has, in addition, directed in most of those cases that
(a) the applicant should surrender himself to the police for a brief period if
a discovery is to be made under Section 27 of the Evidence Act or that he
should be deemed to have surrendered himself if such a discovery is to be
made. In certain exceptional cases, the court has, in view of the material
placed before it, directed that the order of anticipatory bail will remain in
operation only for a week or so until after the filing of the FIR in respect of
matters covered by the order. These orders, on the whole, have worked
satisfactorily, causing the least inconvenience to the individuals concerned
and least interference with the investigational rights of the police. The court
has attempted through those orders to strike a balance between the
63
individual's right to personal freedom and the investigational rights of the
police. The appellants who were refused anticipatory bail by various courts
have long since been released by this Court under Section 438(1) of the
Code.”
8. The judgment in Sibbia was understood and no apprehensions were reflected
about the duration of anticipatory bail orders, in the next decade and a half. While so,
in Salauddin Abdulsamad Shaikh V. State of Maharashtra, (1996) 1 SCC 667 for the
first time, a discordant note appears to have been struck. It was stated in Salauddin
(supra) that grant of anticipatory bail should not mean that the regular court, which is
to try the offender, would be “bypassed”. This court approved the approach of the
High Court, which had fixed the outer date for the continuance of the bail and further
directed that the petitioner, upon expiry, should move the regular court of bail.
Saluddin further held that the procedure followed by the High Court was correct,
because:
“it must be realised that when the Court of Session or the High Court is
granting anticipatory bail, it is granted at a stage when the investigation is
incomplete and, therefore, it is not informed about the nature of evidence
against the alleged offender. It is therefore, necessary that such anticipatory
bail orders should be of a limited duration only and ordinarily on the expiry
of that duration or extended duration the court granting anticipatory bail
should leave it to the regular court to deal with the matter on an
appreciation of evidence placed before it after the investigation has made
progress or the charge-sheet is submitted”.”
9. The approach and reasoning in Salauddin was applied and reiterated by this
Court, in K.L. Verma v. State12. That decision (K.L. Verma) further explained the
scope of the provision that till the regular bail application of an accused, enjoying
protection under Section 438 is pending before the regular court he need not surrender
and his protection will continue till the disposal of the regular bail application under
Section 437 or Section 439, and that she or he has to move an application (for regular
bail) after expiry of a certain duration as directed by the Court or if the Charge-sheet is
submitted because regular courts cannot be bypassed. It was held, in K.L. Verma that:
12
1998 (9) SCC 348
64
“3....This Court further observed that anticipatory bail is granted in
anticipation of arrest in non- bailable cases, but that does not mean that the
regular court, which is to try the offender, is sought to be bypassed...By
this, what the Court desired to convey was that an order of anticipatory bail
does not enure till the end of trial but it must be of limited duration as the
regular court cannot be bypassed. The limited duration must be determined
having regard to the facts of the case and the need to give the accused
sufficient time to move the regular court for bail and to give the regular
court sufficient time to determine the bail application. In other words, till
the bail application is disposed of one way or the other the court may allow
the accused to remain on anticipatory bail. ….. This decision was not
intended to convey that as soon as the accused persons are produced before
the regular court the anticipatory bail ends even if the court is yet to decide
the question of bail on merit s. The decision in Salauddin case [(1996) 1
SCC 667] has to be so understood.”
10. Again, Sunita Devi; Nirmal Jeet Kaur and Adri Dharan Das (supra) are three
later decisions where this court applied the ratio in Salauddin and echoed the concern
that the “ protective umbrella” of Section 438 cannot be extended beyond the time
period indicated in the previous case (Salauddin) or till the applicant avails remedies
up to high courts and that doing so would mean that the regular court would be
bypassed. The court reiterated that Section 439 would be rendered a dead letter if the
applicant is allowed the benefit of an order under Section 438 till, he avails the
remedy of regular bail up to higher courts. In HDFC Bank Ltd. v. J.J. Mannan,13this
court followed and applied the reasoning in Salauddin, to the extent that certain
limitations must be imposed, while granting anticipatory bail. A new axiom too was
added, that if the police “made out” a case against the applicant and his name was
included as an “accused in the charge-sheet, the accused has to surrender to the
custody of the court and pray for regular bail. On the strength of an order granting
anticipatory bail, an accused against whom charge has been framed, cannot avoid
appearing before the trial court..” The court observed that:
“19. The object of Section 438 CrPC has been repeatedly explained by this
Court and the High Courts to mean that a person should not be harassed or
humiliated in order to satisfy the grudge or personal vendetta of the
complainant. But at the same time the provisions of Section 438 Cr PC
cannot also be invoked to exempt the accused from surrendering to the
13
2010 (1) SCC 679
65
court after the investigation is complete and if charge-sheet is filed against
him. Such an interpretation would amount to violence to the provisions of
Section 438 Cr PC, since even though a charge-sheet may be filed against
an accused and charge is framed against him, he may still not appear
before the court at all even during the trial.
20. Section 438 CrPC contemplates arrest at the stage of investigation and
provides a mechanism for an accused to be released on bail should he be
arrested during the period of investigation. Once the investigation makes
out a case against him and he is included as an accused in the charge-
sheet, the accused has to surrender to the custody of the court and pray for
regular bail. On the strength of an order granting anticipatory bail, an
accused against whom charge has been framed, cannot avoid appearing
before the trial court.”
11. In the light of these decisions, which narrowed the scope and jurisdiction under
Section 438, the judgment in Mhetre noticed that Sibbia was by a Bench of five
judges, which indicated that imposition of restrictions for granting anticipatory bail
was not always necessary. The court, in Mhetre observed as follows:
“... Those orders are contrary to the law laid down by the judgment of the
Constitution Bench in Sibbia's case (supra). According to the report of the
National Police Commission, the power of arrest is grossly abused and
clearly violates the personal liberty of the people, as enshrined under
Article 21 of the Constitution, then the courts need to take serious notice of
it. When conviction rate is admittedly less than 10%, then the police should
be slow in arresting the accused. The courts considering the bail
application should try to maintain fine balance between the societal interest
vis-à-vis personal liberty while adhering to the fundamental principle of
criminal jurisprudence that the accused that the accused is presumed to be
innocent till he is found guilty by the competent court.
94. The complaint filed against the accused needs to be thoroughly
examined including the aspect whether the complainant has filed false or
frivolous complaint on earlier occasion. The court should also examine the
fact whether there is any family dispute between the accused and the
complainant and the complainant must be clearly told that if the complaint
is found to be false or frivolous, then strict action will be taken against him
in accordance with law. If the connivance between the complainant and the
investigating officer is established then action be taken against the
investigating officer in accordance with law.
95. The gravity of charge and exact role of the accused must be properly
comprehended. Before arrest, the arresting officer must record the valid
reasons which have led to the arrest of the accused in the case diary. In
exceptional cases the reasons could be recorded immediately after the
66
arrest, so that while dealing with the bail application, the remarks and
observations of the arresting officer can also be properly evaluated by the
court.
96. It is imperative for the courts to carefully and with meticulous precision
evaluate the facts of the case. The discretion must be exercised on the basis
of the available material and the facts of the particular case. In cases where
the court is of the considered view that the accused has joined investigation
and he is fully cooperating with the investigating agency and is not likely to
abscond, in that event, custodial interrogation should be avoided.
97. A great ignominy, humiliation and disgrace is attached to the arrest.
Arrest leads to many serious consequences not only for the accused but for
the entire family and at times for the entire community. Most people do not
make any distinction between arrest at a pre-conviction stage or post-
conviction stage. Whether the powers under section 438 Cr.P.C. are subject
to limitation of section 437 Cr.P.C.?
98. The question which arises for consideration is whether the powers
under section 438 Cr.P.C. are unguided or uncanalised or are subject to all
the limitations of section 437 Cr.P.C.? The Constitution Bench in Sibbia's
case (supra) has clearly observed that there is no justification for reading
into section 438 Cr.P.C. and the limitations mentioned in section 437
Cr.P.C. The Court further observed that the plentitude of the section must
be given its full play. The Constitution Bench has also observed that the
High Court is not right in observing that the accused must make out a
“special case” for the exercise of the power to grant anticipatory bail. This
virtually, reduces the salutary power conferred by section 438 Cr.P.C. to a
dead letter. The Court observed that “We do not see why the provisions of
Section 438 Cr.P.C. should be suspected as containing something volatile or
incendiary, which needs to be handled with the greatest care and caution
imaginable.”
99. As aptly observed in Sibbia's case (supra) that a wise exercise of
judicial power inevitably takes care of the evil consequences which are
likely to flow out of its intemperate use. Every kind of judicial discretion,
whatever may be the nature of the matter in regard to which it is required to
be exercised, has to be used with due care and caution. In fact, an
awareness of the context in which the discretion is required to be exercised
and of the reasonably foreseeable consequences of its use, is the hallmark
of a prudent exercise of judicial discretion. One ought not to make a
bugbear of the power to grant anticipatory bail.
100. The Constitution Bench in the same judgment also observed that a
person seeking anticipatory bail is still a free man entitled to the
presumption of innocence. He is willing to submit to restraints and
conditions on his freedom, by the acceptance of conditions which the court
may deem fit to impose, in consideration of the assurance that if arrested,
he shall enlarged on bail.
67
101. The proper course of action ought to be that after evaluating the
averments and accusation available on the record if the court is inclined to
grant anticipatory bail then an interim bail be granted and notice be issued
to the public prosecutor. After hearing the public prosecutor the court may
either reject the bail application or confirm the initial order of
granting bail. The court would certainly be entitled to impose conditions
for the grant of bail. The public prosecutor or complainant would be at
liberty to move the same court for cancellation or modifying the conditions
of bail any time if liberty granted by the court is misused. The bail granted
by the court should ordinarily be continued till the trial of the case.
102. The order granting anticipatory bail for a limited duration and
thereafter directing the accused to surrender and apply before a
regular bail is contrary to the legislative intention and the judgment of the
Constitution Bench in Sibbia's case (supra).
103. It is a settled legal position that the court which grants the bail also
has the power to cancel it. The discretion of grant or cancellation
of bail can be exercised either at the instance of the accused, the public
prosecutor or the complainant on finding new material or circumstances at
any point of time.
104. The intention of the legislature is quite clear that the power of grant or
refusal of bail is entirely discretionary. The Constitution Bench in Sibbia's
case (supra) has clearly stated that grant and refusal is discretionary and it
should depend on the facts and circumstances of each case. The
Constitution Bench in the said case has aptly observed that we must respect
the wisdom of the Legislature entrusting this power to the superior courts
namely, the High Court and the Court of Session. The Constitution Bench
observed as under:
“We would, therefore, prefer to leave the High Court and the
Court of Session to exercise their jurisdiction under Section 438
by a wise and careful use of their discretion which, by their long
training and experience, they are ideally suited to do. The ends of
justice will be better served by trusting these courts to act
objectively and in consonance with principles governing the grant
of bail which are recognized over the years, than by divesting
them of their discretion which the legislature has conferred upon
them, by laying down inflexible rules of general application. It is
customary, almost chronic, to take a statute as one finds it on the
grounds that, after all “the legislature in, its wisdom” has thought
it fit to use a particular expression. A convention may usefully
grow whereby the High Court and the Court of Session may be
trusted to exercise their discretionary powers in their wisdom,
especially when the discretion is entrusted to their care by the
legislature in its wisdom. If they err, they are liable to be
corrected.”
68
GRANT OF BAIL FOR LIMITED PERIOD IS CONTRARY TO THE
LEGISLATIVE INTENTION AND LAW DECLARED BY THE
CONSTITUTION BENCH:
105. The court which grants the bail has the right to cancel
the bail according to the provisions of the General Clauses Act but
ordinarily after hearing the public prosecutor when the bail order is
confirmed then the benefit of the grant of the bail should continue till the
end of the trial of that case.
106. The judgment in Salauddin Abdulsamad Shaikh (supra) is contrary to
legislative intent and the spirit of the very provisions of the anticipatory
bail itself and has resulted in an artificial and unreasonable restriction on
the scope of enactment contrary to the legislative intention.
107. The restriction on the provision of anticipatory bail under section 438
Cr.P.C. limits the personal liberty of the accused granted under Article 21
of the constitution. The added observation is nowhere found in the
enactment and bringing in restrictions which are not found in the enactment
is again an unreasonable restriction. It would not stand the test of fairness
and reasonableness which is implicit in Article 21 of the Constitution after
the decision in Maneka Gandhi's case (supra) in which the court observed
that in order to meet the challenge of Article 21 of the Constitution the
procedure established by law for depriving a person of his liberty must be
fair, just and reasonable.
108. Section 438 Cr.P.C. does not mention anything about the duration to
which a direction for release on bail in the event of arrest can be granted.
The order granting anticipatory bail is a direction specifically to release the
accused on bail in the event of his arrest. Once such a direction
of anticipatory bail is executed by the accused and he is released on bail,
the concerned court would be fully justified in imposing conditions
including direction of joining investigation.
