landmark Five bench judgement on anticipatory bail : Supreme Court 1980

PETITIONER:
GURBAKSH SINGH SIBBIA ETC.

Vs.

RESPONDENT:
STATE OF PUNJAB

DATE OF JUDGMENT09/04/1980

BENCH:
CHANDRACHUD, Y.V. ((CJ)
BENCH:
CHANDRACHUD, Y.V. ((CJ)
BHAGWATI, P.N.
UNTWALIA, N.L.
PATHAK, R.S.
REDDY, O. CHINNAPPA (J)

CITATION:
1980 AIR 1632 1980 SCR (3) 383
1980 SCC (2) 565
CITATOR INFO :
R 1982 SC 149 (259)
E&R 1985 SC 969 (6,8,12)
ACT:
Bail-Anticipatory Bail-Section 438 of the Code of
Criminal Procedure Code, 1973 (Act 2 of 1974), Scope of-
Judicial balancing of personal liberty and the
investigational powers of the Police, explained.

HEADNOTE:
The appellant herein, Sri Gurbaksh Singh Sibbia was a
Minister of Irrigation and Power in the Congress Ministry of
the Government of Punjab. Grave allegations of political
corruption were made against him and others whereupon
applications were filed in the High Court of Punjab and
Haryana under section 438 of the Criminal Procedure Code,
praying that the appellants be directed to be released on
bail, in the event of their arrest on the aforesaid charges.
Considering the importance of the matter, a learned single
Judge referred the applications to a Full Bench, which by
its judgment dated September, 13, 1977 dismissed them, after
summarising, what according to it is the true legal
position, of s. 438 of the Code of Criminal Procedure, 1973
(Act 2 of 1974) thus:
(1) The power under Section 438, Criminal
Procedure Code, is of an extra-ordinary
character and must be exercised sparingly in
exceptional cases only.
(2) Neither Section 438 nor any other provision
of the Code authorises the grant of blanket
anticipatory bail for offences not yet
committed or with regard to accusations not
so far levelled.
(3) The said power is not unguided or uncanalised
but all the limitations imposed in the
preceding Section 437, are implicit therein
and must be read into Section 438.
(4) 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.
(5) Where a legitimate case for the remand of the
offender to the police custody under Section
167(2) can be made out by the investigating
agency or a reasonable claim to secure
incriminating material from 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.
(6) The discretion under Section 438 cannot be
exercised with regard to offences punishable
with death or imprisonment for life unless
the Court at that very stage is satisfied
that such a charge appears to be false or
groundless.
384
(7) The larger interest of the public and State
demand that in serious cases like economic
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.
The argument that the appellants were men of substance and
position who were hardly likely to abscond and would be
prepared willingly to face trial was rejected by the Full
Bench with the observation that to accord differential
treatment to the appellants on account of their status will
amount to negation of the concept of equality before the law
and that it could hardly be contended that every man of
status, who was intended to be charged with serious crimes
including the one under section 409 was punishable with life
imprisonment, “was entitled to knock at the door of the
Court for anticipatory bail”. The possession of high status,
according to the Full Bench, is not only an irrelevant
consideration for granting anticipatory bail, but is, if
anything, an aggravating circumstance. Hence the appeals by
special leave.
The appellants contended: (a) The power conferred by
section 438 to grant anticipatory bail is “not limited to
the contigencies” summarised by the High Court; (b) The
power to grant anticipatory bail ought to be left to the
discretion of the Court concerned, depending on the facts
and circumstances of each particular case; (c) 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 imposed by the legislature in the terms of
that section (d) Section 438 is a procedural provision which
is concerned with the personal liberty of an individual who
has not been convicted of the offence in respect of which he
seeks bail and who must be presumed to be innocent. The
validity of that section must accordingly be examined by the
test of fairness and which is implicit in Article 21. If the
legislature itself were to impose an unreasonable
restriction could have been struck down as being violative
of Article 21. Therefore, while determining the scope of
section 438, the Court should not impose any unfair or
unreasonable limitation on the individual’s right to obtain
an order of anticipatory bail. Imposition of an unfair or
unreasonable limitation would be violative of Article 21
irrespective of whether it is imposed by legislation or by
judicial decision.
Allowing the appeals in part, the Court,
^
HELD: 1. The society has a vital stake in both of these
interests namely, personal liberty and the investigational
power of the police, though their relative importance at any
given time depends upon the complexion and restraints of
political conditions. The Court’s task is how best to
balance these interests while determining the scope of
section 438 of the Code of Criminal Procedure, 1973. [393 C-
D]
2. The High Court and the Court of Session should be
left to exercise their jurisdiction under section 438 by a
wise and careful use of their discretion
385
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. [417 B-D]
3. 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
individual’s liberty; it is neither a passport to the
commission of crimes nor a shield against any and all kinds
of accusation, likely or unlikely. [417 E-H, 418 A]
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.
[418 A-B]
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 F.I.R. is
not yet filed. [418 B-C]
Fourthly, anticipatory bail can be granted even after
an F.I.R. is filed, so long as the applicant has not been
arrested. [418 C]
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, in so far 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. [418 C-E]
386
4. However, a “blanket order” of anticipatory bail
should not generally be passed. This flows from the very
language of the section which requires the appellant 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 which ever 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 bad. 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. [418 E-H, 419 A]
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. [419 A-C]
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
the commits, say, a murder in the presence of the public.
Such an order can then become a charter of lawlessness and
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. [419 C-E]
5. An order of bail can be passed under section 438(1)
of the Code without notice to the Public Prosecutor. 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. [419 E-F]
6. Equally the operation of an order passed under
section 438(1) need not necessarily be limited in point of
time. 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 F.I.R. 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 F.I.R.
