N Criminal Appeal No 324 Of 1985 From the judgment and order dated 77
1984 of the High Court of Rajasthan in Crl
Appln
No 758 of 1983
Sobhag Mal Jain and SK Jain for the Appellant
AN Mulla Surya Kant and B Sharma for the Respondents
The Judgment of the Court was delivered by DESAI J
Special leave granted
Unusual though it may appear to be under a compelling necessity in the interest of justice we would depart from the ordinary response of this Court to matters involving bail
Ordinarily this Court is loathe to interfere with the orders granting or refusing bail but it cannot be an insurmountable obstacle in the way of rectifying an order which tends to disclose miscarriage of justice
An incident occurred on August 23 1983 in which one Bhanwaria son of the present appellant received fatal injuries resulting in his death
An information was lodged with the Police Station Khedapa District Jodhpur Rajasthan State about the occurrence on August 24 1983 around 1130 AM
At that time Bhanwaria was alive and the offence was registered under Sec
307 447 read with Sec 149 under Sec 148 379 and 327 of the Indian Penal Code
When the hospital authority sent the message 784 that Bhawaria the victim of assault who was admitted in the hospital for treatment has succumbed to his injuries the Investigating Officer also added an offence under Sec
30  IPC
Soon thereafter on September 29 1983 the second respondent Chandan Singh so Shri Ranjit Singh  respondent  for short appeared before the learned Sessions Judge Jodhpur and moved an application under Sec
438 Cr P C for granting him anticipatory bail
The public prosecutor appearing for the State opposed the application for grant of anticipatory bail
The learned Judge by his order dated September 30 1983 accepted the application and granted anticipatory bail to the respondent observing that the dispute is with regard to the right to cultivate a certain field from which when deceased Bhanwaria was coming out the respondent fired at him and caused the injuries which proved fatal
The learned Judge further observed that keeping in view some decisions referred to by him he was of the opinion that the application tor anticipatory bail should be granted
The learned Judge then ordered that if the 1 accused is taken into custody by the police he must be released on bail on his furnishing security in the amount of Rs 5000 on condition that he will assist in investigation and will not interfere in the investigation and will not go out of India  The present appellant moved the High Court of Rajasthan questioning the correctness of this order and for cancellation of the anticipatory bail
A learned Single Judge of the High Court negatived the contention that the petitioner had no locus standi to move the High Court for cancellation of anticipatory bail
On merits the learned Judge after referring to several decisions observed that while dealing with an application for cancellation of bail warranting interference with the discretionary order passed by the learned Sessions Judge granting bail the considerations which should weigh with the court were whether 1 the accused would be readily available during the trial 2 he is not likely to abuse the discretion granted his favour by tampering with the prosecution witnesses concluded that the respondent and his father are influential persons and hold important posts in the Panchayat or Zila Parishad furnished no ground for cancelling bail and that it is not necessary to examine whether anticipatory bail ought to have been granted but what must be considered is whether a case tor cancellation of the same is made out
The learned Judge then held that 785 such grounds are not shown to exist and accordingly rejected the application
Hence this appeal by special leave
Relevant considerations governing the court s decision in granting anticipatory bail under Sec
438 are materially different from those when an application for bail by a person who is arrested in the course of investigation as also by a person who is convicted and his 13 appeal is pending before the higher court and bail is sought during the pendency of the appeal
Three situations in which the question of granting or refusing to grant bail would arise materially and substantially differ from each other and the relevant considerations on which the courts would exercise its discretion one way or the other are substantially different from each other
This is necessary to be stated because the learned Judge
in the High Court unfortunately fell into an error in mixing Up all the considerations as if all the three become relevant in the present situation
The decision of the Constitutional Bench in Shri Gurbaksh Singh Sibbia  Ors
vs State of Punjab1 clearly lays down that the distinction between an ordinary order of bail and an order of anticipatory bail is that whereas the former is granted after arrest and there fore 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  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
direction under Sec
438 is intended to confer conditional immunity from the touch as envisaged by Sec 46 1 or confinement
