Case: Siddharam Satlingappa Mhetre Vs. State Of Maharashtra

in Kalyani, which is the binding authority on the point. 145. In Bharat Petroleum Corporation Ltd. v. Mumbai Shramik Sangra and Ors., IV (2001) SLT 359=(2001) 4 SCC 448 , a Constitution Bench of this Court ruled that a decision of a Constitution Bench of this Court binds a Bench of two learned Judges of this Court and that judicial discipline obliges them to follow it, regardless of their doubts about its correctness. 146. A Constitution Bench of this Court in Central Board of Dawoodi Bohra Community v. State of Maharashtra, I (2005) SLT 45=(2005) 2 SCC 673 , has observed that the law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or co-equal strength. 147. A three-Judge Bench of this Court in Official Liquidator v. Dayanand and Ors., VIII (2008) SLT 695=(2008) 10 SCC 1 , again reiterated the clear position of law that by virtue of Article 141 of the Constitution, the judgment of the Constitution Bench in State of Karnataka and Ors. v. Umadevi (3) and Ors., III (2006) SLT 539=(2006) 4 SCC 1 , is binding on all Courts including this Court till the same is overruled by a Larger Bench. The ratio of the Constitution Bench has to be followed by Benches of lesser strength. In para 90, the Court observed as under: We are distressed to note that despite several pronouncements on the subject, there is substantial increase in the number of cases involving violation of the basics of judicial discipline. The learned Single Judges and Benches of the High Courts refuse to follow and accept the verdict and law laid down by coordinate and even Larger Benches by citing minor difference in the facts as the ground for doing so. Therefore, it has become necessary to reiterate that disrespect to the constitutional ethos and breach of discipline have grave impact on the credibility of judicial institution and encourages chance litigation. It must be remembered that predictability and certainty is an important hallmark of judicial jurisprudence developed in this country in the last six decades and increase in the frequency of conflicting judgments of the superior judiciary will do incalculable harm to the system inasmuch as the Courts at the grass roots will not be able to decide as to which of the judgments lay down the correct law and which one should be followed. 148. In Subhash Chandra and Anr. v.Delhi Subordinate Services Selection Board & Ors., I (2010) SLT 372=(2009) 15 SCC 458 , this Court again reiterated the settled legal position that Benches of lesser strength are bound by the judgments of the Constitution Bench and any Bench of smaller strength taking contrary view is per incuriam. The Court in para 110 observed as under: Should we consider S. Pushpa v. Sivachanmugavelu, (2005) 3 SCC 1 to be an obiter following the said decision is the question which arises herein. We think we should. The decisions referred to hereinbefore clearly suggest that we are bound by a Constitution Bench decision. We have referred to two Constitution Bench decisions, namely, Marri Chandra Shekhar Rao v. Seth G.S. Medical College, (1990) 3 SCC 139 and E.V. Chinnaiah v. State of A.P., (2005) 1 SCC 394. Marri Chandra Shekhar Rao (supra) had been followed by this Court in a large number of decisions including the three-Judge Bench decisions. S. Pushpa (supra) therefore, could not have ignored either Marri Chandra Shekhar Rao (supra) or other decisions following the same only on the basis of an administrative circular issued or otherwise and more so when the constitutional scheme as contained in Clause (1) of Articles 341 and 342 of the Constitution of India putting the State and Union Territory in the same bracket. Following Official Liquidator v. Dayanand & Ors., VIII (2008) SLT 695=(2008) 10 SCC 1 , therefore, we are of the opinion that the dicta in S. Pushpa (supra) is an obiter and does not lay down any binding ratio. 149. The analysis of English and Indian Law clearly leads to the irresistible conclusion that not only the judgment of a larger strength is binding on a judgment of smaller strength but the judgment of a co-equal strength is also binding on a Bench of Judges of co-equal strength. In the instant case, judgments mentioned in paragraphs 135 and 136 are by two or three Judges of this Court. These judgments have clearly ignored a Constitution Bench judgment of this Court in Sibbias case (supra) which has comprehensively dealt with all the facets of anticipatory bail enumerated under Section 438 of Cr.P.C.. Consequently, judgments mentioned in paragraphs 135 and 136 of this judgment are per incuriam. 150. In case there is no judgment of a Constitution Bench or Larger Bench of binding nature and if the Court doubts the correctness of the judgments by two or three Judges, then the proper course would be to request Honble the Chief Justice to refer the matter to a Larger Bench of appropriate strength. 