387
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. [419 F-H]
7. Bail is basically release from restraint, more
particularly release from the custody of the police. The act
of arrest directly affects freedom of movement of the person
arrested by the police, and speaking generally, an order of
bail gives back to the accused that freedom on condition
that he will appear to take his trial. Personal recognizance
suretyship bonds and such other modalities are the means by
which an assurance is secured from the accused that though
he has been released on bail, he will present himself as the
trial of offence or offences of which he is charged and for
which he was arrested. [397 E-G]
The distinction between an ordinary order of bail and
an order of anticipatory bail is that whereas the former is
granted after arrest and therefore means release from the
custody of the police, the latter is granted in anticipation
of arrest and is therefore effective at the very moment of
arrest. Police custody is an inevitable concomitant of
arrest for non-bailable offences. An order of anticipatory
bail constitutes, so to say, an insurance against police
custody following upon arrest for offence or offences in
respect of which the order is issued. In other words, unlike
a post-arrest order of bail, it is a pre-arrest legal
process which directs that if the person in whose favour it
is issued is thereafter arrested on the accusation in
respect of which the direction is issued, he shall be
released on bail. Section 46(1) of the Code of Criminal
Procedure which deals with how arrests are to be made,
provides that in making the arrest the police officer or
other person making the arrest “shall actually touch or
confine the body of the person to be arrested, unless there
be a submission to the custody by word or action”. A
direction under section 438 is intended to confer
conditional immunity from this ‘touch’ or confinement. [397
G-H. 398 A-B]
8. No one can accuse the police of possessing a healing
touch nor indeed does anyone have misgivings in regard to
constraints consequent upon confinement in police custody.
But, society has come to accept and acquiesce in all that
follows upon a police arrest with a certain amount of
sangfroid, in so far as the ordinary rut of criminal
investigation is concerned. It is the normal day-to-day
business of the police to investigate into charges brought
before them and, broadly and generally, they have nothing to
gain, not favours at any rate, by subjecting ordinary
criminal to needless harassment. But the crimes, the
criminals and even the complaints can occasionally possess
extraordinary features. When the even flow of life becomes
turbid, the police can be called upon to inquire into
charges arising out of political antagonism. The powerful
processes of criminal law can then be perverted for
achieving extraneous ends. Attendant upon such
investigations, when the police are not free agents within
their sphere of duty, is a great amount of inconvenience,
harassment and humiliation. That can even take the form of
the parading of a respectable person in hand-cuffs,
apparently on way to a court of justice. The foul deed is
done when an adversary is exposed to social ridicule and
obloquy, no matter when and whether a conviction is secured
or is at all possible. It is in order to meet such
situations, though not limited to these contingencies, that
the power to grant anticipatory bail was introduced into the
Code of 1973. [398 C-F]
9. Clause (1) of Section 438 is couched in terms, broad
and unqualified. By any known canon of construction, words
of width and amplitude ought not
388
generally to be cut down so as to read into the language of
the statute restraints and conditions which the legislature
itself did not think it proper or necessary to impose. This
is especially true when the statutory provision which falls
for consideration is designed to secure a valuable right
like the right to personal freedom and involves the
application of a presumption as salutary and deep grained in
our Criminal Jurisprudence as the presumption of innocence.
[401 A-C]
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. Sub-section (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 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, in so far as one may, and
to give full play to the presumption that he is innocent. In
fact, the stage at which anticipatory bail is generally
sought brings about its striking dissimilarity with the
situation in which a person who is arrested for the
commission of a non-bailable offences 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. [404 A-G]
10. The amplitude of judicial discretion which is given
to the High Court and the Court of Sessions, to impose such
conditions as they may think fit while granting anticipatory
bail, should not be cut down, by a process of construction,
by reading into the statute conditions which are not to be
found therein like those evolved by the High Court. 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. [405 B-D]
389
Generalisations 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 order 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. [405 D-G]
Hyman and Anr. v. Rose, 1912 A.C. 623; referred to
11. Judges have to decide cases as they come before
them, mindful of the need to keep passions and prejudices
out of their decisions. And it will be strange if, by
employing judicial artifices and techniques, this Court cuts
down the discretion so wisely conferred upon the Courts, by
devising a formula which will confine the power to grant
anticipatory bail within a strait-jacket. While laying down
cast-iron rules in a matter like granting anticipatory bail,
as the High Court has done, it is apt to be overlooked that
even Judges can have but an imperfect awareness of the needs
of new situations. Life is never static and every situation
has to be assessed in the context of emerging concerns as
and when it arises. Therefore, even if this Court were to
frame a ‘Code for the grant of anticipatory bail’, which
really is the business of the legislature, it can at best
furnish broad guidelines and cannot compel blind adherence.
In which case to grant bail and in which to refuse it is, in
the very nature of things, a matter of discretion. But apart
from the fact that the question is inherently of a kind
which calls for the use of discretion from case to case, the
legislature has, in terms express, relegated the decision of
that question to the discretion of the Court, by providing
that it may grant bail “if it thinks fit”. The concern the
Courts generally is to preserve their discretion without
meaning to abuse it. It will be strange if the Court
exhibits concern to stultify the discretion conferred upon
the Courts by law. [406 D-H]
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. [407 F-G]
12. It is true that the functions of judiciary and the
police are in a sense complementary and not overlapping. 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 co-operate 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
390
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. [409 D, 410 A-D]
King Emperor v. Khwaja Nazir Ahmed, 71 I.A., 203, State
of U.P. v. Deoman Upadhyaya, [1961] 1 S.C.R. p. 14 @ 26;
referred to.
13. In Balchand Jain v. State of Madhya Pradesh, [1977]
2 SCR 52, this Court was considering whether the provisions
of Section 438 relating to anticipatory bail stand overruled
or repealed by virtue of Rule 184 of the Defence and
Internal Security of India Rules, 1971 or whether both the
provisions can by rule of harmonious interpretion, exist
side by side. It was in that context that it was observed
that “As section 438 immediately follows Section 437 which
is the main provision for bail in respect of non-bailable
offences, it is manifest that the conditions imposed by s.
437(1) are implicitly contained in Section 438 of the Code”.
These observations regarding the nature of the power
conferred by section 438 and regarding the question whether
the conditions mentioned in Section 437 should be read into
section 438 cannot, therefore be treated as the ratio of the
decision. [413 C-D, E]
The power conferred by section 438 is of an “extra
ordinary” character only in the sense that it is not
ordinarily resorted to like the power conferred by sections
437 and 439. [413 E-F]
Bal Chand Jain v. State of M.P., [1977] 2 S.C.R. 52,
distinguished.