109. The court does not use the expression ‘anticipatory bail’ but it
provides for issuance of direction for the release on bail by the High Court
or the Court of Sessions in the event of arrest. According to the aforesaid
judgment of Salauddin's case, the accused has to surrender before the trial
court and only thereafter he/she can make prayer for grant of bail by the
trial court. The trial court would release the accused only after he has
surrendered.
110. In pursuance to the order of the Court of Sessions or the High Court,
once the accused is released on bail by the trial court, then it would be
unreasonable to compel the accused to surrender before the trial court and
again apply for regular bail.
111. The court must bear in mind that at times the applicant would
approach the court for grant of anticipatory bail on mere apprehension of
being arrested on accusation of having committed a non-bailable offence.
69
In fact, the investigating or concerned agency may not otherwise arrest that
applicant who has applied for anticipatory bail but just because he makes
an application before the court and gets the relief from the court for a
limited period and thereafter he has to surrender before the trial court and
only thereafter his bail application can be considered and life
of anticipatory bail comes to an end. This may lead to disastrous and
unfortunate consequences. The applicant who may not have otherwise lost
his liberty loses it because he chose to file application of anticipatory bail
on mere apprehension of being arrested on accusation of having committed
a non-bailable offence. No arrest should be made because it is lawful for
the police officer to do so. The existence of power to arrest is one thing and
the justification for the exercise of it is quite another. The police officer
must be able to justify the arrest apart from his power to do so. This finding
of the said judgment (supra) is contrary to the legislative intention and law
which has been declared by a Constitution Bench of this court in Sibbia's
case (supra).
112. The validity of the restrictions imposed by the Apex Court, namely, that
the accused released on anticipatory bail must submit himself to custody
and only thereafter can apply for regular bail . This is contrary to the basic
intention and spirit of section 438 Cr.P.C. It is also contrary to Article 21 of
the Constitution. The test of fairness and reasonableness is implicit under
Article 21 of the Constitution of India. Directing the accused to surrender
to custody after the limited period amounts to deprivation of his personal
liberty.
113. It is a settled legal position crystallized by the Constitution Bench of
this court in Sibbia's case (supra) that the courts should not impose
restrictions on the ambit and scope of section 438 Cr.P.C. which are not
envisaged by the Legislature. The court cannot rewrite the provision of the
statute in the garb of interpreting it.
114. It is unreasonable to lay down strict, inflexible and rigid rules for
exercise of such discretion by limiting the period of which an order under
this section could be granted. We deem it appropriate to reproduce some
observations of the judgment of the Constitution Bench of this court in
the Sibbia's case (supra)…”
********************* *****************
121. No inflexible guidelines or straitjacket formula can be provided for
grant or refusal of anticipatory bail. We are clearly of the view that no
attempt should be made to provide rigid and inflexible guidelines in this
respect because all circumstances and situations of future cannot be clearly
visualized for the grant or refusal of anticipatory bail . In consonance with
the legislative intention the grant or refusal of anticipatory bail should
necessarily depend on facts and circumstances of each case. As aptly
observed in the Constitution Bench decision in Sibbia's case (supra) that
the High Court or the Court of Sessions to exercise their jurisdiction under
70
section 438 Cr.P.C. by a wise and careful use of their discretion which by
their long training and experience they are ideally suited to do. In any
event, this is the legislative mandate which we are bound to respect and
honour.
122. The following factors and parameters can be taken into consideration
while dealing with the anticipatory bail:
i. The nature and gravity of the accusation and the exact role of the accused
must be properly comprehended before arrest is made;
ii. The antecedents of the applicant including the fact as to whether the
accused has previously undergone imprisonment on conviction by a Court
in respect of any cognizable offence;
iii. The possibility of the applicant to flee from justice;
iv. The possibility of the accused's likelihood to repeat similar or the other
offences.
v. Where the accusations have been made only with the object of injuring or
humiliating the applicant by arresting him or her.
vi. Impact of grant of anticipatory bail particularly in cases of large
magnitude affecting a very large number of people.
vii. The courts must evaluate the entire available material against the
accused very carefully. The court must also clearly comprehend the exact
role of the accused in the case. The cases in which accused is implicated
with the help of sections 34 and 149 of the Indian Penal Code, the court
should consider with even greater care and caution because over
implication in the cases is a matter of common knowledge and concern;
viii. While considering the prayer for grant of anticipatory bail, a balance
has to be struck between two factors namely, no prejudice should be caused
to the free, fair and full investigation and there should be prevention of
harassment, humiliation and unjustified detention of the accused;
ix. The court to consider reasonable apprehension of tampering of the
witness or apprehension of threat to the complainant;
x. Frivolity in prosecution should always be considered and it is only the
element of genuineness that shall have to be considered in the matter of
grant of bail and in the event of there being some doubt as to the
genuineness of the prosecution, in the normal course of events, the accused
is entitled to an order of bail.
123. The arrest should be the last option and it should be restricted to those
exceptional cases where arresting the accused is imperative in the facts and
circumstances of that case.
124. The court must carefully examine the entire available record and
particularly the allegations which have been directly attributed to the
71
accused and these allegations are corroborated by other material and
circumstances on record.
125. These are some of the factors which should be taken into consideration
while deciding the anticipatory bail applications. These factors are by no
means exhaustive but they are only illustrative in nature because it is
difficult to clearly visualize all situations and circumstances in which a
person may pray for anticipatory bail. If a wise discretion is exercised by
the concerned judge, after consideration of entire material on record then
most of the grievances in favour of grant of or refusal of bail will be taken
care of. The legislature in its wisdom has entrusted the power to exercise
this jurisdiction only to the judges of the superior courts. In consonance
with the legislative intention we should accept the fact that the discretion
would be properly exercised. In any event, the option of approaching the
superior court against the court of Sessions or the High Court is always
available.”
12. These seemingly incongruent strands of reasoning- stemming from the two
distinct line of precedents, spawning divergent approaches to the scope of jurisdiction
under Section 438 have impelled the reference to this larger Bench.
The provisions
13. For completeness, it is essential to set out the relevant provisions: to wit,
Sections 437, 438 and 439 of the Code of Criminal Procedure, 1974 (hereafter
variously “Cr.PC” and “the Code”). They are reproduced in the footnote below. 14
Contentions of parties
14
“437. When bail may be taken in case of non- bailable offence.
(1) When any person accused of, or suspected of, the commission of
any non- bailable offence is arrested or detained without warrant by an
officer in charge of a police station or appears or is brought before a Court
other than the High Court or Court of Session, he may be released on bail,
but-
(i) such person shall not be so released if there appear reasonable
grounds for believing that he has been guilty of an offence punishable with
death or imprisonment for life;
(ii) such person shall not be so released if such offence is a cognizable
offence and he had been previously convicted of an offence punishable with
death, imprisonment for life or imprisonment for seven years or more, or he
had been previously convicted on two or more occasions of a cognizable
offence punishable with imprisonment for three years or more but not less than
seven years.
72
14. Mr. Abhay Kumar, for the petitioner, argued that it is not correct to find any
limitation on the life span of an order of anticipatory bail in terms of its duration by
reading the para 42 of Sibbia Case; and that the life of anticipatory bail is coterminous
with the life of criminal case, whether the criminal case gets over either at the stage of
trial or before it, in a given case. He further urged that personal liberty is a cherished
freedom, even more important than the other freedoms guaranteed under the
Constitution. The Constitution framers therefore enacted safeguards in Article 22 in
Provided that the Court may direct that a person referred to in clause (i)
or clause (ii) be released on bail if such person is under the age of sixteen
years or is a woman or is sick or infirm.
Provided further that the Court may also direct that a person referred to
in clause (ii) be released on bail if it is satisfied that it is just and proper so to
do for any other special reason.
Provided also that the mere fact that an accused person may be required
for being identified by witnesses during investigation shall not be sufficient
ground for refusing to grant bail if he is otherwise entitled to be released on
bail and gives an undertaking that he shall comply with such directions as may
be given by the Court.
Provided also that no person shall if the offence alleged to have been
committed by him is punishable with death imprisonment for life or
imprisonment for seven years or more be released on bail by the Court under
this sub-section without giving an opportunity of hearing to the public
prosecutor.
(2) If it appears to such officer or Court at any stage of the
investigation, inquiry or trial, as the case may be, that there are not reasonable
grounds for believing that the accused has committed a non- bailable offence,
but that there are sufficient grounds for further inquiry into his guilt the
accused shall, subject to the provisions of section 446A and pending such
inquiry, be released on bail or at the discretion of such officer or Court, on the
execution by him of a bond without sureties for his appearance as hereinafter
provided.
(3) When a person accused or suspected of the commission of an
offence punishable with imprisonment which may extend to seven years or
more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the
Indian Penal Code (45 of 1860) or abetment of, or conspiracy or attempt to
commit, any such offence, is released on bail under sub-section (1), the Court
shall impose the conditions-
(a) that such person shall attend in accordance with the conditions of
the bond executed under this Chapter, or
73
the Constitution to limit the power of the State to detain a person without trial, which
may otherwise pass the test of Article 21, by humanizing the harsh authority over
individual liberty.
(b) that such person shall not commit an offence similar to the offence
of which he is accused or suspected of the commission of which he is
suspected, and
(c) that such person shall not directly or indirectly make any
inducement, threat or promise to any person acquainted with the facts of the
case so as to dissuade him for disclosing such facts to the Court or to any
police officer or tamper with the evidence,
and may also impose in the interest of justice such other conditions as it
considers necessary.
(4) An officer or a Court releasing any person on bail under sub-
section (1) or sub- section (2), shall record in writing his or its reasons or
special reasons for so doing.
(5) Any Court which has released a person on bail under sub- section
(1) or sub- section (2), may, if it considers it necessary so to do, direct that
such person be arrested and commit him to custody.
(6) If, in any case triable by a Magistrate, the trial of a person accused
of any non- bailable offence is not concluded within a period of sixty days from
the first date fixed for taking evidence in the case, such person shall, if he is in
custody during the whole of the said period, be released on bail to the
satisfaction of the Magistrate, unless for reasons to be recorded in writing, the
Magistrate otherwise directs.
(7) If, at any time after the conclusion of the trial of a person accused
of a non- bailable offence and before judgment is delivered, the Court is of
opinion that there are reasonable grounds for believing that the accused is not
guilty of any such offence, it shall release the accused, if he is in custody, on
the execution by him of a bond without sureties for his appearance to hear
judgment delivered.
438. Direction for grant of bail to person apprehending arrest.
(1) When any person has reason to believe that he may be arrested on an
accusation of having committed a non- bailable offence, he may apply to the High
Court or the Court of Session for a direction under this section; and that Court
may, if it thinks fit, direct that in the event of such arrest, he shall be released on
74
apart from others, in terms of grant of Bail to an accused in a criminal case. Chapter
XXXIII of the Code contains elaborate provisions relating to grant of bail. Bail is
granted to one who is arrested in a non-bailable offence or has been convicted of an
offence after trail. The effect of granting bail is to release the accused from internment
though the court would still retain constructive control over him through the sureties.
In case the accused is released on his own bond such constructive control could still
bail.*
16. The literal meaning of the word “bail” is surety. Counsel referred to the
meaning of “bail” in Halsbury’s Laws of England(Halsbury’s Laws of England, 4 th
Edn., Vol. 11, para 166), and submitted that it is aimed at placing the accused in the
15
Halsbury’s Laws of England (4th Edn., Vol. 11, para 166): “The effect of granting
bail is not to set the defendant (accused) at liberty but to release him from the custody
77
(Order to release on probation of good conduct or after admonition, a post-conviction
stage and Section389 (Suspension of sentence pending the appeal and release of
appellant on bail - postconviction and during pendency of Appeal). Section 438
manifests the principle of liberty.
17. Counsel highlighted that anticipatory bail is panacea for apprehension of arrest
in false case. Anticipatory bail protects from trauma and stigma of arrest of an
innocent (in most of the cases, full of various responsibilities and even being sole
bread earner of her/his family members), consequently prohibiting in creating reverse
victims by way of dependent upon the said accused. An elementary postulate of
criminal jurisprudence is the presumption of innocence, meaning thereby that a person
is believed to be innocent until found guilty. However, there are instances in our
criminal law where a reverse onus is placed on an accused with regard to some
specific offences but that is another matter and does not detract from the fundamental
postulate in respect of other offences. Yet another important facet of our criminal
jurisprudence is that the grant of bail is the general rule and putting a person in jail or
in a prison or in a correction home (whichever expression one may wish to use) is an
exception. Counsel relied on Dataram Singh v. State of U.P (2018) 3 SCC 22).