In para 31 Chandrachud CJ clearly demarcated the distinction between the relevant considerations while examining an application for anticipatory bail and an application for bail after arrest in the course of investigation Says the learned Chief Justice that 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 appellant on bail in the event of his arrest  would generally be made
It was observed that it cannot be laid down as an inexorable rule that anticipa 1  786 tory 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  Some of the relevant considerations which govern the discretion noticed therein are 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  caution was voiced that 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 and 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
Having noticed the relevant considerations which should weigh with the court in the matter of granting or refusing to grant anticipatory bail let us first look at the order made by the learned Sessions Judge
The incident in which Bhanwaria was injured with fire arm occurred on August 23 1983 in respect of which the first information report was lodged on August 24 1983 in which it was in clear and unambiguous terms alleged that the respondent was at the relevant time armed with a gun and fired towards Bhanwaria who suffered injuries by gun shot The incident occurred as stated earlier around 400 P M
On August 23 1983 and this information is lodged with the Police Station at a distance of 30 km
from the scene of occurrence on August 24 1983 at 1130 am
Amongst others the offence registered was under Sec
307 IPC ie attempt to commit murder
The first information report thus discloses use of fire arm with which the respondent attempted to commit murder of Bhanwaria
Surprisingly the Investigating Officer had not arrested him till September 29 1983 when he moved an application for anticipatory bail under Sec438 of the Code of Criminal Procedure presumably after coming to know that injured Bhanwaria has succumbed to his injuries and the offence would one of murder 787 punishable under Sec
302 IPC
This conduct of the Investigating Officer left us guessing
Some light is shed by some averments from the affidavit filed in the High Court and extracted by the learned Judge in his judgment
It is stated that the respondent is the Sarpanch of Vil
Danwara and is an influential person and that his father Ranjit Singh is ex MLA and is at present Pradhan of the Panchayat Samiti
Are these relevant considerations for not cancelling anticipatory bail when it appears to have been granted by a clear misconception of the relevant considerations governing of anticipatory bail  The answer is emphatically in the negative in view of the extracted observations from the decision of the Constitution Bench in Gurbaksh Singh Sibbia s case
The accusation against the respondent is that he has committed an offence of murder punishable under Sec
302 IPC
Surprisingly when anticipatory bail was granted on September 30 1983 there is not a whisper of it in the order of the learned Sessions Judge Jodhpur
When a person is accused of a offence of murder by the use of a fire arm the Court has to be careful and circumspect in entertaining an application for anticipatory bail
Relevant considerations are conspicuous by silence in the order of the learned Sessions Judge
Could it be said in this case that the accusation appears to stem not from motives of furthering the ends of justice but from some ulterior motive  Could it be said that the object being to injure and humiliate the respondent by having him arrested  What prompted the learned Sessions Judge to grant anticipatory bail left us guessing and we arc none the wiser by the discussion in the order of the learned Single Judge declining to interfere
Mr Mulla learned counsel who appeared for the respondent urged that the order of the learned Sessions Judge is not of anticipatory bail under Sec
438 but it is an order made after looking into the papers of investigation and therefore it is an order of bail under Section 439 of the Code of Criminal Procedure
We remain unconvinced because the order of the learned Sessions Judge clearly directs that if the respondent is taken into custody by the police he must be released on bail on his furnishing security in the amount mentioned by him
The learned Judge himself styled the order as one under Sec
438 of the Code of Criminal Procedure
If there was any doubt about this aspect the penultimate para of the judge 788 ment of the learned Single Judge of the High Court dispels the same when it recites that no order for cancelling bail can be made when the learned Additional Sessions Judge No 1 Jodhpur has granted anticipatory bail to the respondent by his order dated September 30 1983
Mr Mulla then attempted to urge that on merits a good case for granting bail is made out
We are not inclined to examine this contention because neither the learned Sessions Judge nor the learned Single Judge of the High Court has examined the case from that angle
The only question which we were called upon to decide is whether the learned Sessions Judge was justified in granting anticipatory bail in the facts and circumstances of this case  Unquestionably no case was made out for granting anticipatory bail in this case
Let it be made distinctly clear that status in life affluence or otherwise are hardly relevant considerations while examining the request for granting anticipatory bail