14. 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. [413 F-H, 414 A]
Maneka Gandhi v. Union of India, [1978] 1 S.C.C. 248;
applied.
15. In regard to anticipatory bail, if the proposed
accusation appears to stem not from motives of furthering
the ends of justice but from some ulterior inotive, the
object being to injure and humiliate the applicant by having
him arrested a direction for the release of the applicant on
bail in the event of his arrest would generally, be made. On
the other hand, if it appears likely considering the
antecedents of the applicant, that taking advantage of the
order of anticipatory bail he will flee from justice, such
an order would not be made. But the converse of these
propositions is not necessarily true. That is to say it
cannot be laid down as an inexorable rule that anticipatory
bail cannot be granted unless the proposed accusation
appears to be actuated by mala fides;
391
and, equally, that anticipatory bail must be granted if
there is no fear that the applicant will abscond. There are
several other considerations, too numerous to enumerate the
combined effect of which must weigh with the court while
granting or rejecting anticipatory bail. The 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 applicant’s presence not being
secured at the trial, a reasonable apprehension that
witnesses will be tampered with and “the larger interests of
the public or the state” are some of the considerations
which the court has to keep in mind while deciding an
application for anticipatory bail. [415 G-H, 416 A-C]
State v. Captain Jagjit Singh, [1962] 3 S.C.R. 622,
followed.

JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeals Nos.
335, 336, 337, 338, 339, 346, 347, 350, 351, 352, 365, 366,
367, 383, 396, 397, 398, 399, 406, 415, 416, 417, 418, 419,
420, 430, 431, 438, 439, 440, 447, 448, 449, 463, 473, 474,
477, 498, 506, 508, 512, 511 of 1977, 1, 15, 16, 38, 53, 69,
70 of 1978, 469, 499 of 1977, 40, 41, 81, 82, 98, 109, 130,
141, 142, 145, 149, 153 and 154 of 1978.
AND
Special Leave Petitions (Criminal) Nos. 260, 272, 273,
274, 383, 388 & 479 of 1978.
Appeals by Special leave from the Judgments and Orders
dated 13-9-77, 13-9-77, 13-9-77, 15-9-77, 13-9-77, 21-9-77,
19-9-77, 23-9-77, 23-9-77, 23-9-77, 26-9-77, 26-9-77, 30-9-
77, 7-10-77, 16-9-77 9-9-77, 20-9-77, 5-10-77, 20-10-77, 26-
9-77, 20-10-77, 20-10-77, 19-10-77, 24-10-77, 25-10-77, 14-
9-77, 24-10-77, 2-11-77, 2-11-77, 3-11-77, 2-9-77, 7-9-77,
2-9-77, 9-11-77, 22-11-77, 23-11-77, 24-11-77, 13-12-77, 11-
11-77, 23-11-77, 14-12-77, 13-12-77, 20-12-77, 3-1-78, 4-1-
78, 5-1-78, 16-1-78, 18-1-78, 30-1-78, 25-1-78, 18-11-77,
13-12-77, 10-1-78, 13-1-78, 1-2-78, 1-2-78, 8-2-78, 21-12-
77, 1-3-78, 3-3-78, 3-3-78, 10-3-78, 8-3-78, 20-3-78, 17-3-
78, 15-2-78, 17-2-78, 17-2-78, 24-1-78, 14-3-78, 14-3-78 and
27-3-78 of the Punjab and Haryana High Court in Crl. Misc.
Nos. 3753 M, 3719 M, 3720 M, 3916 M, 3718 M, 3793 M, 3565 M,
3892 M, 3595 M, 3596 M, 4359 M, 3563 M, 3484 M, 4627 M, 3893
M, 3894 M, 3587 M, 4540 M, 4908 M, 3031 M, 4934 M, 4916 M,
4888 M, 4964 M, 4992 M, 3688 M, 4907 M, 5176 M, 5177 M, 5197
M, 3564 M, 3716 M, 3717 M, 5344 M, 5558 M, 5079 M, 5613 M,
5905 M, 5254 M, 5253 M, 5919 M, 5907 M, 6005 M of 1977, 45
M, 68 M, 102 M, 246 M of 1978, 6114 M of 1977, 462 M, 248 M
of 1978, 5240 M, 5892 M of 1977, 19/78, 956/77, 104 M/78,
104 M/78, 605/78, 5995 M/77, 941 M/78, 904 M/78, 1005 M/78,
1137 M/78, 819 M/78, 1260 M/78, 866 M/78
392
& 541 M/78, 4897 M/77, 4758 M/77, 364 M/78, 1167/78, 1168
M/78 and 1381 M/78.
M. C. Bhandare, Gobind Das, K. S. Thapar, Dilip Singh,
Mrs. Sunanda Bhandare, A. N. Karkhanis, Deepak Thapar and
Miss Malini for the Appellants in Crl. A. Nos. 335, 365,
430, 431, 506, 508, 499/77, 150, 141, 142, 153, 154 and for
the Petitioners in SLPs 272-274 of 1978.
Frank Anthony, V. C. Mahajan, O. P. Sharma and R. C.
Bhatia for the Appellants in Crl. A. Nos. 336, 337, 338,
350, 396, 397-399, 473, 474/77 and 1, 15, 16, 17, 69, 70,
81, 82, 98 and 149 and 109 of 1978.
Harjinder Singh for the Appellant in Crl. A. 339 of
1977.
B. S. Bindra, S. M. Ashri and Mrs. Lakshmi Arvind for
the Appellants in Crl. As. Nos. 348, 366, 415, 420, 477,
511, 512, 469/77 and 145 of 1978.
P. R. Mridul, H. K. Puri, Aruneshwar Prasad and Vivek
Sethi for the Appellant in Crl. A No. 346 of 1977.
L. N. Sinha, R. P. Singh, L. R. Singh, Suman Kapoor,
Sukumar Sahu and M. C. Bhandare, P. P. Singh and R. K. Jain
for the Appellants in Crl. A. Nos. 351, 352, 406, 438-40,
463/77.