18. Counsel submitted that the provision in Section 438 read with Section 439 (2)
of the Code, contain clear guidelines and limitations. It was highlighted that the
discretion to impose (or not impose) condition is left to the concerned court and the
Code therefore cannot be interpreted to cut short its duration either till filing of
charge-sheet or unearthing of alleged fresh materials during investigation. It is
submitted that the power to curtail or to diminish, the duration of anticipatory bail, in
a suitable case, is governed by Section 439(2) of the Code in the same manner which
is enumerated in Section 437 of the Code (which is applicable to a Court other than
High Court or Court of Session). The counsel urged that there have been instances of
courts passing orders, including in some of the orders/judgments of this Court,
of law and to entrust him to the custody of his sureties who are bound to produce him
to appear at his trial at a specified time and place. The sureties may seize their
principal at any time and may discharge themselves by handing him over to the
custody of law and he will then be imprisoned.”
78
wherein denial of anticipatory bail is followed by direction to accused to surrender
and seek regular bail. This, counsel highlighted, is not based on any sound rationale.
19. Mr. C.S.N. Mohan Rao, learned counsel, emphasized that arrest of an accused,
is governed, by Sections 41-46 of the Code. The arrest of an accused, is required, if at
all, broadly for unearthing the truth of the case during investigation (a choice of the
investigating agency) and to secure the presence of accused during trial, for free and
fair trial including exclusion of any possibility of influencing of witnesses/and
tampering of evidence or aborting a trial by absconding (prerogative of the trail court)
or any other means or method known or unknown. Therefore, whether an accused has
to be arrested and kept in custody and remains in that state of physical confinement,
ideally is to be the domain of the prosecuting agency and /or of trying Court. There are
sufficient methods enlisted in the Code to ensure this end by both i.e. the prosecuting
agency including complainant/victim and also to the concerned court- by filing of
cancellation of bail by former and issuance of bailable and non-bailable warrant by the
latter. Counsel argued that in any case, rejection of an application for anticipatory bail,
at first instance, does not automatically give rise to evil consequences for an accused
to surrender and seek regular bail. The filing of subsequent anticipatory bail and grant
of the relief by a competent court of law in a suitable case, upon showing proper and
inspiring subsequent chance in circumstances in favour of accused, is sufficient
indicative factor of the proposition that a rejection of anticipatory will generate no
automatic warrant for an accused to surrender and seek regular bail. If subsequent and
material change or circumstance can be a plausible reason for cancellation of bail, is
should definitely, considering the valuable right of an accused, equally there can be a
reason for applying fresh application for anticipatory bail in a suitable case. Having
regard to all these factors, counsel urged this court to endorse the reasoning in Mhetre
which according to him is conformity with the larger bench ruling in Sibbia, and
accommodates the flexibilities in the Code.
20. Mr. Rao relied on the observations in Gurcharan Singh v State (Delhi Admn)16
to say that cancellation of anticipatory bail, when warranted by the facts, is the answer
16
1978 (1) SCC 118. The observations are as follows:
79
where the fact situation requires the applicant (who is beneficiary of an order under
Section 438 CrPC) rather than limiting the order of anticipatory bail. He also pointed
out observations in Gurcharan Singh (supra) to say that statutory bail (i.e. where
charge sheet is not filed in a case within the prescribed period of 60 or 90 days,
leading to release by operation of Section 167 (2) of the Code 17) amounts to deemed
bail under Chapter XXXIII of the Code:
“under Section 439 (2) of the new Code a High Court may commit a person
released on bail under Chapter XXXIII by any Court including the Court of Session to
custody, if it thinks appropriate to do so. It must, however, be made clear that a Court
of Session cannot cancel a bail which has already been granted by the High Court
unless new circumstances arise during the progress of the trial after an accused
person has been admitted to bail by the High Court. If, however, a Court of Session
had admitted an accused person to bail, the State has two options. it may move the
Sessions Judge if certain new circumstances have arisen which were not earlier
known to the State and necessarily, therefore, to that Court. The State may as well
approach the High Court being the superior Court under Section 439 (2) to commit
the accused to custody. When, however, the State is aggrieved by the order of the
Sessions Judge granting bail and there are no new circumstances that leave copied up
except those already existed, it is futile for the State to move the Sessions Judge again
and it is competent in law to move the High Court for cancellation of the bail. This
position follows from the subordinate position of the Court of Session vis-a- vis the
High Court.”
17
Section 167 (2) CrPC reads as follows:
“(2) The Magistrate to whom an accused person is forwarded under this
section may, whether he has or has no jurisdiction to try the case, from time to time,
authorise the detention of the accused in such custody as such Magistrate thinks fit,
for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try
the case or commit it for trial, and considers further detention unnecessary, he may
order the accused to be forwarded to a Magistrate having such jurisdiction: Provided
that-
(a) the Magistrate may authorise the detention of the accused person,
otherwise than in the custody of the police, beyond the period of fifteen days; if he is
satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise
the detention of the accused person in custody under this paragraph for a total period
exceeding,-
(i) ninety days, where the investigation relates to an offence punishable
with death, imprisonment for life or imprisonment for a term of not less than
80
“Under the first proviso to S.167 (2) no Magistrate shall authorise the
detention of an accused in custody under that section for a total period
exceeding 60 days on the expiry of which the accused shall be released
on bail if he is prepared to furnish the same- This type of release under
the proviso shall be deemed to be a release under the provisions of
Chapter XXXIII relating to bail.”
21. It was submitted that the decisions in Aslam Babalal Desai v State of
Maharastra18 is an authority for the proposition that there can be no cancellation of
the bail granted, or deemed to be granted, under Section 167 (2) merely upon the later
filing of a charge sheet. The court had observed as follows, in Aslam Babalal Desai
(supra) in this context:
“It will thus be seen that once an accused person has been released on
bail by the thrust of the proviso to Section 167 (2), the mere fact that
subsequent to his release a challan has been filed is not sufficient to
cancel his bail. In such a situation his bail can be cancelled only if
considerations germane to cancellation of bail under Section 437 (5) or
for that matter Section 439 (2) exist. That is because the release of a
person under Section Section 167 (2) is equated to his release under
Chapter XXXIII of the Code.”
It was submitted that therefore, the mere filing of a charge sheet per se cannot be an
event which compels an accused who has the benefit of anticipatory bail, to surrender
and seek regular bail. The grounds for cancellation of bail are to be made out,
separately.
22. Mr. K.V. Vishwanathan, learned Senior Counsel emphasised that the exercise of
power under Section 438 is identical to the exercise of power under Sections 437 and
439 Cr. P.C. Consequently, pre arrest bail granted in anticipation of arrest- under
Section 438, in his submission, operates like any other order of bail i.e. till an order of
conviction or affirmative direction is passed to arrest the individuals, is made under
ten years;
(ii) sixty days, where the investigation relates to any other offence, and,
on the expiry of the said period of ninety days, or sixty days, as the case may
be, the accused person shall be released on bail if he is prepared to and does
furnish bail, and every person released on bail under this sub- section shall
be deemed to be so released under the provisions of Chapter XXXIII for the
purposes of that Chapter;..”
18
1992 (4) SCC 272
81
Section 439 (2). Mr. Vishwanathan highlighted that Section 438 has an intrinsic link
with Article 21 in as much as it seeks to balance state’s power and responsibility to
investigate offence, with its duty to protect individual rights and liberties of citizens.
It was submitted that Article 21 raises the presumption of innocence in favour of other
accused; consequently, this has to be at the centre of every consideration of penal
statutes and their interpretation.
23. It was also submitted that Section 438 being part of procedure established by
law is to be construed in a fair, just and reasonable manner. Learned counsel
reiterated that this was what the Court highlighted in Sibbia. Mr. Vishwanathan, after
outlining the background of Section 438 - in the context of the observations of the 41 st
Law Commission Report submitted that those comments should also be considered in
the light of the observations made in the Report of the Committee on Reforms of the
Criminal Justice System by Dr. Justice V.S. Malimath. Reliance on para 7.26.3.19
24. It was urged that the power of arrest with the police is under Section 41 of the
CrPC. That provision is in two parts. One, relating to offences in which the maximum
punishment can extend to imprisonment for seven year. Second, relating to offences in
which the maximum punishment can extend to imprisonment to above seven years or
death penalty. Though they have different conditions and thresholds, in both cases it is
clear from a bare reading of the section that the power of arrest cannot be exercised in
ever FIR that is registered u/s 154 Cr.PC. This power is circumscribed by the
conditions laid down in this section. Moreover, this principle that the power of arrest
is not required to be exercised in every case was recognized in the case of Joginder
Kumar v. State of U.P20; Lalitha Kumari v. State of U.P21; and Arnesh Kumar v. State
19
The Report remarked – after considering 3rd Report of the National Police
Commission that the “power of arrest was one of the chief sources of corruption in
the police. The report suggested that by and large nearly 60% of the arrests were
either unnecessary or unjustified and that such unjustified police action accounted for
43.2% of the expenditure of the prison department”.
20
1994 (4) SCC 260
21
2014 (2) SCC 1
82
of Bihar.22 This Court in M.C. Abraham v. State of Maharastra23 held that it was not
mandatory for the police to arrest a person only because his/her anticipatory bail had
been rejected. It was further stated that the power of arrest is then further
circumscribed by Section 438. As recognized by the Law Commission, there are cases
where the power of arrest is not required or allowed to be exercised. Exercising power
of arrest in such cases would be a grave violation of a person’s right and liberty. Such
exercise of power would amount to misuse of Section 41. The check on the power of
arrest and custody provided by Sections 437 or 439 is limited as the check is only post
facto. By then the person arrested has already suffered the trauma and humiliation of
arrest.
25. Counsel submitted to strike a further balance between the power of arrest and
the rights of the accused, the power under Section 438 is specifically given to the
Court of Session and the High Court so as to ensure that this judicial intervention is
done at the supervisory level and not at the magisterial level. It is in this light that the
two questions raised in the present reference need to be addressed. It was urged that a
bare reading of Section 438 shows that there is nothing in the language of the section
which goes to show that the pre-arrest bail granted under this section has to be time-
bound. The position is the same as in Sections 437 and 439. Counsel pointed to
Section 438 (3) and submitted that two important aspects of this provision highlight
the understanding the scheme of the Code:
a) A person in whose favour a pre-arrest bail order has been made under
Section 438 has to first be arrested. Such person is then released on bail on the
basis of the pre-arrest bail order. For such release the person has to comply
with the requirement of Section 441 of giving a bond or surety; and
b) Where the magistrate taking cognizance u/s 204 is of the view that a
warrant is required to be issued at the first instance, such magistrate is only
empowered to issue only a bailable warrant and not a non-bailable warrant.
22
2014 (8) SCC 273
23
2003 (2) SCC 649
83
26. This curtailment of power of the magistrate clearly shows Parliamentary intent
that one who is granted relief under Section 438 ought not to be arrested at the stage
of cognizance because of the said pre-arrest bail order. Considering this express
provision, no other interpretation can be given to the said section. The second question
referred here squarely covered by this sub-section. This order passed under Section
438, is a pre-arrest direction (to release on bail, in the event of arrest), is subject to the
power granted to the Court of Session and the High Court under Section 439(2) Cr.
P.C. It is clear from the provision that a bail granted under Section 438 is further
governed by Section 439(2) which gives the power to the Court of Session or the High
Court to direct the arrest of the accused at any time. This ensures that through judicial
intervention the balance between the two competing principles can again be revisited
if the need arises. In other words, considering any relevant change in circumstances
the prosecution can seek the arrest of the accused. The only difference is that the
power of arrest in these cases is exercised only after judicial scrutiny. This provision
envisions that the Code presupposes that orders once passed under Sections 438 and
439 will continue till a contrary order is passed under Section 439(2). The order
passed under Sections 438 or 439 are not and temporary or time bound. Therefore, a
person enjoying the benefit of orders under these sections can be taken into custody
only when a specific direction is passed under Section 439(2). This direction for
arrest under Section 439 (2) is different from seeking cancellation of bail.
27. It was argued that undoubtedly violation of a condition imposed in an order
passed under Section 438 can lead to a direction of arrest under Section 439(2).
However, the scope of Section 439(2) is not limited to only cancellation of bail.
Counsel stated that this proposition of law was considered by this court in Pradeep
Ram v. State of Jharkhand24. In this case, this court while considering an earlier
judgment in Mithabhai Pashabhai Patel v. State of Gujarat25, held that by virtue of
Sections 437(5) and 439(2), a direction to take a person into custody could be passed
despite his being released on bail, by a previous order. The court held that under
Sections 437(5) and 439(2) a person could be directed to be taken into custody
24
2019 SCC Online (SC) 825
25
2009 (6) SCC 332,
84
without necessarily cancelling his earlier bail. The difference between cancellation of
bail and a direction to take a person into custody under Section 439(2) was
recognised. It was also held in this case that if a graver offence is added to the FIR or
to the case after the person has been granted bail, a direction under Section 439(2) or
437(5) is required before such person can be arrested again for the new offences added
to the case. Therefore, this court recognized the need for court’s supervision after the
bail had been granted.
28. Mr. Hiren Raval, learned amicus curiae, highlighted that while there are
passages in Sibbia (supra), which support the arguments of the petitioners, that orders
under Section 438 can be unconditional and not limited by time, the court equally
struck a note of caution, and wished courts to be circumspect while making orders of
anticipatory bail. In this regard, learned senior counsel highlighted paragraphs 42 and
43 of the decisions in Sibbia.