151. In the instant case there is a direct judgment of the Constitution Bench of this Court in Sibbias case (supra) dealing with exactly the same issue regarding ambit, scope and object of the concept of anticipatory bail enumerated under Section 438, Cr.P.C. The controversy is no longer res integra. We are clearly bound to follow the said judgment of the Constitution Bench. The judicial discipline obliges us to follow the said judgment in letter and spirit. 152. In our considered view the impugned judgment and order of the High Court declining anticipatory bail to the appellant cannot be sustained and is consequently set aside. 153. We direct the appellant to join the investigation and fully cooperate with the investigating agency. In the event of arrest the appellant shall be released on bail on his furnishing a personal bond in the sum of Rs.50,000/- with two sureties in the like amount to the satisfaction of the arresting officer.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]149. The analysis of English and Indian Law clearly leads to the irresistible conclusion that not only the judgment of a larger strength is binding on a judgment of smaller strength but the judgment of a co-equal strength is also binding on a Bench of Judges of co-equal strength. In the instant case, judgments mentioned in paragraphs 135 and 136 are by two or three Judges of this Court. These judgments have clearly ignored a Constitution Bench judgment of this Court in Sibbias case (supra) which has comprehensively dealt with all the facets of anticipatory bail enumerated under Section 438 of Cr.P.C.. Consequently, judgments mentioned in paragraphs 135 and 136 of this judgment are per incuriam150. In case there is no judgment of a Constitution Bench or Larger Bench of binding nature and if the Court doubts the correctness of the judgments by two or three Judges, then the proper course would be to request Honble the Chief Justice to refer the matter to a Larger Bench of appropriate strength151. In the instant case there is a direct judgment of the Constitution Bench of this Court in Sibbias case (supra) dealing with exactly the same issue regarding ambit, scope and object of the concept of anticipatory bail enumerated under Section 438, Cr.P.C. The controversy is no longer res integra. We are clearly bound to follow the said judgment of the Constitution Bench. The judicial discipline obliges us to follow the said judgment in letter and spirit152. In our considered view the impugned judgment and order of the High Court declining anticipatory bail to the appellant cannot be sustained and is consequently set aside153. We direct the appellant to join the investigation and fully cooperate with the investigating agency. In the event of arrest the appellant shall be released on bail on his furnishing a personal bond in the sum of Rs.50,000/- with two sureties in the like amount to the satisfaction of the arresting officer93. It is a matter of common knowledge that a large number of undertrials are languishing in jail for a long time even for allegedly committing very minor offences. This is because Section 438, Cr.P.C. has not been allowed its full play. The Constitution Bench in Sibbias case (supra) clearly mentioned that Section 438, Cr.P.C. is extraordinary because it was incorporated in the Code of Criminal Procedure, 1973 and before that other provisions for grant of bail were Sections 437 and 439, Cr.P.C. It is not extraordinary in the sense that it should be invoked only in exceptional or rare cases. Some Courts of smaller strength have erroneously observed that Section 438, Cr.P.C. should be invoked only in exceptional or rare cases. Those orders are contrary to the law laid down by the judgment of the Constitution Bench in Sibbias case (supra). According to the report of the National Police Commission, the power of arrest is grossly abused and clearly violates the personal liberty of the people, as enshrined under Article 21 of the Constitution, then the Courts need to take serious notice of it. When conviction rate is admittedly less than 10%, then the police should be slow in arresting the accused. The Courts considering the bail application should try to maintain fine balance between the societal interests personal liberty while adhering to the fundamental principle of criminal jurisprudence that the accused that the accused is presumed to be innocent till he is found guilty by the competent Court99. As aptly observed in Sibbias case (supra) that a wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail102. The order granting anticipatory bail for a limited duration and thereafter