S. K. Jain for the Appellant in Crl. A. No. 53/78.
V. M. Tarkunde, M. M. L. Srivastava, R. Satish and E.
C. Agrawala for the Appellant in Crl. A. Nos. 367/77 and SLP
383/78.
V. C. Mahajan, Harbhagwan Singh, S. K. Mehta, K. R.
Nagaraja and P. N. Puri for the Appellant in Crl. A. Nos.
383/78 and 498/77.
K. K. Mohan for the Petitioner in SLP 260/78.
A. K. Sen and Rathin Dass for the Appellant in Crl. A.
Nos. 40, 41/78.
M. M. L. Srivastava for the Petitioner in SLP 388/78.
L. M. Singhvi and N. S. Das Behl for the Appellants in
Crl. A. No. 38/78 and for the Petitioner in SLP 479/78.
Soli. J. Sorabjee, Addl. Sol. Genl. Bishamber Lal
Khanna, Hardev Singh, R. S. Sodhi and B. B. Singh for the
Appellants in Crl. As. Nos. 477-449/77 and respondents in
Crl. A. Nos. 335-339,347,350, 352,366,367,388,396-398,406,
415-420,438-440,463,473,474,477, 498, 511/77, 1, 15-17/78,
469, 510/77, 109/78 and for the Petitioners in SLP Nos.
388/78, Crl. A. No. 98/78 & SLP 260/78.
393
Soli. J. Sorabjee Addl. Sol. Genl., Thakur Naubat Singh
Adv. Genl. Haryana, S. N. Anand and R. N. Sachthey for the
Respondents, in Crl. A. Nos. 365, 430, & 431/77, 508, 499/78
and 38, 141 and 142/78.
M. M. Kshatriya and G. S. Chatterjee for Respondents in
Crl. A. Nos. 40 and 41 of 1978.
M. M. Kshatriya and G. S. Chatterjee for Respondents in
Crl. A. 346/77.
J. K. Gupta, B. R. Agarwala and Janendra Lal for the
Vice-Chancellor, Punjab University in Crl. A. No. 346/77.
The Judgment of the Court was delivered by
CHANDRACHUD, C.J.-These appeals by Special Leave
involve a question of great public importance bearing, at
once, on personal liberty and the investigational powers of
the police. The society has a vital stake in both of these
interests, though their relative importance at any given
time depends upon the complexion and restraints of political
conditions. Our task in these appeals in how best to balance
these interests while determining the scope of Section 438
of the Code of Criminal Procedure, 1973 (Act No. 2 of 1974).
Section 438 provides for the issuance of direction for
the grant of bail to a person who apprehends arrest. It
reads thus:
“438. (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 bail.
(2) When the High Court or the Court of Session
makes a direction under sub-section (1), it may include
such conditions in such directions in the light of the
facts of the particular case, as it may think fit,
including-
(i) a condition that the person shall make
himself available for interrogation by a
police officer as and when required;
(ii) a condition that the person shall not,
directly or indirectly, make any inducement,
threat or promise to any person acquainted
with the facts of the case so
394
as to dissuade him from disclosing such facts
to the Court or to any police officer;
(iii) a condition that the person shall not leave
India without the previous permission of the
Court;
(iv) such other condition as may be imposed under
sub-section (3) of section 437, as if the
bail were granted under that section.
(3) If such person is thereafter arrested without
warrant by an officer in charge of a police station on
such accusation, and is prepared either at the time of
arrest or at any time while in the 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).”
Criminal Appeal No. 335 of 1975 which is the first of
the many appeals before us, arises out of a judgment dated
September 13, 1977 of a Full Bench of the High Court of
Punjab and Haryana. The appellant herein, Shri Gurbaksh
Singh Sibbia, was a Minister of Irrigation and Power in the
Congress Ministry of the Government of Punjab. Grave
allegations of political corruption were made against him
and others whereupon, applications were filed in the High
Court of Punjab and Haryana under Section 438, praying that
the appellants be directed to be released on bail, in the
event of their arrest on the aforesaid charges. Considering
the importance of the matter, a learned Single Judge
referred the applications to a Full Bench, which by its
judgment dated September 13, 1977 dismissed them.
The Code of Criminal Procedure, 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 Code of Criminal Procedure 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 out the necessity of
introducing a provision in the Code en-
395
abling the High Court and the Court of Session to grant
“anticipatory 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.
We recommend the acceptance of this suggestion. We
are further of the view that this special power should
be conferred only on the High Court and the Court of
Session, and that the order should take effect at the
time of arrest or thereafter.
In order to settle the details of this suggestion,
the following draft of a new section is placed for
consideration:
“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.
(2) A Magistrate taking cognizance of an offence
against that person shall, while taking steps under
section 204(1), either issue summons or a bailable
warrant as indicated in the direction of the Court
under sub-section (1).
(3) if any person in respect of whom such a
direction is made is arrested without warrant by an
officer in charge of a police station on an accusation
of having com-
396
mitted that offence, and is prepared either at the time
of arrest or at any time while in the custody of such
officer to give bail, such person shall be released on
bail.”
We considered carefully the question of laying
down in the statute certain conditions under which
alone anticipatory bail could be granted. But we found
that it may not be practicable to exhaustively
enumerate those conditions; and moreover, the laying
down of such conditions may be construed as prejudging
(partially at any rate) the whole case. Hence we would
leave it to the discretion of the court and prefer not
to fetter such discretion in the statutory provision
itself. Superior Courts will, undoubtedly, exercise
their discretion properly, and not make any
observations in the order granting anticipatory bail
which will have a tendency to prejudice the fair trial
of the accused.”
The suggestion made by the Law Commission was, in
principle, accepted by the Central Government which
introduced Clause 447 in the Draft Bill of the Code of
Criminal Procedure, 1970 with a view to conferring an
express power on the High Court and the Court of Session to
grant anticipatory bail. That Clause read thus:
“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.
(2) If such person is thereafter arrested without
warrant by an officer in charge of a police station on
such accusation, and is prepared either at the time of
arrest or at any time while in the 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).”
The Law Commission, in paragraph 31 of its 48th Report
(1972), made the following comments on the aforesaid Clause.