29. Elaborating on his submissions, the amicus submitted that whether to impose
any conditions or limit the order of anticipatory bail in point of time undoubtedly falls
within the discretion of the court seized of the application. He however submitted that
this discretion should be exercised with caution and circumspection. Counsel
submitted that there could be three situations when anticipatory bail applications are to
be considered: one, when the application is filed in anticipation of arrest, before filing
FIR; two, after filing FIR, but before the filing of the charge sheet; and three, after
filing charge sheet. It was submitted that as a matter of prudence and for good reasons,
articulated in Salauddin, K.L. Verma, Adri Dharan Das and decisions adopting their
reasoning, it would be salutary and in public interest for courts to impose time limits
for the life of orders of anticipatory bail. Counsel submitted that if anticipatory bail is
sought before filing of an FIR the courts should grant relief, limited till the point in
time, when the FIR is filed. In the second situation, i.e. after the FIR is filed, the court
may limit the grant of anticipatory bail till the point of time when a charge sheet is
filed; in the third situation, if the application is made after filing the charge sheet, it is
up to the court, to grant or refuse it altogether, looking at the nature of the charge.
Likewise, if arrest is apprehended, the court should consider the matter in an entirely
discretionary manner, and impose such conditions as may be deemed appropriate.
85
30. Mr. Raval submitted that in every contingency, the court is not powerless after
the grant of an order of anticipatory bail; it retains the discretion to revisit the matter if
new material relevant to the issue, is discovered and placed on record before it. He
highlighted Section 439(2) and argued that that provision exemplified the power of the
court to modify its previous approach and even revoke altogether an earlier order
granting anticipatory bail. It was submitted that the bar under Section 362 of the Code
(against review of an order by a criminal court) is inapplicable to matters of
anticipatory bail, given the nature and content of the power under Section 439(2).
31. Mr. Raval also submitted that power under Section 438 cannot be exercised to
undermine any criminal investigation. He highlighted the concern that an
unconditional order of anticipatory bail, would be capable of misuse to claim
immunity in a blanket manner, which was never the intent of Parliament. Counsel
submitted that besides, the discretion of courts empowered to grant anticipatory bail
should be understood as balancing the right to liberty and the public interest in a fair
and objective investigation. Therefore, such orders should be so fashioned as to ensure
that accused individuals co-operate during investigations and assist in the process of
recovery of suspect or incriminating material, which they may lead the police to
discover or recover and which is admissible, during the trial, per Section 27 of the
Evidence Act. He submitted that if these concerns are taken into account, the
declaration of law in Mhetre – particularly in Paras 122 and 123 that no condition can
be imposed by court, in regard to applications for anticipatory bail, is erroneous; it is
contrary to Para 42 and 43 of the declaration of law in Sibbia’s case (supra). It was
emphasized that ever since the decision in Salauddin and other subsequent judgments
which followed it, the practise of courts generally was to impose conditions while
granting anticipatory bail: especially conditions which required the applicant/ accused
to apply for bail after 90 days, or surrender once the charge sheet was filed, and apply
for regular bail. Counsel relied on Section 437(3) to say that the conditions spelt out in
that provision are to be considered, while granting anticipatory bail, by virtue of
Section 438(2).
32. Mr. Tushar Mehta, learned Solicitor General and Mr. Vikramjit Banerjee,
learned Additional Solicitor General, submitted that the decision in Mhetre (supra) is
86
erroneous and should be overruled. It was submitted that though Section 438 does not
per se pre-suppose imposition of conditions for grant of anticipatory bail,
nevertheless, given Section 438(2) and Section 437(3), various factors must be taken
into account. Whilst exercising power to grant (or refuse) a direction in the nature of
anticipatory bail, the court is bound to strike a balance between the individual's right
to personal freedom and the right of investigation of the police. For this purpose, in
granting relief under Section 438(1), appropriate conditions can be imposed under
Section 438(2) to ensure an unimpeded investigation. The object of imposing
conditions is to avoid the possibility of the person or accused hampering investigation.
Thus, any condition, which has no reference to the fairness or propriety of the
investigation or trial, cannot be countenanced as permissible under the law.
Consequently, courts should exercise their discretion in imposing conditions with care
and restraint.
33. The law presumes an accused to be innocent till his guilt is proved. As a
presumably innocent person, he is entitled to all the fundamental rights including the
right to liberty guaranteed under Article 21 of the Constitution. Counsel stated that at
the same time, while granting anticipatory bail, the courts are expected to consider and
keep in mind the nature and gravity of accusation, antecedents of the applicant,
namely, about his previous involvement in such offence and the possibility of the
applicant to flee from justice. It is also the duty of the Court to ascertain whether
accusation has been made with the object of injuring or humiliating him by having
him so arrested. It is needless to mention that the Courts are duty bound to impose
appropriate conditions as provided under Section 438(2) of the Code.
34. Counsel argued that there is no substantial difference between Sections 438 and
439 of the Code as regards appreciation of the case while granting or refusing bail.
Neither anticipatory bail nor regular bail, however, can be granted as a matter of rule.
Being an extraordinary privilege, should be granted only in exceptional cases. The
judicial discretion conferred upon the court must be properly exercised after proper
application of mind to decide whether it is a fit case for grant of anticipatory bail. In
this regard, counsel relied on Jai Prakash Singh v State of Bihar26. Counsel relied on
26
2012 (4) SCC 325
87
State of M.P. & Anr. v Ram Kishna Balothia & Anr. 27 where this court considered the
nature of the right of anticipatory bail and observed that:
“We find it difficult to accept the contention that Section 438 of the
Code of Criminal Procedure is an integral part of Article 21. In the first
place, there was no provision similar to Section 438 in the old Code of
Criminal Procedure......Also anticipatory hail cannot he granted as a
matter of right. It is essentially a statutory right conferred long after the
coming into force of the Constitution. It cannot he considered as an
essential ingredient of Article 21 of the Constitution. and its non-
application to a certain special category of offences cannot he
considered as violative of Article 21.”
35. The decisions in Savitri Agarwal v. State of Maharashtra & Anr 28, and Sibbia
were referred to, to argue that before granting an order of anticipatory bail, the court
should be satisfied that the applicant seeking it has reason to believe that he is likely to
be arrested for a non-bailable offence and that belief must be founded on reasonable
grounds. Mere "fear" is not belief; it is insufficient for an applicant to show that he has
some sort of vague apprehension that someone is going to accuse him, for committing
an offence pursuant to which he may be arrested. An applicant’s grounds on which he
believes he may be arrested for a non-bailable offence, must be capable of
examination by the Court objectively. Specific events and facts should be disclosed to
enable the Court to judge of the reasonableness of his belief, the existence of which is
the sine qua non of the exercise of power conferred by the Section. It was pointed out
that the provisions of Section 438 cannot be invoked after the arrest of the accused.
After arrest, the accused must seek his remedy under Section 437 or Section 439 of
the Code, if he wants to be released on bail in respect of the offence or offences for
which he is arrested. The following passages in Savitri Agarwal (supra) were relied
upon:
37. Mr. Aman Lekhi, learned Additional Solicitor General, urged that the general
drift of reasoning in Sibbia was not in favour of a generalized imposition of
conditions- either as to the period (in terms of time, or in terms of a specific event,
such as filing of charge sheet) limiting the grant of anticipatory bail. It was
submitted that the text of Section 439(2) applied per se to all forms of orders-
including an order or direction to release an applicant on bail (i.e. grant of
anticipatory bail), upon the court’s satisfaction that it is necessary to do so. Such
order (of cancellation, under Section 439(2) or direction to arrest) may made be
where the conditions made applicable at the time of grant of relief, are violated or
not complied with, or where the larger interests of a fair investigation necessitate it.
38. The concept of bail, i.e. preserving the liberty of citizen – even accused of
committing offences, but subject to conditions, dates back to antiquity. Justinian I in
the collections of laws and interpretations which prevailed in his times, Codex
Justinianus (or ‘Code Jus’) in Book 9 titled Title 3(2) stipulated that “no accused
person shall under any circumstances, be confined in prison before he is convicted”.
The second example of a norm of the distant past is the Magna Carta which by clause
44 enacted that “people who live outside the forest need not in future appear before
the Royal Justices of the forest in answer to the general summons unless they are
actually involved in proceedings or are sureties for someone who has been seized for
a forest offence.” Clear Parliamentary recognition of bail took shape in later
enactments in the UK through the Habeas Corpus Act 1677 and the English Bill of
90
Rights, 1689 which prescribed that “excessive bail ought not to be required, nor
excessive fines imposed, nor cruel and unusual punishments inflicted”.
39. Bail ipso facto has not been defined under the Code. It is now widely
recognized as a norm which includes the governing principles enabling the setting of
accused person on liberty subject to safeguards, required to make sure that he is
present whenever needed. The justification for bail (to one accused of commission or
committing a crime is that it preserves a person who is under cloud of having
transgressed law but not convicted for it, from the rigors of a detention.
40. Section 438 of the Cr.PC provides for the issuance of directions for the grant of
bail to a person apprehending arrest. The Cr.PC of 1973 replaced the old code of 1898.
The old code did not provide for any corresponding provision to Section 438 of the
code of 1973. Under the old code, there was a sharp difference of opinion amongst the
various High Courts on the question as to whether courts had the inherent power to
pass an order of bail in anticipation of arrest. The predominant position was that
courts did not have such a power. Subsequently, the need for various amendments to
make the code more comprehensive resulted in the enactment of the Code of Criminal
Procedure in 1973. Interestingly, Section 438 does not expressly use the term
“anticipatory bail”; its language instead empowers the concerned to court to issue
directions for grant of bail.
41. The Law Commission of India, in its 41st Report of 1969, noted that the
necessity for granting anticipatory bail arises mainly due to influential persons
attempting to implicate their rivals in false cases, or disgracing them by getting them
detained in jail. The report further noted that apart from false cases, where there are
reasonable grounds for holding that a person accused of an offence is not likely to
abscond, or otherwise misuse his liberty while on bail, there seems to be no
justification to require him first to submit to custody, remain in prison for some days
and then apply for bail. The report recommended that a provision be included for the
direction to grant bail in such cases, and that this power vest in the High Courts and
Courts of Session only. The report, however, did not include the conditions for grant
of anticipatory bail in the suggested language for the provision. Certain conditions that
91
courts may include were, however included in the provision that was enacted as
Section 438 of the Cr.PC, 1973.
42. The term ‘anticipatory bail’ finds no place in the Cr.PC itself but was used by
the Law Commission of India in its 41 st Report. The term was used to convey that it
was an application for bail in anticipation of arrest, i.e., before the arrest itself is made.
Grant of bail, according to Wharton’s Law Lexicon, and as noticed in Sibbia (supra),
means to “set at liberty a person arrested or imprisoned, on security being taken for
his appearance”. Sibbia, observed thus:
92
argued that anticipatory bail is an extraordinary remedy and therefore, whenever it
appears that the proposed accusations are prima facie plausible, the applicant should
be left to the ordinary remedy of applying for bail under Section 437 or Section 439 of
the Cr.PC, after being arrested.
44. Counsel for the appellants in Sibbia, on the other hand, argued that since the
denial of bail amounts to deprivation of personal liberty, courts should lean against the
imposition of unnecessary restrictions on the scope of Section 438, when no such
restrictions are prescribed by the legislature under that provision. The Court observed
that Section 438(1) is couched in broad and unqualified terms and was of the opinion
that such broad language ought not to be infused with restraints and conditions which
the legislature itself did not think proper or necessary to impose. The court laid
emphasis on the primacy of the presumption of innocence in criminal jurisprudence,
and observed that Section 438 was not enacted on a clean slate, but rather within the
context of the existing provisions, Sections 437 (dealing with the power of courts
other than the Court of Session and the High Court to grant bail in nonbailable cases)
and Section 439 (which deals with the "special powers" of the High Court and the
Court of Session regarding bail). In the light of the relevant extracts of Sibbia, it
would now be worthwhile to recount the relevant observations on the issue. The
discussion and conclusions in Sibbia are summarized as follows:
(ii) Grant of an order under Section 438(1) does not per se hamper investigation of an
offence; Section 438(1)(i) and (ii) enjoin that an accused/applicant should co-operate
with investigation. Sibbia (supra) also stated that courts can fashion appropriate
conditions governing bail, as well. One condition can be that if the police make out a
case of likely recovery of objects or discovery of facts under Section 27 (of the
Evidence Act, 1872), the accused may be taken into custody. Given that there is no
93
formal method prescribed by Section 46 of the Code if recovery is made during a
statement (to the police) and pursuant to the accused volunteering the fact, it would be
a case of recovery during “deemed arrest” (Para 19 of Sibbia).
(iii) The accused is not obliged to make out a special case for grant of anticipatory
bail; reading an otherwise wide power would fetter the court’s discretion. Whenever
an application (for relief under Section 438) is moved, discretion has to be always
exercised judiciously, and with caution, having regard to the facts of every case. (Para
21, Sibbia).