Anticipatory bail to some extent intrudes in the sphere of investigation of crime and the court must be cautious and circumspect in exercising such power of a discretionary nature
This case amply illustrates that the power was exercised sub silentio as to reasons or on irrelevant or considerations not germane to the determination
This Court to avoid miscarriage of justice must interfere
The High Court referred to two decisions of the Rajasthan High Court on the question of locus standi of the present appellant but once that was conceded and not questioned before us we need not refer to them
The learned Judge then referred to the decision in Gurbax Singh sibba s case but failed to take note of the relevant observations which we have extracted herein before
Reference to the decision in Gurcharan Singh  Ors
vs State Delhi Administration1 by the High Court is hardly apposite because the controversy centered round the power of the High Court to deal with the application for cancellation of bail under Section 4392 of the Code of Criminal Procedure and on merits this Court held that the High Court was not justified in cancelling the bail The Court was not concerned with examining the relevant considerations for granting or refusing to grant anticipatory hail in that case
The deision in 1 789 State vs Capt
Jagjit singh1 would be of n assistance as the provision of anticipatory bail come to be introduced in the Code of 1973
Similarly the decision in Delhi Admn
vs Sanjay Gandhi2 is of no assistance because the court was concerned with the question of cancellation of bail already granted long back in the facts and circumstances of the case on account of events subsequent to the order granting bail
The High Court lastly referred to Bhagirath Singh Judeja vs State of Gujrat 3 because that was the case in which accusation was for an offence under Sec
307 IPC and the learned Sessions Judge had granted bail which order was quashed by the High Court
As stated earlier by reference to these decisions not of topical interest bearing on the question of grant or refusal of anticipatory bail the High Court unfortunately missed crux of the matter
Before we conclude this judgment it must be made distinctly clear that some very compelling circumstances must be made out for granting bail to a person accused of committing murder and that to when the investigation is in progress
In fact the Investigating Officer did not even attempt to arrest the appellant though the initial accusation was under Sec
307 IPC punishable with imprisonment for life
And as soon as the victim of the assault succumbed to his injuries and an offence under Sec
302 was registered promptly an application for anticipatory bail was made and granted
If such an order is allowed to stand faith of public in administration of justice is likely to be considerably shaken
Therefore we have no option but to cancel the order granting anticipatory bail
By our setting aside the order granting anticipator bail respondent should in no way be prejudiced
If consequent upon the setting aside of the order granting anticipatory bail the respondent is arrested which must ordinarily follow it is open to him if he is so advised to move an application for being enlarged on bail and the Court would consider the same on merits wholly uninfluenced by the earlier orders the judgment of the learned Single Judge of the High Court and this judgment
1  2  3 1984 1 SCC284
790 Accordingly this appeal is allowed and the order dated September 30 1983 granting anticipatory bail to the respondent Chandan Singh so Ranjit Singh is quashed and set aside and the bond furnished by him is cancelled
We order accordingly


Summary:
The respondent was not arrested till September 29  1983  when he appeared before the Sessions Judge  and moved an application under s438 Cr
PC for anticipatory bail  and by order dated September 30  1983 it was granted with a direction that if the respondent was taken into custody by the police he must be released on bail on his furnishing security in the amount of Rs 5000 on condition that he will assist in the investigation and will not go out of India
The appellant moved the High Court questioning the correctness of the order granting anticipatory bail and for cancellation of the same
A Single judge held that he had locus standi to move the High Court for cancellation of the anticipatory bail but on merits held that no grounds were made out for its cancellation  and accordingly rejected the application
The Appellant appealed to this Court
Allowing the Appeal   HELD 1
Relevant considerations governing the Court s decision in granting anticipatory bail under s438 are materially different from those when an application for bail by a person who is arrested in the course of an investigation as also by a person who is convicted and his appeal is pending before the 781 higher court and bail is sought t during the pendently of the appeal
In the instant case the High Court unfortunately fell into error in mixing up all the consideration  as if all the three become relevant in the present situation
785B C 2
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 place the latter is granted in anticipa tion of arrest andis therefore effective at the very moment of arrest