“31. The Bill introduces a provision for the grant
of anticipatory bail. This is substantially in
accordance with the recommendation made by the previous
Commission. We
397
agree that this would be a useful addition, though we
must add that it is in very exceptional cases that such
a power should be exercised.
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 Code of
Criminal Procedure, 1973 which we have extracted at the
outset of this judgment.
The facility which Section 438 affords is generally
referred to as ‘anticipatory bail’, an expression which was
used by the Law Commission in its 41st report. Neither the
section nor its marginal note so describes it but, the
expression ‘anticipatory bail’ is a convenient mode of
conveying that it is possible to apply for bail in
anticipation of arrest. Any order of bail can, of course, be
effective only from the time of arrest because, to grant
bail, as stated in Wharton’s Law Lexicon, is to ‘set at
liberty a person arrested or imprisoned, on security being
taken for his appearance’. Thus, bail is basically release
from restraint, more particularly, release from the custody
of the police. The act of arrest directly affects freedom of
movement of the person arrested by the police, and speaking
generally, an order of bail gives back to the accused that
freedom on condition that he will appear to take his trial.
Personal recognisance, suretyship bonds and such other
modalities are the means by which an assurance is secured
from the accused that though he has been released on bail,
he will present himself at the trial of offence or offences
of which he is charged and for which he was arrested. The
distinction between an ordinary order of bail and an order
of anticipatory bail is that whereas the former is granted
after arrest and therefore means release from the custody of
the police, the latter is granted in anticipation of arrest
and is therefore effective at the very moment of arrest.
Police custody is an inevitable concomitant of arrest for
non-bailable offences. An order of anticipatory bail
constitutes, so to say, an insurance against police custody
following upon arrest for offence or offences in respect of
which the order is
398
issued. In other words, unlike a post-arrest order of bail,
it is a pre-arrest legal process which directs that if the
person in whose favour it is issued is thereafter arrested
on the accusation in respect of which the direction is
issued, he shall be released on bail. Section 46(1) of the
Code of Criminal Procedure which deals with how arrests are
to be made, provides that in making the arrest, the police
officer or other person making the arrest “shall actually
touch or confine the body of the person to be arrested,
unless there be a submission to the custody by word or
action”. A direction under section 438 is intended to confer
conditional immunity from this ‘touch’ or confinement.
No one can accuse the police of possessing a healing
touch nor indeed does anyone have misgivings in regard to
constraints consequent upon confinement in police custody.
But, society has come to accept and acquiesce in all that
follows upon a police arrest with a certain amount of
sangfroid, in so far as the ordinary rut of criminal
investigation is concerned. It is the normal day-to-day
business of the police to investigate into charges brought
before them and, broadly and generally, they have nothing to
gain, not favours at any rate, by subjecting ordinary
criminals to needless harassment. But the crimes, the
criminals and even the complainants can occasionally possess
extra-ordinary features. When the even flow of life becomes
turbid, the police can be called upon to inquire into
charges arising out of political antagonism. The powerful
processes of criminal law can then be perverted for
achieving extraneous ends. Attendant upon such
investigations, when the police are not free agents within
their sphere of duty, is a great amount of inconvenience,
harassment and humiliation. That can even take the form of
the parading of a respectable person in handcuffs,
apparently on way to a court of justice. The foul deed is
done when an adversary is exposed to social ridicule and
obloquy, no matter when and whether a conviction is secured
or is at all possible. It is in order to meet such
situations, though not limited to these contingencies, that
the power to grant anticipatory bail was introduced into the
Code of 1973.
Are we right in saying that the power conferred by
section 438 to grant anticipatory bail is “not limited to
these contingencies”? In fact that is one of the main points
of controversy between the parties. Whereas it is argued by
Shri M. C. Bhandare, Shri O. P. Sharma and the other learned
counsel who appear for the appellants that the power to
grant anticipatory bail ought to be left to the discretion
of the court concerned, depending on the facts and
circumstances of each particular case, it is argued by the
learned Additional Solicitor General on behalf of the State
Government that the grant of anticipatory bail should
399
at least be conditional upon the applicant showing that he
is likely to be arrested for an ulterior motive, that is to
say, that the proposed charge or charges are evidently
baseless and are actuated by mala fides. It is argued that
anticipatory bail is an extra-ordinary 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, Criminal Procedure Code, after he is arrested.
Shri V. M. Tarkunde, appearing on behalf of some of the
appellants, while supporting the contentions of the other
appellants, said that since the denial of bail amounts to
deprivation of personal liberty, court should lean against
the imposition of unnecessary restrictions on the scope of
Section 438, when no such restrictions are imposed by the
legislature in the terms of that Section. The learned
counsel added a new dimension to the argument by invoking
Article 21 of the Constitution. He urged that Section 438 is
a procedural provision which is concerned with the personal
liberty of an individual who has not been convicted of the
offence in respect of which he seeks bail and who must
therefore be presumed to be innocent. The validity of that
section must accordingly be examined by the test of fairness
and reasonableness which is implicit in Article 21. If the
legislature itself were to impose an unreasonable
restriction on the grant of anticipatory bail, such a
restriction could have been struck down as being violative
of Article 21. Therefore, while determining the scope of
Section 438, the court should not impose any unfair or
unreasonable limitation on the individual’s right to obtain
an order of anticipatory bail. Imposition of an unfair or
unreasonable limitation, according to the learned counsel,
would be violative of Article 21, irrespective of whether it
is imposed by legislation or by judicial decision.
The Full Bench of the Punjab and Haryana High Court
rejected the appellants’ applications for bail after
summarising, what according to it is the true legal
position, thus:
(1) The power under Section 438, Criminal
Procedure Code, is of an extra-ordinary
character and must be exercised sparingly in
exceptional cases only;
(2) Neither Section 438 nor any other provision
of the Code authorises the grant of blanket
anticipatory bail for offences not yet
committed or with regard to accusations not
so far levelled.
(3) The said power is not unguided or uncanalised
but all the limitations imposed in the
preceding Section
400
437, are implicit therein and must be read
into Section 438.
(4) 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.