(iv) While the power of granting anticipatory bail is not ordinary, at the same time, its
use is not confined to exceptional cases (Para 22, Sibbia).
(v) It is not justified to require courts to only grant anticipatory bail in special cases
made out by accused, since the power is extraordinary, or that several considerations –
spelt out in Section 437- or other considerations, are to be kept in mind. (Para 24-25,
Sibbia).
(vi) Overgenerous introduction (or reading into) of constraints on the power to grant
anticipatory bail would render it Constitutionally vulnerable. Since fair procedure is
part of Article 21, the court should not throw the provision (i.e. Section 438) open to
challenge “by reading words in it which are not to be found therein.” (Para 26).
(vii) There is no “inexorable rule” that anticipatory bail cannot be granted unless the
applicant is the target of mala fides. There are several relevant considerations to be
factored in, by the court, while considering whether to grant or refuse anticipatory
bail. Nature and seriousness of the proposed charges, the context of the events likely
to lead to the making of the charges, a reasonable possibility of the accused’s presence
not being secured during trial; a reasonable apprehension that the witnesses might be
tampered with, and “the larger interests of the public or the state” are some of the
considerations. A person seeking relief (of anticipatory bail) continues to be a man
presumed to be innocent. (Para 31, Sibbia).
94
(viii) There can be no presumption that any class of accused- i.e. those accused of
particular crimes, or those belonging to the poorer sections, are likely to abscond.
(Para 32, Sibbia).
(ix) Courts should exercise their discretion while considering applications for
anticipatory bail (as they do in the case of bail). It would be unwise to divest or limit
their discretion by prescribing “inflexible rules of general application.”. (Para 33,
Sibbia).
(x) The apprehension of an applicant, who seeks anticipatory bail (about his
imminent or possible arrest) should be based on reasonable grounds, and rooted on
objective facts or materials, capable of examination and evaluation, by the court, and
not based on vague un-spelt apprehensions. (Para 35, Sibbia).
(xi) The grounds for seeking anticipatory bail should be examined by the High Court
or Court of Session, which should not leave the question for decision by the concerned
Magistrate. (Para 36, Sibbia).
(xii) Filing of FIR is not a condition precedent for exercising power under Section
438; it can be done on a showing of reasonable belief of imminent arrest (of the
applicant). (Para 37, Sibbia).
(xiii) Anticipatory bail can be granted even after filing of an FIR- as long as the
applicant is not arrested. However, after arrest, an application for anticipatory bail is
not maintainable. (Para 38-39, Sibbia).
(xiv) A blanket order under Section 438, directing the police to not arrest the
applicant, “wherever arrested and for whatever offence” should not be issued. An
order based on reasonable apprehension relating to specific facts (though not spelt out
with exactness) can be made. A blanket order would seriously interfere with the duties
of the police to enforce the law and prevent commission of offences in the future.
(Para 40-41, Sibbia).
(xv) The public prosecutor should be issued notice, upon considering an application
under Section 438; an ad interim order can be made. The application “should be re-
95
examined in the light of the respective contentions of the parties.” The ad interim
order too must conform to the requirements of the section and suitable conditions
should be imposed on the applicant even at that stage. “Should the operation of an
order passed under Section 438(1) be limited in point of time? Not necessarily. The
court may, if there are reasons for doing so, limit the operation of the order to a short
period until after the filing of an FIR in respect of the matter covered by the order. The
applicant may in such cases be directed to obtain an order of bail under Section 437
or 439 of the Code within a reasonably short period after the filing of the FIR as
aforesaid. But this need not be followed as an invariable rule. The normal rule should
be not to limit the operation of the order in relation to a period of time.” (Para 42,
Sibbia).
46. It is quite evident, therefore, that the pre-dominant thinking of the larger,
Constitution Bench, in Sibbia (supra), was that given the premium and the value that
the Constitution and Article 21 placed on liberty- and given that a tendency was
noticed, of harassment – at times by unwarranted arrests, the provision for anticipatory
bail was made. It was not hedged with any conditions or limitations- either as to its
duration, or as to the kind of alleged offences that an applicant was accused of having
committed. The courts had the discretion to impose such limitations (likeco-operation
with investigation, not tampering with evidence, not leaving the country etc) as were
reasonable and necessary in the peculiar circumstances of a given case. However,
there was no invariable or inflexible rule that the applicant had to make out a special
case, or that the relief was to be of limited duration, in a point of time, or was
unavailable for any particular class of offences.
47. At this stage, it would be essential to clear the air on the observations made in
some of the later cases about whether Section 438 is an essential element of Article
21. Some judgments, notably Ram Kishna Balothia & Anr. (supra) and Jai Prakash
Singh v State of Bihar31 held that the provision for anticipatory bail is not an essential
ingredient of Article 21, particularly in the context of imposition of limitations on the
discretion of the courts while granting anticipatory bail, either limiting the relief in
31
2012 (4) SCC 379
96
point of time, or some other restriction in respect of the nature of the offence, or the
happening of an event. We are afraid, such observations are contrary to the broad
terms of the power declared by the Constitution Bench of this court in Sibbia (supra).
The larger bench had specifically held that an “over-generous infusion of constraints
and conditions which are not to be found in Section 438 can make its provisions
constitutionally vulnerable since the right to personal freedom cannot be made to
depend on compliance with unreasonable restrictions.”
50. The interpretation of Section 438- that it does not encapsulate Article 21, is
erroneous. This court is of the opinion that the issue is not whether Section 438 is an
intrinsic element of Article 21: it is rather whether that provision is part of fair
32
1978 (1) SCC 240
97
procedure. As to that, there can be no doubt that the provision for anticipatory bail is
pro-liberty and enables one anticipating arrest, a facility of approaching the court for a
direction that he or she not be arrested; it was specifically enacted as a measure of
protection against arbitrary arrests and humiliation by the police, which Parliament
itself recognized as a widespread malaise on the part of the police.
51. The forty first and forty-eight reports of the Law Commission were noticed by
this court in Sibbia (supra). Thereafter, the Law Commission, in its 154th report had
occasion to deal with the subject; it recommended no substantial change, - except
procedural additions to Section 438 and observed as follows:
“18. In the various workshops diverse views were expressed regarding the
retention or deletion of the provision of anticipatory bail. One view is that
it is being misused by affluent and influential sections of accused in society
and hence, be deleted from the Code. The other view is that it is a salutary
provision to safeguard the personal liberty and therefore be retained.
Misuse of the same in some instances by itself cannot be a ground for its
deletion. However, some restraints may be imposed in order to minimise
such misuse. We are, however, of the opinion that the provision contained
under S. 438 regarding anticipatory bail should remain in the Code but
subject to the amendments suggested in cl. 43 of the Code of Criminal
Procedure (Amendment) Bill, 1994 which lays down adequate safeguards.”
33
33
The relevant extract of Clause 43 of the proposed 1994 amendment read as
follows:
“In S. 438 of the principal Act for sub-s. (1), the following sub-sections shall
be substituted, namely:
(1) Where any person has reason to believe that he may be arrested on
accusation of having committed a non-bailable offence, he may apply to the
High Court or the Court of Session for a direction under this section that in
the event of such arrest, he shall be released on bail; and that Court may, after
taking into consideration, inter alia, the following factors, namely:
(i) the nature and gravity of the accusation;
(ii) the antecedents of the applicant including the fact as to whether he has
previously undergone imprisonment on conviction by a Court in respect of
any cognizable offence;
(iii) the possibility of the applicant to flee from justice; and
(iv) where the accusation has been made with the objection of injuring or
humiliating the applicant by having him so arrested,
98
Interestingly, the 177th report of the Law Commission lamented that the power of
arrest was being misused by police in a widespread manner. 34
52. The persistence of the phenomena unwarranted arrests was sharply criticised by
this court in Arnesh Kumar(supra), saying that the approach of the police continued to
be colonial despite six decades of independence, that the power of arrest is
“…is largely considered as a tool of harassment, oppression and surely
not considered a friend of public. The need for caution in exercising the
either reject the application forthwith or issue an interim order for the grant
of anticipatory bail:
Provided that, where the High Court or, as the case may be, the Court of
Session, has not passed any interim order under this sub-section or has rejected the
application for grant of anticipatory bail, it shall be open to an officer-in-charge of a
police station to arrest, without warrant the applicant, if there are reasonable
grounds for such arrest.
(1-A) Where the Court grants an interim order under sub-s. (1), it shall forthwith
cause a notice being not less than seven days notice, together with a copy of such
order to be served on the Public Prosecutor and the Superintendent of Police,
with a view to give the Public Prosecutor a reasonable opportunity of being heard
when the application shall be finally heard by the Court.
(1-B) The presence of the applicant seeking anticipatory bail shall be obligatory
at the time of final hearing of the application and passing of final order by the
Court, if on an application made to it by the Public Prosecutor, the Court
considers such presence necessary in the interest of justice.”
34
One hundred and seventy seventh [177th] Report, submitted in December 2001
(Law Commission of India, 177th Report, Annexure-III para1.8 said that:
The latest report of the Law Commission35 notes that “67 per cent of the prison
population is awaiting trial in India”. Therefore, the need for a provision to ensure
anticipatory bail, is as crucial, as it was at the time of its introduction, and at the time
Sibbia (supra) was decided.
53. Various reasons- given in judgments, rendered after Sibbia (supra), starting
with Salauddin (supra), have highlighted that anticipatory bail orders have to be
constrained by conditions, notably with reference to time (i.e. three months, etc) or till
the happening of a certain event. The reasons, and observations, limiting the duration
of grant of anticipatory bail are outlined below:
(1) “such anticipatory bail orders should be of a limited duration only and
ordinarily on the expiry of that duration or extended duration the court
granting anticipatory bail should leave it to the regular court to deal with the
matter on an appreciation of evidence placed before it after the investigation
has made progress or the charge-sheet is submitted”. (Saluddin and K.L.
Verma, supra).
passing day (which is technically called a civil service for the purposes of Service
Jurisprudence) and whose acts touch upon the liberty and freedom of the citizens of
this country and not merely their entitlements and properties.
35
268th Report, 2017.
100
(3) Custodial interrogation of “accused is indispensably necessary for the
investigating agency” to unearth materials in criminal conspiracies (Ref. to
unearth all the links involved in the criminal conspiracies” (Bimal Krishna
Kundu and Muraleedharan, [supra])
(4) Imposing time limits (till filing of FIR, or filing of charge-sheet etc) would
enable the court- which is seized of the main case and monitors it, to consider the
nature and gravity of the offence, having regard to the fresh materials unearthed
and included as prosecution evidence. Therefore, it would be salutary and in
public interest to require courts to impose time limits for the life of orders of
anticipatory bail the event of filing of FIR or charge sheet, are essential
ingredients to an order under Section 438. (Salauddin, K.L. Verma, and Adri
Dharan Das). Some decisions have also stressed that economic offences need a
different approach and therefore, anticipatory bail should not be granted readily.36
54. A fuller consideration of the various decisions cited earlier, especially those
which emphasized the need to limit the life of an order of anticipatory bail, are
premised on the understanding that the grant of an unconditional order of bail would
thwart investigation. In the first place, this premise is unfounded, given that Sibbia
(supra) stated (in para 13, SCC reports) that such an order would be “contrary to the
36
In P. Chidambaram v. Directorate of Enforcement, (2019) 9 SCC 24 it was held as
follows:
“However, the court must also keep in view that a criminal offence is not just an
offence against an individual, rather the larger societal interest is at stake. Therefore, a
delicate balance is required to be established between the two rights—safeguarding the
personal liberty of an individual and the societal interest…..
83. Grant of anticipatory bail at the stage of investigation may frustrate the
investigating agency in interrogating the accused and in collecting the useful information
and also the materials which might have been concealed. Success in such interrogation
would elude if the accused knows that he is protected by the order of the court. Grant of
anticipatory bail, particularly in economic offences would definitely hamper the effective
investigation. Having regard to the materials said to have been collected by the respondent
Enforcement Directorate and considering the stage of the investigation, we are of the view
that it is not a fit case to grant anticipatory bail.”
The court cited other previous decisions, i.e. State v. Anil Sharma (1997) 7 SCC 187;
Sudhir v. State of Maharashtra 2016 (1) SCC 146; and Directorate of Enforcement v. Hassan
Ali Khan (2011) 12 SCC 684.
101
terms” of Section 438; and furthermore, that conditions mentioned in Section 438(2)
could be imposed while granting anticipatory bail. Here, one is conscious of the fact
that the requirement of imposing conditions is not compulsive (noticing the use of the
term “may” which precedes the requirement of imposing conditions). Nevertheless, an
unconditional order, in the sense of an order not even imposing conditions mentioned
in Section 438(2) can impede or hamper investigation, Sibbia (supra) held that the
conditions mentioned in that provision should be imposed. This requirement is more a
matter of prudence, while granting relief.