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
A direction under s438 is intended to confer conditional immunity from the touch as envisaged by s461 or confinement
78D E 3
In regared 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
It cannot be laid down as an inexorable rule that anticipatory bail cannot be granted unless the proposed accusation appears 1 to be actuated by malafides and equally that anticipatory bail must be granted if there is no fear that the applicant will abscond
Some of the relevant considerations which govern the discretion of the Court while deciding an application for anticipatory bail are 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  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 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
785G H 786A D 4
The incident in which Bhanwaria was injured with fire arm occurred on August 231983 in respect of which the First Information Report was lodged on August 24 1983 and it was in clear and unambiguous terms alleged that the respondent was at the relevant time armed with a gun and fired towards Bhanwaria who suffered injuries by the gunshot
Amongst others the offence registered was under s307 IPC that is attempt to commit murder
The first information report thus discloses use of fire arm with which the respondent attempted to commit murder of Bhanwaria
Surprisingly the Investigating Officer had not arrested him till September 29 1983 when he moved an application for anticipatory bail under s438 Cr
PC presumably after coming to know that injured has succumbed to his injuries and the offence would be one of murder punishable under s302 IPC
This conduct of the Investigating Officer leaves the Court guessing
The affidavit led in the High Court states that the Respon 782 dent is the Sarpanch of the village and is an influential person and that his father is Ex MLA and is at present Pradhan of the Panchayat Samiti
They are not relevant considerations for cancelling anticipatory bail when it appears to have been granted by a clear misconception of the relevant considerations governing the grant of anticipatory bail 786F H 787A B 5
The accusation against the respondent is that he has committed an offence of murder punishable under s302 IPC Surprisingly when anticipatory bail was granted on September 30 1983 there is not a whisper of it in the order of the learned Session Judge
When a person is accused of an offence of murder by the use of a fire arm the Court has to be careful and circumspect in entertaining an application for anticipatory bail
Relevant considerations are conspicuous by silence in the order of the Session Judge In the instant case it cannot be said that the accusation does not appear to stem from motives of furthering the ends of Justice but from some ulterior motive and the object was to injure and humiliate the respondent by having him arrested
What prompted the Sessions Judge to grant anticipatory bail leaves the Court guessing and the Court is none the wiser by the order of the High Court declining to interfere
787D F 6
The order of the Session Judge clearly directs that if the respondent is taken into custody by the police he must be released on bail on his furnishing security in the amount mentioned by him
The order is styled as one under s438 Cr
PC 787H 7
Unquestionably no case was made out for granting anticipatory bail in this case
Status in life affluence or otherwise are hardly relevant considerations while examining the request for granting anticipatory bail
Anticipatory bail to some extent intrudes in the sphere of investigation of the crime and the Court must be cautious and circumspect in exercising such power of a discretionary nature
In the instant case the power was exercised sub silentio as to reasons or on irrelevant or considerations not germane to the determination
This Court to avoid miscarriage of justice must interfere 
787D E 8
Some very compelling circumstances must be made out for granting bail to a person accused of committing murder and that too when the investigation is in progress
In the instant case the Investigating Officer did not even attempt to arrest the appellant though the initial accusation was under s307 IPC punishable with imprisonment for life and as 50 n as the victim of the assault succumbed to his injuries and offence under s302 was registered promptly an application for anticipatory bail was made and granted
If such an order is allowed to stand faith of public in administration of justice is likely to be considerably shaken Therefore the order granting anticipatory bail is cancelled
789D F 9
Settling aside the order granting anticipatory bail should in no way prejudice the respondent
It si open to him to move an application for being 783 enlarged on bail and the Court would consider the same on merits wholly uninfluenced by the earlier orders the judgment of the learned Single Judge of the High Court and this Judgment
789G H Shri Gurbaksh Singh Sibbia and Ors
vs State of Punjab   relied upon
Gurcharan Singh and Ors
StateDelhi Administration   State vs Capt
Jagjit Singh   Delhi Admn
vs Sanjay Gandhi  and Bhagirath Singh Judeja vs State of Gujarat 1984 I SCC 284 referred to