(5) Where a legitimate case for the remand of the
offender to the police custody under Section
167 (2) can be made out by the investigating
agency or a reasonable claim to secure
incriminating material from 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.
(6) The discretion under Section 438 cannot be
exercised with regard to offences punishable
with death or imprisonment for life unless
the court at that very stage is satisfied
that such a charge appears to be false or
groundless.
(7) The larger interest of the public and State
demand that in serious cases like economic
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 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.
It was urged before the Full Bench that the appellants were
men of substance and position who were hardly likely to
abscond and would be prepared willingly to face trial. This
argument was rejected with the observation that to accord
differential treatment to the appellants on account of their
status will amount to negation of the concept of equality
before the law and that it could hardly be contended that
every man of status, who was intended to be charged with
serious crimes, including the one under Section 409 which
was punishable with life imprisonment, “was entitled to
knock at the door of the court for anticipatory bail”. The
possession of high status, according to the Full Bench, is
not only an irrelevant consideration for granting
anticipatory bail but is, if anything, an aggravating
circumstance.
We find ourselves unable to accept, in their totality,
the submissions of the learned Additional Solicitor General
or the constraints which the
401
Full Bench of the High Court has engrafted on the power
conferred by Section 438. Clause (1) of Section 438 is
couched in terms, broad and unqualified. By any known canon
of construction, words of width and amplitude ought not
generally to be cut down so as to read into the language of
the statute restraints and conditions which the legislature
itself did not think it proper or necessary to impose. This
is especially true when the statutory provisions which falls
for consideration is designed to secure a valuable right
like the right to personal freedom and involves the
application of a presumption as salutary and deep-grained in
our Criminal Jurisprudence as the presumption of innocence.
Though the right to apply for anticipatory bail was
conferred for the first time by Section 438, while enacting
that provision the legislature was not writing on a clean
slate in the sense of taking an unprecedented step, in so
far as the right to apply for bail is concerned. It had
before it two cognate provisions of the Code: Section 437
which deals with the power of courts other than the Court of
Session and the High Court to grant bail in non-bailable
cases and Section 439 which deals with the “special powers”
of the High Court and the Court of Session regarding bail.
The whole of Section 437 is riddled and hedged in by
restrictions on the power of certain courts to grant bail.
That section reads thus :
“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 he 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 :
Provided that the Court may direct that any person
under the age of sixteen years or any woman or any sick
or infirm person accused of such an offence be released
on bail :
Provided further 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.
(2) If it appears to such officer or Court at any
stage of the investigation, inquiry or trial as the
case may be,
402
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, 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 or abetment of, or conspiracy
or attempt to commit, any such offence, is released on
bail under sub-section (1), the Court may impose any
condition which the Court considers necessary-
(a) in order to ensure that such person shall
attend in accordance with the conditions of the bond
executed under this Chapter, or
(b) in order to ensure that such person shall not
commit an offence similar to the offence of which he is
accused or of the commission of which he is suspected,
or
(c) otherwise in the interests of justice.
(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 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 an 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
403
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.”
Section 439 (1) (a) incorporates the conditions
mentioned in Section 437 (3) if the offence in respect of
which the bail is sought is of the nature specified in that
sub-section. Section 439 reads thus :
“439. Special powers of High Court or Court of
Session regarding bail. (1) A High Court or Court of
Session may direct-
(a) That any person accused of an offence and in
custody be released on bail, and if the offence is of
the nature specified in sub-section (3) of section 437,
may impose any condition which it considers necessary
for the purposes mentioned in that sub-section;
(b) that any condition imposed by a Magistrate
when releasing any person on bail be set aside or
modified :
Provided that the High Court or the Court of
Session shall, before granting bail to a person who is
accused of an offence which is triable exclusively by
the Court of Session or which, though not so triable,
is punishable with imprisonment for life, give notice
of the application for bail to the Public Prosecutor
unless it is, for reasons to be recorded in writing, of
opinion that it is not practicable to give notice.
(2) A High Court or Court of Session may direct
that any person who has been released on bail under
this Chapter be arrested and commit him to custody.”
The provisions of Section 437 and 439 furnished a
convenient model for the legislature to copy while enacting
Section 438. If it has not done so and has departed from a
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 paragraph 29.9 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
404
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. Sub-section (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 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 impairement 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,
in so far as one may, and to give full play to the
presumption that he is innocent. In fact, the stage at which
anticipatory bail is 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.
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
405
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
condition 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.
Generalisations 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, Earl Loreburn L. C. said in Hyman and
Anr. v. Rose :
“I desire in the first instance to point out that
the discretion given by the section is very
wide……….. Now it
406
seems to me that when the Act is so express to provide
a wide discretion,…it is not advisable to lay down
any rigid rules for guiding that discretion. I do not
doubt that the rules enunciated by the Master of the
Rolls in the present case are useful maxims in general,
and that in general they reflect the point of view from
which judges would regard an application for relief.
But I think it ought to be distinctly understood that
there may be cases in which any or all of them may be
disregarded. If it were otherwise, the free discretion
given by the statute would be fettered by limitations
which have nowhere been enacted. It is one thing to
decide what is the true meaning of the language
contained in an Act of Parliament. It is quite a
different thing to place conditions upon a free
discretion entrusted by statute to the Court where the
conditions are not based upon statutory enactment at
all. It is not safe, I think, to say that the Court
must and will always insist upon certain things when
the Act does not require them, and the facts of some
unforeseen case may make the Court wish it had kept a
free hand.”
Judges have to decide cases as they come before them,
mindful of the need to keep passions and prejudices out of
their decisions. And it will be strange if, by employing
judicial artifices and techniques, we cut down the
discretion so wisely conferred upon the Courts, by devising
a formula which will confine the power to grant anticipatory
bail within a strait-jacket. While laying down cast-iron
rules in a matter like granting anticipatory bail, as the
High Court has done, it is apt to be overlooked that even
Judges can have but an imperfect awareness of the needs of
new situations. Life is never static and every situation has
to be assessed in the context of emerging concerns as and
when it arises. Therefore, even if we were to frame a ‘Code
for the grant of anticipatory bail’, which really is the
business of the legislature, it can at best furnish broad
guide-lines and cannot compel blind adherence. In which case
to grant bail and in which to refuse it is, in the very
nature of things, a matter of discretion. But apart from the
fact that the question is inherently of a kind which calls
for the use of discretion from case to case, the legislature
has, in terms express, relegated the decision of that
question to the discretion of the court, by providing that
it may grant bail “if it thinks fit”. The concern of the
courts generally is to preserve their discretion without
meaning to abuse it. It will be strange if we exhibit
concern to stultify the discretion conferred upon the Courts
by law.