55. This court cannot lose sight of the fact that the Law Commission’s 41 st and 48th
report focused on the need to introduce the provision (for anticipatory bail) as a
preventive, or curative measure, to deal with a particular problem, i.e. unwarranted
arrests. Sibbia (supra) noticed this fact, and also that significantly, Section 438 is not
hedged with any obligation on the court’s power, to impose conditions. That situation
remains unchanged: the provision remains unaltered-at least substantially (barring an
amendment in 2005 which obliged the issuance of notice to the public prosecutor
before issuing any order for anticipatory bail)37. The 203rd Report of the Law
Commission, which reviewed the entire law on the subject and noticed later decisions,
37
The amendment, i.e. Criminal Procedure Code (Amendment) Act, 2005 – which has till
now, not been brought into force, reads as follows:
[“(1) Where any person has reason to believe that he may be arrested
on accusation of having committed a non- bailable offence, he may apply to
the High Court or the Court of Session for a direction under this section; that
in the event of such arrest, he shall be released on bail and the Court may after
taking into consideration inter- alia the following factors namely.
(i) the nature and gravity of the accusation
(ii) the antecedents of the applicant including the fact as to whether he
has previously undergone imprisonment on conviction by a Court in respect of
any cognizable offence
(iii) the possibility of the applicant to flee from justice and
(iv) where the accusation has been made with the object of injuring or
humiliating the applicant by having him so arrested,
either reject the application forthwith or issue an interim order for the
grant of anticipatory bail.
102
such as Salauddin, Adari Narain Das, etc, recommended no change in law on this
aspect relating to conditions. In this background, it is important to notice that the only
bar, or restriction, imposed by Parliament upon the exercise of the power (to grant
anticipatory bail) is by way of a positive restriction, i.e. in the case where accused are
alleged to have committed offences punishable under Section 376(3) or Section
376AB or Section 376DA or Section 376DB of the Indian Penal Code. In other words,
Parliament has now denied jurisdiction of the courts (i.e. Court of Session and High
Courts) from granting anticipatory bail to those accused of such offences. The
amendment (Code of Criminal Procedure Amendment Act, 2018) introduced Section
438(4)) reads as follows:
"(4) Nothing in this section shall apply to any case involving the arrest of
any person on accusation of having committed an offence under sub-
section (3) of section 376 or section 376AB or section 376DA or section
376DB of the Indian Penal Code."
Provided that where the High Court or as the case may be the Court of
Session has not passed any interim order under this sub-section or has rejected
the application for grant of anticipatory bail it shall be open to an officer in
charge of police station to arrest without warrant the applicant on the basis of
the accusation apprehended in such application
(IA) Where the Courts grants an interim order under sub-section (1), it
shall forthwith cause a notice being not less than seven days notice, together
with the copy of such order to be served on the Public Prosecutor and the
Superintendent of Police, with a view to give the Public Prosecutor a
reasonable opportunity of being heard when the application shall be finally
heard by the Court
(IB) The presence of the applicant seeking anticipatory bail shall be
obligatory at the time of final hearing of the application and passing of final
order by the Court, if on an application made to it by the Public Prosecutor, the
Court considers such presence necessary in the interest of justice.]
103
56. Clearly, therefore, where the Parliament wished to exclude or restrict the power
of courts, under Seciton 438 of the Code, it did so in categorical terms. Parliament’s
omission to restrict the right of citizens, accused of other offences from the right to
seek anticipatory bail, necessarily leads one to assume that neither a blanket
restriction can be read into by this court, nor can inflexible guidelines in the exercise
of discretion, be insisted upon- that would amount to judicial legislation.
57. Turning now to the various concerns that impelled this court in Salauddin, K.L.
Verma, Sunita Devi; Nirmal Jeet Kaur and Adri Dharan Das, HDFC Bank, J.J.
Manan (supra) and other decisions which outlined the various concerns and problems
faced by the prosecuting agency, or the police, or that competent courts would be
deprived of oversight, thus, leading to directions that courts should impose time
restrictions, or grant temporary or limited bail (e.g. filing of charge sheet etc.), this
court proposes to deal with such reasoning hereafter.
58. The various reasons which led to the imposition of restrictions or limitations by
the decisions noted previously, hinge upon factors such as: addition of graver offences
which the applicant is alleged to have committed after the grant of anticipatory bail;
unearthing of facts disclosing his or her complicity in serious offences, as for instance,
a conspirator or kingpin; the accused’s non-cooperation in the course of investigation,
(such as, for example, difficulty in securing his person, evasion by him, reluctance to
answer questions during the investigation or providing statements for purposes of
recovery of articles in terms of Section 27 of the Evidence Act); involvement in very
serious or grave offences such as murder, kidnapping, causing death under unusual
circumstances and offences which undermine the economy; disclosure of information
that the offence involves large scale fraud and several individuals or victims, and, the
filing of charge-sheet. Each of or all of them put together, in the opinion of the court,
neither hold insurmountable problem, nor are unforeseen situations or not anticipated
in Sibbia (supra).
59. The controlling expressions under Section 438(2) spell out three distinct
conditions, which the court granting anticipatory bail can include as directions. These
are- that the applicant makes himself available for interrogation by police officer, as
104
and when required; that such applicant should not directly or indirectly make any
inducement, threat or promise to any person acquainted with the facts of the case so as
to dissuade him from disclosing such facts to the court or to any police officer; a
condition that the person should not leave India without the permission of the court.
Further conditions as may be deemed essential, may also be imposed by the court,
under Section 437(3). The Court in Sibbia (supra) was alive to the necessity of
imposing conditions as is evident from para 13 of its judgment. The court observed
that there was nothing in law which stated that whenever anticipatory bail is granted,
it should be without imposing any of those conditions. Sibbia (supra) went on to state
that such unconditional orders would be plainly contrary to the very terms of Section
438. The court also noted that though couched in discretionary terms, which means
that the courts could impose those conditions, perhaps viewed pragmatically, they
should do so. What this court in Sibbia (supra) was concerned with, and cautioned
other courts against was that the process of construction and interpretation ought not
to compel the courts to “cut down by reading into the statute conditions which are not
to be found therein.”
60. The context and nature which Sibbia (supra) considered is that discretion ought
to be exercised by the Full Bench judgment of the Punjab and Haryana High Court
which cautioned that the power to grant anticipatory bail should be used sparingly and
in exceptional cases and that all conditions under Section 437 should be read into in
Section 438. Furthermore, the High Court had required that an applicant ought to
make out a special case for grant of anticipatory bail; it was also stated that in cases
wherever remand was sought, or a reasonable cause to secure incriminating material
in terms of Section 27 of the Evidence Act could be made out, anticipatory bail ought
not to be granted and that it could not be granted in regard to offences punishable with
death or imprisonment for life unless the court is satisfied that the charge was false or
groundless. The court in Sibbia (supra) frowned upon imposition of such rules after
interpreting and in the course of the judgment held that the power to grant anticipatory
bail is wide and that the discretion is not limited in the manner that the High Court
suggested. At the same time, this court also emphasized that the discretion had to be
105
exercised while granting or refusing to grant in given cases on due application of mind
and in a judicious manner.
61. The imposition of conditions under Section 438(2) with reference to Section
437(3), in the opinion of this court, is enough safeguard for the authorities – including
the police and other investigating agencies, who have to investigate into crimes and
the possible complicity of the applicants who seek such relief. Taking each concern,
i.e. the addition of more serious offences; presence of a large number of individuals or
complainants; possibility of non-cooperation - non-cooperation in the investigation or
the requirement of the accused’s statement to aid the recovery of articles and
incriminating articles in the course of statements made during investigations – it is
noticeable, significantly, that each of these is contemplated as a condition and is
invariably included in every order granting anticipatory bail. In the event of violation
or alleged violation of these, the concerned authority is not remediless; recourse can
be had to Section 438(2) read with Section 437(3). Any violation of these terms would
attract a direction to arrest him. This power or direction to arrest is found in Section
437(5). However, that provision has no textual application to regular bail granted by
the Court of Sessions or High Courts under Section 439 or directions not to arrest, i.e.
order of anticipatory bail under Section 438. Secondly, Section 439(2) which is cast in
wide terms, adequately covers situations when an accused does not cooperate during
the investigation or threatens to, or intimidates witness[es] or tries to tamper with
other evidence.
62. It is important to notice, here that there is nothing in the provisions of Section
438 which suggests that Parliament intended to restrict its operation, either as regards
the time period, or in terms of the nature of the offences in respect of which, an
applicant had to be denied bail, or which special considerations were to apply. In this
context, it is relevant to recollect that the court would avoid imposing restrictions or
conditions in a provision in the absence of an apparent or manifest absurdity, flowing
from the plain and literal interpretation of the statute (Ref Chandra Mohan v. State of
Uttar Pradesh & Ors38). In Reserve Bank of India v. Peerless General Finance and
38
1967 (1) SCR 77
106
Investment Co. Ltd. & Ors39, the relevance of text and context was emphasized in the
following terms:
“Interpretation must depend on the text and the context. They are the bases
of interpretation. One may well say if the text is the texture, context is what
gives the colour. Neither can be ignored. Both are important. That
interpretation is best which makes the textual interpretation match the
contextual. A statute is best interpreted when we know why it was enacted.
With this knowledge, the statute must be read, first as a whole and then
Section by section, Clause by clause, phrase by phrase and word by word.
If a statute is looked at, in the context of its enactment, with the glasses of
the statute-maker, provided by such context, its scheme, the sections,
clauses, phrases and words may take colour and appear different than
when the statute is looked at without the glasses provided by the context.
With these glasses we must look at the Act as a whole and discover what
each section, each clause, each phrase and each word is meant and
designed to say as to fit into the scheme of the entire Act. No part of a
statute and no word of a statute can be construed in isolation. Statutes have
to be construed so that every word has a place and everything is in its
place.
63. Likewise, in Directorate of Enforcement v Deepak Mahajan 40 this court
referred to Maxwell on Interpretation of Statutes, Tenth Edn., to the effect that if the
ordinary meaning and grammatical construction, “leads to a manifest contradiction of
the apparent purpose of the enactment, or to some inconvenience or absurdity,
hardship or injustice, presumably not intended, a construction may be put upon it
which modifies the meaning of the words…”
64. This court, long back, in State of Haryana & Ors. v. Sampuran Singh & Ors 41.
observed that by no stretch of imagination a Judge is entitled to add something more
than what is there in the statute by way of a supposed intention of the legislature. The
cardinal principle of construction of statute is that the true or legal meaning of an
enactment is derived by considering the meaning of the words used in the enactment
in the light of any discernible purpose or object which comprehends the mischief and
its remedy to which the enactment is directed. It is sufficient, therefore to notice that
when Section 438 – in the form that exists today, (which is not substantially different
39
1987 (1) SCC 424
40
1994 (3) SCC 440
41
1975 (2) SCC 810
107
from the text of what was introduced when Sibbia was decided, except the insertion of
sub-section (4)) was enacted, Parliament was aware of the objective circumstances
and prevailing facts, which impelled it to introduce that provision, without the kind of
conditions that the state advocates to be intrinsically imposed in every order under it.
66. As regards the concern expressed on behalf of the state and the Union- that
unconditional orders (i.e. those unrelated to a particular time frame) would result in
non-co-operation of the accused, with the investigating officer or authority, or that
there would be reluctance to make statements to the prosecution, to assist in the
recovery of articles that incriminate the accused (and therefore can be used under
108
Section 27, Evidence Act), this court perceives such views to be vague and based
apparently pre-conceived notions. If there is non-cooperation by an accused – in the
course of investigation, the remedy of seeking assistance of the court exists.
Moreover, on this aspect too, Sibbia had envisioned the situation; the court had cited
State of U.P. v Deoman Upadhyaya42, where this court had observed as follows:
“One of such conditions can even be that in the event of the police making
out a case of a likely discovery under Section 27 of the Evidence Act,
person released on bail shall be liable to be taken in police custody for
facilitating the discovery. Besides, if and when the occasion arises, it may
be possible for the prosecution to claim the benefit of Section 27 of the
Evidence Act in regard to a discovery of facts made in pursuance of
information supplied by a person released on bail by invoking the
principle stated by this Court in State of U.P. v Deoman Upadhyaya.”
Therefore, the “limited custody” or “deemed custody” to facilitate the
requirements of the investigative authority, would be sufficient for the purpose of
fulfilling the provisions of Section 27, in the event of recovery of an article, or
42
1961 (1) SCR 14
43
1965 (3) SCR 854
109
discovery of a fact, which is relatable to a statement made during such event (i.e
deemed custody). In such event, there is no question (or necessity) of asking the
accused to separately surrender and seek regular bail.
67. Now, coming to the instruction in some decisions that anticipatory bail should
not be given, or granted with stringent conditions, upon satisfaction that the accused is
not involved, Sibbia, clearly disapproved the imposition of such restrictions, or ruling
out of certain offences or adoption of a cautious or special approach. It was held that:
“A close look at some of the rules in the eight-point code formulated by the
High Court will show how difficult it is to apply them in practice. The
seventh proposition says :
How can the Court, even if it had a third eye, assess the blatantness of
corruption at the stage of anticipatory bail? And will it be correct to say
that blatantness of the accusation will suffice for rejecting bail, even if the
applicant's conduct is painted in colours too lurid to be true? The eighth
proposition rule framed by the High Court says:
"Mere general allegations of mala fides in the petition are inadequate. The
court must be satisfied on materials before it that the allegations of mala
fide are substantial and the accusation appears to be false and groundless."