407
A close look at some of the rules in the eight-point
code formulated by he High Court will show how difficult it
is to apply them in practice. The seventh proposition says :
“The larger interest of the public and State
demand that in serious cases like economic 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.”
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 438 cannot be exercised
in regard to offences punishable with 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
408
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. 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 fits to do so, Section 437(1) does 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 re-writing Section 438 with a
409
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 ancipatory 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.
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 Nasir Ahmed :
“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 561A, Criminal Procedure Code, to 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
410
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 F.I.R. 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 co-operate 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 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 to
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.
It is unnecessary to consider the third proposition of
the High Court in any great details because we have already
indicated that there is no justification for reading into
Section 438 the limitations mentioned in Section 437. The
High Court says that such limitations are implicit in
Section 438 but, with respect, no such implications arise or
can be
411
read into that section. The plenitudes of the section must
be given its full play.
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 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 hall mark of a prudent
exercise of judicial discretion. One ought not to make a
bugbear of the power to grant anticipatory bail.
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
extra-ordinary 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.
412
It remains only to consider the second proposition
formulated by the High Court, which is the only one with
which we are disposed to agree but we will say more about it
a little later.
It will be appropriate at this stage to refer to a
decision of this Court in Balchand Jain v. State of Madhya
Pradesh on which the High Court has leaned heavily in
formulating its propositions. One of us, Bhagwati J. who
spoke for himself and A. C. Gupta, J. observed in that case
that:
“the power of granting ‘anticipatory bail’ is
somewhat extraordinary in character and it is only in
exceptional cases where it appears that a person might
be falsely implicated, or a frivolous case might be
launched against him, or “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” that such power is to be exercised.”
Fazal Ali, J. who delivered a separate judgment of
concurrence also observed that:
“an order for anticipatory bail is an
extraordinary remedy available in special cases”.
and proceeded to say:
“As Section 438 immediately follows s. 437 which
is the main provision for bail in respect of non-
bailable offences, it is manifest that the conditions
imposed by s. 437 (1) are implicitly contained in s.
438 of the Code. Otherwise the result would be that a
person who is accused of murder can get away under s.
438 by obtaining an order for anticipatory bail without
the necessity of proving that there were reasonable
grounds for believing that he was not guilty of offence
punishable with death or imprisonment for life. Such a
course would render the provisions of s. 437 nugatory
and will give a free licence to the accused persons
charged with non-bailable offences to get easy bail by
approaching the Court under s. 438 and by-passing s.
437 of the Code. This, we feel, could never have been
the intention of the Legislature. Section 438 does not
contain unguided or uncanalised powers to pass an order
for anticipatory bail, but such an order being of an
exceptional type can only be passed if,
413
apart from the conditions mentioned in s. 437, there is
a special case made out for passing the order. The
words “for a direction under this section” and “Court
may, if it thinks fit, direct” clearly show that the
Court has to be guided by a large number of
considerations including those mentioned in s. 437 of
the Code.”
While stating his conclusions Fazal Ali, J. reiterated in
conclusion no.3 that “Section 438 of the Code is an
extraordinary remedy and should be resorted to only in
special cases.”
We hold the decision in Balchand Jain (supra) in great
respect but it is necessary to remember that the question as
regards the interpretation of Section 438 did not at all
arise in that case. Fazal Ali, J. has stated in paragraph 3
of his judgment that “the only point” which arose for
consideration before the Court was whether the provisions of
Section 438 relating to anticipatory bail stand overruled
and repealed by virtue of Rule 184 of the Defence and
Internal Security of India Rules, 1971 or whether both the
provisions can, by the rule of harmonious interpretation,
exist side by side. Bhagwati, J. has also stated in his
judgment, after adverting to Section 438 that Rule 184 is
what the Court was concerned with in the appeal. The
observations made in Balchand Jain (supra) regarding the
nature of the power conferred by Section 438 and regarding
the question whether the conditions mentioned in Section 437
should be read into Section 438 cannot therefore be treated
as concluding the points which arise directly for our
consideration. We agree, with respect, that the power
conferred by Section 438 is of an extraordinary character in
the sense indicated above, namely, that it is not ordinarily
resorted to like the power conferred by Sections 437 and
439. We also agree that the power to grant anticipatory bail
should be exercised with due care and circumspection but
beyond that, it is not possible to agree with the
observations made in Balchand Jain (supra) in an altogether
different context on an altogether different point.
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 overgenerous 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 com-
414
pliance with unreasonable restrictions. The beneficient
provision contained in Section 438 must be saved, not
jettisoned. No doubt can linger after the decision in Maneka
Gandhi 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. 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 be found therein.
It is not necessary to refer to decisions which deal
with the right to ordinary bail because that right does not
furnish an exact parallel to the right to anticipatory bail.
It is, however, interesting that as long back as in 1924 it
was held by the High Court of Calcutta in Nagendra v. King
Emperor that the object of bail is to secure the attendance
of the accused at the trial, that the proper test to be
applied in the solution of the question whether bail should
be granted or refused is whether it is probable that the
party will appear to take his trial and that it is
indisputable that bail is not to be withheld as a
punishment. In two other cases which, significantly, are the
‘Meerut Conspiracy cases’ observations are to be found
regarding the right to bail which observe a special mention.
In K. N. Joglekar v. Emperor it was observed, while dealing
with Section 498 which corresponds to the present Section
439 of the Code, that it conferred upon the Sessions Judge
or the High Court wide powers to grant bail which were not
handicapped by the restrictions in the preceding Section 497
which corresponds to the present Section 437. It was
observed by the Court that there was no hard and fast rule
and no inflexible principle governing the exercise of the
discretion conferred by Section 498 and that the only
principle which was established was that the discretion
should be exercised judiciously. In Emperor v. H. L.