Does this rule mean, and that is the argument of the learned Additional
Solicitor-General, that the anticipatory bail cannot be granted unless it is
alleged (and naturally, also shown, because mere allegation is never
enough) that the proposed accusations are mala fide ? It is understandable
that if mala fides are shown anticipatory bail should be granted in the
generality of cases. But it is not easy to appreciate why an application for
anticipatory bail must be rejected unless the accusation is shown to be mala
fide. This, truly, is the risk involved in framing rules by judicial
construction. Discretion, therefore, ought to be permitted to remain in the
domain of discretion, to be exercised objectively and open to correction by
the higher courts. The safety of discretionary power lies in this twin
protection which provides a safeguard against its abuse.
According to the sixth proposition framed by the High Court, the discretion
under Section 438cannot be exercised in regard to offences punishable with
110
death or imprisonment for life unless, the court at the stage of granting
anticipatory bail, is satisfied that such a charge appears to be false or
groundless. Now, Section 438 confers on the High Court and the Court of
Session the power to grant anticipatory bail if the applicant has reason to
believe that he may be arrested on an accusation of having committed "a
non-bailable offence". We see no warrant for reading into this provision the
conditions subject to which bail can be granted under Section 437 (1) of the
Code. That section, while conferring the power to grant bail in cases of
non-bailable offences, provides by way of an exception that a person
accused or suspected of the commission of a non-bailable offence "shall not
be so released" if there appear to be reasonable grounds for believing that
he has been guilty of an offence punishable with death or imprisonment for
life. If it was intended that the exception contained in Section 437
(1) should govern the grant of relief under Section 438 (1), nothing would
have been easier for the legislature than to introduce into the latter section
a similar provision. We have already pointed out the basic distinction
between these two sections. Section 437 applies only after a person, who is
alleged to have committed a non-bailable offence, is arrested or detained
without warrant or appears or is brought before a court. Section
438 applies before the arrest is made and, in fact, one of the pre-conditions
of its application is that the person, who applies for relief under it, must be
able to show that he has reason to believe that "he may be arrested", which
plainly means that he is not yet arrested. The nexus which this distinction
bears with the grant or refusal of bail is that in cases falling under Section
437, there is some concrete data on the basis of which it is possible to show
that there appear to be reasonable grounds for believing that the applicant
has been guilty of an offence punishable with death or imprisonment for
life. In cases falling under Section 438 that stage is still to arrive and, in the
generality of cases thereunder, it would be premature and indeed difficult to
predicate that there are or are not reasonable grounds for so believing. The
foundation of the belief spoken of in Section 437 (1), by reason of which the
court cannot release the applicant on bail is, normally, the credibility of the
allegations contained in the First Information Report.”
68. For the above reasons, the answer to the first question in the reference made to
this bench is that there is no offence, per se, which stands excluded from the purview
of Section 438, - except the offences mentioned in Section 438 (4). In other words,
anticipatory bail can be granted, having regard to all the circumstances, in respect of
all offences. At the same time, if there are indications in any special law or statute,
which exclude relief under Section 438 (1) they would have to be duly considered.
Also, whether anticipatory offences should be granted, in the given facts and
circumstances of any case, where the allegations relating to the commission of
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offences of a serious nature, with certain special conditions, is a matter of discretion to
be exercised, having regard to the nature of the offences, the facts shown, the
background of the applicant, the likelihood of his fleeing justice (or not fleeing
justice); likelihood of co-operation or non-co-operation with the investigating agency
or police, etc. There can be no inflexible time frame for which an order of anticipatory
bail can continue.
69. Therefore, this court holds that the view expressed in Salauddin Abdulsamad
Shaikh, K.L. Verma, Nirmal Jeet Kaur, Satpal Singh, Adri Dharan Das, HDFC Bank,
J.J. Manan and Naresh Kumar Yadav (supra) about the Court of Sessions, or the High
Court, being obliged to grant anticipatory bail, for a limited duration, or to await the
course of investigation, so as the “normal court” not being “bye passed” or that in
certain kinds of serious offences, anticipatory bail should not be granted normally-
including in economic offences, etc are not good law. The observations – which
indicate that such time related or investigative event related conditions, should
invariably be imposed at the time of grant of anticipatory bail are therefore, overruled.
Similarly, the observations in Mhetre that “the courts should not impose restrictions
on the ambit and scope of section 438 Cr.P.C. which are not envisaged by the
Legislature. The court cannot rewrite the provision of the statute in the garb of
interpreting it” is too wide and cannot be considered good law. It is one thing to say
that as a matter of law, ordinarily special conditions (not mentioned in Section 438 (2)
read with Section 437 (3) should not be imposed; it is an entirely different thing to say
that in particular instances, having regard to the nature of the crime, the role of the
accused, or some peculiar feature, special conditions should not be imposed. The
judgment in Sibbia itself is an authority that such conditions can be imposed, but not
in a routine or ordinary manner and that such conditions then become an inflexible
“formula” which the courts would have to follow. Therefore, courts and can, use their
discretion, having regard to the offence, the peculiar facts, the role of the offender,
circumstances relating to him, his likelihood of subverting justice (or a fair
investigation), likelihood of evading or fleeing justice- to impose special conditions.
Imposing such conditions, would have to be on a case to case basis, and upon exercise
of discretion by the court seized of the application under Section 438. In conclusion, it
112
is held that imposing conditions such as those stated in Section 437 (2) while granting
bail, are normal; equally, the condition that in the event of the police making out a
case of a likely discovery under Section 27 of the Evidence Act, person released on
bail shall be liable to be taken in police custody for facilitating the discovery. Other
conditions, which are restrictive, are not mandatory; nor is there any invariable rule
that they should necessarily be imposed or that the anticipatory bail order would be for
a time duration, or be valid till the filing of the FIR, or the recording of any statement
under Section 161, Cr. PC, etc. Other conditions may be imposed, if the facts of the
case so warrant.
Re Question No. 2: Whether the life of an anticipatory bail should end at the
time and stage when the accused is summoned by the court.
70. The question here is whether there is anything in the law which per se requires
that upon filing of the charge-sheet, or the summoning of the accused, by the court –
(or even the addition of an offence in the charge-sheet, of which an applicant on bail
is accused of freshly), his liberty ought to be forfeited and that he should be asked to
surrender and apply for regular bail. The observations about the width and amplitude
of the power under Section 438, made in answer to the first question, are equally
relevant here too. In the present context, further, the judgment and observations of this
Court in its interpretation of Section 167(2) are telling. It was held in Gursharan
Singh (supra), the release by grant of bail of an accused under Section 167(2) amounts
to “deemed bail”. This is borne out by Section 167(2) which states that anyone
released on bail under its provision “shall be deemed to be so released under the
provisions of Chapter XXXIII for the purposes of that Chapter.” The judgment in
Aslam Babalal Desai (supra) has clarified that when an accused is released by
operation of Section 167(2) and subsequently, a charge-sheet is filed, there is no
question of the cancellation of his bail. In these circumstances, the mere fact that an
accused is given relief under Section 438 at one stage, per se does not mean that upon
the filing of a charge-sheet, he is necessarily to surrender or/and apply for regular bail.
The analogy to ‘deemed bail’ under Section 167(2) with anticipatory bail leads this
court to conclude that the mere subsequent event of the filing of a charge-sheet cannot
113
compel the accused to surrender and seek regular bail. As a matter of fact,
interestingly, if indeed, if a charge-sheet is filed where the accused is on anticipatory
bail, the normal implication would be that there was no occasion for the investigating
agency or the police to require his custody, because there would have been nothing in
his behavior requiring such a step. In other words, an accused, who is granted
anticipatory bail would continue to be at liberty when the charge sheet is filed, the
natural implication is that there is no occasion for a direction by the Court that he be
arrested and further that he had cooperated with the investigation. At the same time,
however, at any time during the investigation were any occasion to arise calling for
intervention of the court for infraction of any of the conditions imposed under Section
437(3) read with Section 438(2) or the violation of any other condition imposed in the
given facts of a case, recourse can always be had under Section 439(2).
71. Section 438 (3) states that when a person is granted anticipatory bail, is later
arrested without warrant by an officer in charge of a police station “on such
accusation”, and is willing to give bail, “he shall be released on bail; and if a
Magistrate taking cognizance of such offence decides that a warrant should issue in
the first instance against that person he shall issue a bailable warrant in conformity
with the direction of the Court under sub-section (1)”. The order granting anticipatory
bail, is also- as noticed earlier, and in several previous decisions, a “direction” under
this Section 438 “that in the event of such arrest” the applicant be released on bail.
Therefore, when an accused in fact is granted bail, and the conditions outlined in
Section 438 (2) are included as part of the direction “to release” him in the event of
arrest, all the necessary conditions which he is obliged to follow exist. Section 438 (3)
outlines the steps to be taken, in the event of arrest of one who has been granted relief
under Section 438 (1). In the event of non-compliance with any or all conditions,
imposed by the court, the concerned agency or the police, a direction can be sought
from the court under Section 439 (2).
72. The view that this court expresses about the prosecution’s option to apply for a
direction to arrest the accused, finds support in Pradeep Ram (supra) where this court
held as follows:
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“21. Both Sections 437 (5) and 439 (2) empowers the Court to arrest an
accused and commit him to custody, who has been released on bail under
Chapter XXXIII. There may be numerous grounds for exercise of power
under 437 (5) and 439 (2). The principles and grounds for cancelling a bail
are well settled, but in the present case, we are concerned only with one
aspect of the matter, i.e., a case where after accused has been granted the
bail, new and serious offences are added in the case. A person against
whom serious offences have been added, who is already on bail can very
well be directed to be arrested and committed to custody by the Court in
exercise of power under 437 (5) and 439 (2). Cancelling the bail granted to
an accused and directing him to arrest and taken into custody can be one
course of the action, which can be adopted while exercising power
under 437 (5) and 439 (2), but there may be cases where without cancelling
the bail granted to an accused, on relevant consideration, Court can direct
the accused to be arrested and committed to custody. The addition of
serious offences is one of such circumstances, under which the Court can
direct the accused to be arrested and committed to custody despite the bail
having been granted with regard to the offences with which he was charged
at the time when bail was considered and granted.
25. We may have again to look into provisions of Sections 437 (5) and 439
(2) of Cr.P.C. Sub-section (5) of Sections 437 of Cr.P.C uses expression ‘if it
considers it necessary so to do, direct that such person be arrested and commit
him to custody’. Similarly, sub-section (2) of Section 439 of Cr.P.C. provides:
‘may direct that any person who has been released on bail under this Chapter
be arrested and commit him to custody’. A plain reading of the aforesaid
provisions indicates that provision does not mandatorily provide that the Court
before directing arrest of such accused who has already been granted bail
must necessary cancel his earlier bail. A discretion has been given to the
Court to pass such orders to direct for such person be arrested and commit
him to the custody which direction may be with an order for cancellation of
earlier bail or permission to arrest such accused due to addition of graver and
non- cognizable offences. Two Judge Bench judgment in Mithabhai Pashabhai
Patel (supra) uses the word ‘ordinarily’ in paragraph 18 of the judgment
which cannot be read as that mandatorily bail earlier granted to the accused
has to be cancelled before Investigating Officer to arrest him due to addition
of graver and non-cognizable offences.
27. Relying on the above said order, learned counsel for the appellant
submits that respondent State ought to get first the order dated 10.03.2016
granting bail to appellant cancelled before seeking custody of the
appellant. It may be true that by mere addition of an offence in a criminal
115
case, in which accused is bailed out, investigating authorities itself may not
proceed to arrest the accused and need to obtain an order from the Court,
which has released the accused on the bail. It is also open for the accused,
who is already on bail and with regard to whom serious offences have been
added to apply for bail in respect of new offences added and the Court after
applying the mind may either refuse the bail or grant the bail with regard to
new offences. In a case, bail application of the accused for newly added
offences is rejected, the accused can very well be arrested. In all cases,
where accused is bailed out under orders of the Court and new offences are
added including offences of serious nature, it is not necessary that in all
cases earlier bail should be cancelled by the Court before granting
permission to arrest an accused on the basis of new offences. The power
under Sections 437 (5) and 439 (2) are wide powers granted to the court by
the Legislature under which Court can permit an accused to be arrested
and commit him to custody without even cancelling the bail with regard to
earlier offences. Sections 437 (5) and 439 (2) cannot be read into restricted
manner that order for arresting the accused and commit him to custody can
only be passed by the Court after cancelling the earlier bail.