Hutchinson it was said that it was very unwise to make an
attempt to lay down any particular rules which will bind the
High Court, having regard to the fact that the legislature
itself left the discretion of the Court unfettered.
According to the High Court, the variety of cases that may
arise from time to time cannot be safely classified and it
is dangerous to make an attempt to classify the cases and to
say that in particular classes a bail may be granted but not
in other classes. It was observed that the principle to be
deduced from the various sections in the Criminal Procedure
415
Code was that grant of bail is the rule and refusal is the
exception. An accused person who enjoys freedom is in a much
better position to look after his case and to properly
defend himself than if he were in custody. As a presumably
innocent person he is therefore entitled to freedom and
every opportunity to look after his own case. A presumably
innocent person must have his freedom to enable him to
establish his innocence.
Coming nearer home, it was observed by Krishna Iyer,
J., in Gudikanti Narasimhulu v. Public Prosecutor, High
Court of Andhra Pradesh that “the issue of bail is one of
liberty, justice, public safety and burden of the public
treasury, all of which insist that a developed jurisprudence
of bail is integral to a socially sensitized judicial
process. After all, personal liberty of an accused or
convict is fundamental, suffering lawful eclipse only in
terms of procedure established by law. The last four words
of Article 21 are the life of that human right.”
In Gurcharan Singh v. State (Delhi Admn.) it was
observed by Goswami, J. who spoke for the Court, that “there
cannot be an inexorable formula in the matter of granting
bail. The facts and circumstances of each case will govern
the exercise of judicial discretion in granting or
cancelling bail.”
In American Jurisprudence (2d, Volume 8, page 806, para
39) it is stated:
“Where the granting of bail lies within the
discretion of the court, the granting or denial is
regulated, to a large extent, by the facts and
circumstances of each particular case. Since the object
of the detention or imprisonment of the accused is to
secure his appearance and submission to the
jurisdiction and the judgment of the court, the primary
inquiry is whether a recognizance or bond would effect
that end.”
It is thus clear that the question whether to grant bail or
not depends for its answer upon a variety of circumstances,
the cumulative effect of which must enter into the judicial
verdict. Any one single circumstance cannot be treated as of
universal validity or as necessarily justifying the grant or
refusal of bail.
In regard to anticipatory bail, if the proposed
accusation appears to stem not from motives of furthering
the ends of justice but from some ulterior motive, the
object being to injure and humiliate the applicant by having
him arrested, a direction for the release of the applicant
on bail in the event of his arrest would generally be made.
On the other
416
hand, if it appears likely, considering the antecedents of
the applicant, that taking advantage of the order of
anticipatory bail he will flee from justice, such an order
would not be made. But the converse of these propositions is
not necessarily true. That is to say, it cannot be laid down
as an inexorable rule that anticipatory bail cannot be
granted unless the proposed accusation appears to be
actuated by mala fides; and, equally, that anticipatory bail
must be granted if there is no fear that the applicant will
abscond. There are several other considerations, too
numerous to enumerate, the combined effect of which must
weigh with the court while granting or rejecting
anticipatory bail. The 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 applicant’s presence not being secured at the trial, a
reasonable apprehension that witnesses will be tampered with
and “the larger interests of the public or the state” are
some of the considerations which the court has to keep in
mind while deciding an application for anticipatory bail.
The relevance of these considerations was pointed out in The
State v. Captain Jagjit Singh, which, though, was a case
under the old Section 498 which corresponds to the present
Section 439 of the Code. It is of paramount consideration to
remember that the freedom of the individual is as necessary
for the survival of the society as it is for the egoistic
purposes of the individual. A person seeking anticipatory
bail is still a free man entitled to the presumption of
innocence. He is willing to submit to restraints on his
freedom, by the acceptance of conditions which the court may
think fit to impose, in consideration of the assurance that
if arrested, he shall be enlarged on bail.
A word of caution may perhaps be necessary in the
evaluation of the consideration whether the applicant is
likely to abscond. There can be no presumption that the
wealthy and the mighty will submit themselves to trial and
that the humble and the poor will run away from the course
of justice, any more than there can be a presumption that
the former are not likely to commit a crime and the latter
are more likely to commit it. In his charge to the grand
jury at Salisbury Assizes, 1899 (to which Krishna Iyer, J.
has referred in Gudikanti), Lord Russel of Killowen said:
” …………. it was the duty of magistrates to
admit accused persons to bail, wherever practicable,
unless there were strong grounds for supposing that
such persons would not appear to take their trial. It
was not the poorer classes who did not appear, for
their circumstances were such as to tie them to the
place where they carried on their work. They had not
the golden wings with which to fly from justice.”
417
This, incidentally, will serve to show how no hard and fast
rules can be laid down in discretionary matters like the
grant or refusal of bail, whether anticipatory or otherwise.
No such rules can be laid down for the simple reason that a
circumstance which, in a given case, turns out to be
conclusive, may have no more than ordinary signification in
another case.
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 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.
This should be the end of the matter, but it is
necessary to clarify a few points which have given rise to
certain misgivings.
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
individual’s liberty; it is neither a passport to
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the commission of crimes nor a shield against any and all
kinds of accusations, likely or unlikely.
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.
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 F.I.R. is
not yet filed.
Fourthly, anticipatory bail can be granted even after
an F.I.R. is filed, so long as the applicant has not been
arrested.
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, in so far 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.
We have said that there is one proposition formulated
by the High Court with which we are inclined to agree. That
is preposition No. (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
419
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.
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.
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 that
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 F.I.R. 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 F.I.R. as
aforesaid. But this need not be followed as an invariable
rule. The normal role should be not to limit the operation
of the order in relation to a period of time.
420
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 F.I.R. 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 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.
The various appeals and Special Leave petitions before
us will stand disposed of in terms of this Judgment. The
judgment of the Full Bench of the Punjab and Haryana High
Court, which was treated as the main case under appeal, is
substantially set aside as indicated during the course of
this Judgment.
S.R. Appeals allowed in part.
421
Judgement