28. Coming back to the present case, the appellant was already into jail
custody with regard to another case and the investigating agency applied
before Special Judge, NIA Court to grant production warrant to produce
the accused before the Court. The Special Judge having accepted the
prayer of grant of production warrant, the accused was produced before the
Court on 26.06.2018 and remanded to custody. Thus, in the present case,
production of the accused was with the permission of the Court. Thus, the
present is not a case where investigating agency itself has taken into
custody the appellant after addition of new offences rather accused was
produced in the Court in pursuance of production warrant obtained from
the Court by the investigating agency. We, thus do not find any error in the
procedure which was adopted by the Special Judge, NIA Court with regard
to production of appellant before the Court. In the facts of the present case,
it was not necessary for the Special Judge to pass an order cancelling the
bail dated 10.03.2016 granted to the appellant before permitting the
accused appellant to be produced before it or remanding him to the judicial
custody.
(i) The accused can surrender and apply for bail for newly added
cognizable and non-bailable offences. In event of refusal of bail, the
accused can certainly be arrested.
(ii) The investigating agency can seek order from the court under Sections
437 (5) or 439 (2) for arrest of the accused and his custody.
116
(iii) The Court, in exercise of power under Sections 437 (5) or 439 (2) of
Cr.PC., can direct for taking into custody the accused who has already been
granted bail after cancellation of his bail. The Court in exercise of power
under Sections 437 (5) as well as 439 (2) can direct the person who has
already been granted bail to be arrested and commit him to custody
on addition of graver and non-cognizable offences which may not be
necessary always with order of cancelling of earlier bail.
(iv) In a case where an accused has already been granted bail, the
investigating authority on addition of an offence or offences may not
proceed to arrest the accused, but for arresting the accused on such
addition of offence or offences it need to obtain an order to arrest the
accused from the Court which had granted the bail.”
73. Earlier, in the decision reported as Dolat Ram v State of Haryana44 this court
had observed that
“25.6. It is a settled legal position that the court which grants the bail also
has the power to cancel it. The discretion of grant or cancellation of bail
can be exercised either at the instance of the accused, the Public
Prosecutor or the complainant, on finding new material or circumstances at
any point of time.
25.7. In pursuance of the order of the Court of Session or the High Court,
once the accused is released on anticipatory bail by the trial court, then it
would be unreasonable to compel the accused to surrender before the trial
court and again apply for regular bail.
25.8. Discretion vested in the court in all matters should be exercised with
care and circumspection depending upon the facts and circumstances
justifying its exercise. Similarly, the discretion vested with the court under
Section 438 CrPC should also be exercised with caution and prudence. It is
44
1995 (1) SCC 349
45
2009 (10) SCC 652
46
2016 (1) SCC 152
117
unnecessary to travel beyond it and subject the wide power and discretion
conferred by the legislature to a rigorous code of self-imposed limitations.
25.9. No inflexible guidelines or straitjacket formula can be provided for
grant or refusal of the anticipatory bail because all circumstances and
situations of future cannot be clearly visualised for the grant or refusal of
anticipatory bail. In consonance with legislative intention, the grant or
refusal of anticipatory bail should necessarily depend on the facts and
circumstances of each case.”
76. Therefore, unless circumstances to the contrary: in the form of behaviour of the
accused suggestive of his fleeing from justice, or evading the authority or jurisdiction
47
2016 (1) SCC 146
48
2018 (8) SCC 475
49
2003 (1) SCC 236
50
2012 (13) SCC 720
51
(2018) 16 SCC 511
118
of the court, or his intimidating witnesses, or trying to intimidate them, or violate any
condition imposed while granting anticipatory bail, the law does not require the
person to surrender to the court upon summons for trial being served on him. Subject
to compliance with the conditions imposed, the anticipatory bail given to a person, can
continue till end of the trial. This answers question No. 2 referred to the present
Bench.
Conclusions
(1) Regarding question No. 1, it is held that the protection granted under
Section 438 Cr. PC should not always or ordinarily be limited to a fixed period;
it should inure in favour of the accused without any restriction as to time. Usual
or standard conditions under Section 437 (3) read with Section 438 (2) should
be imposed; if there are peculiar features in regard to any crime or offence
(such as seriousness or gravity etc.), it is open to the court to impose any
appropriate condition (including fixed nature of relief, or its being tied to an
event or time bound) etc.
(2) The second question referred to this court is answered, by holding that the
life of an anticipatory bail does not end generally at the time and stage when
the accused is summoned by the court, or after framing charges, but can also
continue till the end of the trial. However, if there are any special or peculiar
features necessitating the court to limit the tenure of anticipatory bail, it is open
for it to do so.
78. Having regard to the above discussion, it is clarified that the court should keep
the following points as guiding principles, in dealing with applications under Section
438, Cr. PC:
119
contain clear and essential facts relating to the offence, and why the
applicant reasonably apprehends his or her arrest, as well as his version of
the facts. These are important for the court which considering the
application, to extent and reasonableness of the threat or apprehension, its
gravity or seriousness and the appropriateness of any condition that may
have to be imposed. It is not a necessary condition that an application
should be moved only after an FIR is filed; it can be moved earlier, so long
as the facts are clear and there is reasonable basis for apprehending arrest.
(b) The court, before which an application under Section 438, is filed,
depending on the seriousness of the threat (of arrest) as a measure of
caution, may issue notice to the public prosecutor and obtain facts, even
while granting limited interim anticipatory bail.
(c) Section 438 Cr. PC does not compel or oblige courts to impose conditions
limiting relief in terms of time, or upon filing of FIR, or recording of
statement of any witness, by the police, during investigation or inquiry, etc.
While weighing and considering an application (for grant of anticipatory
bail) the court has to consider the nature of the offence, the role of the
person, the likelihood of his influencing the course of investigation, or
tampering with evidence (including intimidating witnesses), likelihood of
fleeing justice (such as leaving the country), etc. The courts would be
justified – and ought to impose conditions spelt out in Section 437 (3), Cr.
PC [by virtue of Section 438 (2)]. The necessity to impose other restrictive
conditions, would have to be weighed on a case by case basis, and
depending upon the materials produced by the state or the investigating
agency. Such special or other restrictive conditions may be imposed if the
case or cases warrant, but should not be imposed in a routine manner, in all
cases. Likewise, conditions which limit the grant of anticipatory bail may
be granted, if they are required in the facts of any case or cases; however,
such limiting conditions may not be invariably imposed.
120
(d) Courts ought to be generally guided by the considerations such nature
and gravity of the offences, the role attributed to the applicant, and the facts
of the case, while assessing whether to grant anticipatory bail, or refusing it.
Whether to grant or not is a matter of discretion; equally whether, and if so,
what kind of special conditions are to be imposed (or not imposed) are
dependent on facts of the case, and subject to the discretion of the court.
(e) Anticipatory bail granted can, depending on the conduct and behavior of
the accused, continue after filing of the charge sheet till end of trial. Also
orders of anticipatory bail should not be “blanket” in the sense that it should
not enable the accused to commit further offences and claim relief. It should
be confined to the offence or incident, for which apprehension of arrest is
sought, in relation to a specific incident. It cannot operate in respect of a
future incident that involves commission of an offence.
(f) Orders of anticipatory bail do not in any manner limit or restrict the rights
or duties of the police or investigating agency, to investigate into the
charges against the person who seeks and is granted pre-arrest bail.
121
(h) It is open to the police or the investigating agency to move the court
concerned, which granted anticipatory bail, in the first instance, for a
direction under Section 439 (2) to arrest the accused, in the event of
violation of any term, such as absconding, non-cooperating during
investigation, evasion, intimidation or inducement to witnesses with a view
to influence outcome of the investigation or trial, etc. The court – in this
context is the court which grants anticipatory bail, in the first instance,
according to prevailing authorities.
(i) The correctness of an order granting bail, can be considered by the appellate
or superior court at the behest of the state or investigating agency, and set
aside on the ground that the court granting it did not consider material facts
or crucial circumstances. (See Prakash Kadam & Etc. Etc vs Ramprasad
Vishwanath Gupta & Anr52; Jai Prakash Singh (supra) State through C.B.I.
vs. Amarmani Tripathi53 ). This does not amount to “cancellation” in terms
of Section 439 (2), Cr. PC.
(j) The judgment in Mhetre (and other similar decisions) restrictive conditions
cannot be imposed at all, at the time of granting anticipatory bail are hereby
overruled. Likewise, the decision in Salauddin and subsequent decisions
(including K.L. Verma, Nirmal Jeet Kaur) which state that such restrictive
conditions, or terms limiting the grant of anticipatory bail, to a period of
time are hereby overruled.
79. In conclusion, it would be useful to remind oneself that the rights which the
citizens cherish deeply, are fundamental- it is not the restrictions that are fundamental.
Joseph Story, the great jurist and US Supreme Court judge, remarked that “personal
security and private property rest entirely upon the wisdom, the stability, and the
integrity of the courts of justice."
52
(2011) 6 SCC 189
53
(2005) 8 SCC 21
122
80. The history of our republic – and indeed, the freedom movement has shown
how the likelihood of arbitrary arrest and indefinite detention and the lack of
safeguards played an important role in rallying the people to demand independence.
Witness the Rowlatt Act, the nationwide protests against it, the Jallianwalla Bagh
massacre and several other incidents, where the general public were exercising their
right to protest but were brutally suppressed and eventually jailed for long. The
specter of arbitrary and heavy-handed arrests: too often, to harass and humiliate
citizens, and oftentimes, at the interest of powerful individuals (and not to further any
meaningful investigation into offences) led to the enactment of Section 438. Despite
several Law commission reports and recommendations of several committees and
commissions, arbitrary and groundless arrests continue as a pervasive phenomenon.
Parliament has not thought it appropriate to curtail the power or discretion of the
courts, in granting pre-arrest or anticipatory bail, especially regarding the duration, or
till charge sheet is filed, or in serious crimes. Therefore, it would not be in the larger
interests of society if the court, by judicial interpretation, limits the exercise of that
power: the danger of such an exercise would be that in fractions, little by little, the
discretion, advisedly kept wide, would shrink to a very narrow and unrecognizably
tiny portion, thus frustrating the objective behind the provision, which has stood the
test of time, these 46 years.
.............................................J.
[S. RAVINDRA BHAT]
New Delhi,
January 29, 2020.
123
SPECIAL LEAVE PETITION (CRIMINAL) NO (s). 7281-7282 OF 2017
VERSUS
______
We have seen the drafts of Justice M.R. Shah and Justice S. Ravindra
Bhat and are in agreement with them. Since there is no difference of opinion
between the two, we are in agreement with the reasoning of Justice M.R. Shah
and Justice S. Ravindra Bhat that the conclusions in Shri Gurbaksh Singh
Sibbia and others v. State of Punjab 1980 (2) SCC 565 needs reiteration and
further that the restrictive manner in which Section 438 of the Cr.PC has been
SCC 667 is incorrect. Therefore, we agree that Salauddin (supra) and other
2011 (1) SCC 694, i.e. that no conditions can be imposed while granting an
order of anticipatory bail, is incorrect. Mhetre (supra) to that extent and other
124
In view of the said conclusions, we are in agreement with the answers to
.............................................J.
[ARUN MISHRA]
.............................................J.
[INDIRA BANERJEE]
.............................................J.
[VINEET SARAN]
New Delhi;
January 29, 2020.
125
SPECIAL LEAVE PETITION (CRIMINAL) NO (s). 72817282 OF
2017
VERSUS
______
FINAL CONCLUSIONS:
Indira Banerjee and Justice Vineet Saran agreeing with them, the
(1) Regarding Question No. 1, this court holds that the protection
conditions under Section 437 (3) read with Section 438 (2)
126
appropriate condition (including fixed nature of relief, or its
not end normally at the time and stage when the accused is
continue till the end of the trial. Again, if there are any special or
54
1980 (2) SCC 565
127
side of the story. These are essential for the court which
long as the facts are clear and there is reasonable basis for
apprehending arrest.
consider the nature of the offence, the role of the person, the
128
The courts would be justified – and ought to impose
invariably imposed.
129
(5) Anticipatory bail granted can, depending on the conduct and
130
accused to separately surrender and seek regular bail. Sibbia
(supra) had observed that “if and when the occasion arises, it
(10) The court referred to in para (9) above is the court which
prevailing authorities.
131
crucial circumstances. (See Prakash Kadam & Etc. Etc vs
Cr. PC.
Anr59; Sunita Devi v. State of Bihar & Anr 60; Adri Dharan Das v.
55
(2011) 6 SCC 189
56
(2005) 8 SCC 21
57
2011 (1) SCC 694
58
(1996 (1) SCC 667)
59
1998 (9) SCC 348
60
2005 (1) SCC 608
61
2005 (4) SCC 303
62
2004 (7) SCC 558
63
2010 (1) SCC 679
132
the State of Punjab64 and Naresh Kumar Yadav v Ravindra
hereby overruled.
.............................................J.
[ARUN MISHRA]
.............................................J.
[INDIRA BANERJEE]
.............................................J.
[VINEET SARAN]
.............................................J.
[M.R. SHAH]
.............................................J.
[S. RAVINDRA BHAT]
New Delhi;
January 29, 2020..
64
2018 SCC Online (SC 415
65
2008 (1) SCC 632
133