directing the accused to surrender and apply before a regular bail is contrary to the legislative intention and the judgment of the Constitution Bench in Sibbias case (supra)103. It is a settled legal position that the Court which grants the bail also has the power to cancel it. The discretion of grant or cancellation of bail can be exercised either at the instance of the accused, the public prosecutor or the complainant on finding new material or circumstances at any point of time104. The intention of the Legislature is quite clear that the power of grant or refusal of bail is entirely discretionary. The Constitution Bench in Sibbias case (supra) has clearly Stated that grant and refusal is discretionary and it should depend on the facts and circumstances of each case. The Constitution Bench in the said case has aptly observed that we must respect the wisdom of the Legislature entrusting this power to the superior Courts namely, the High Court and the Court of Session106. The judgment in Salauddin Abdulsamad Shaikh (supra) is contrary to legislative intent and the spirit of the very provisions of the anticipatory bail itself and has resulted in an artificial and unreasonable restriction on the scope of enactment contrary to the legislative intention107. The restriction on the provision of anticipatory bail under Section 438, Cr.P.C. limits the personal liberty of the accused granted under Article 21 of the constitution. The added observation is nowhere found in the enactment and bringing in restrictions which are not found in the enactment is again an unreasonable restriction. It would not stand the test of fairness and reasonableness which is implicit in Article 21 of the Constitution after the decision in Maneka Gandhis case (supra) in which the Court observed that in order to meet the challenge of Article 21 of the Constitution the procedure established by law for depriving a person of his liberty must be fair, just and reasonable111. The Court must bear in mind that at times the applicant would approach the Court for grant of anticipatory bail on mere apprehension of being arrested on accusation of having committed ae offence. In fact, the investigating or concerned agency may not otherwise arrest that applicant who has applied for anticipatory bail but just because he makes an application before the Court and gets the relief from the Court for a limited period and thereafter he has to surrender before the trial Court and only thereafter his bail application can be considered and life of anticipatory bail comes to an end. This may lead to disastrous and unfortunate consequences. The applicant who may not have otherwise lost his liberty loses it because he chose to file application of anticipatory bail on mere apprehension of being arrested on accusation of having committed ae offence. No arrest should be made because it is lawful for the police officer to do so. The existence of power to arrest is one thing and the justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so. This finding of the said judgment (supra) is contrary to the legislative intention and law which has been declared by a Constitution Bench of this Court in Sibbias case (supra)112. The validity of the restrictions imposed by the Apex Court, namely, that the accused released on anticipatory bail must submit himself to custody and only thereafter can apply for regular bail. This is contrary to the basic intention and spirit of Section 438, Cr.P.C. It is also contrary to Article 21 of the Constitution. The test of fairness and reasonableness is implicit under Article 21 of the Constitution of India. Directing the accused to surrender to custody after the limited period amounts to deprivation of his personal liberty115. The Apex Court in Salauddins case (supra) held that anticipatory bail should be granted only for a limited period and on the expiry of that duration it should be left to the regular Court to deal with the matter is not the correct view. The reasons quoted in the said judgment is that anticipatory bail is granted at a stage when an investigation is incomplete and the Court is not informed about the nature of evidence against the alleged offender117. The view expressed by this Court in all the above referred judgments have to be reviewed and once the anticipatory bail is granted then the protection should ordinarily be available till the end of the trial unless the interim protection by way of the grant of anticipatory bail is curtailed when the anticipatory bail granted by the Court is cancelled by the Court on finding fresh material or circumstances or on the ground of abuse of the indulgence by the accused118. A good deal of misunderstanding with regard to the ambit and scope of Section 438, Cr.P.C. could have been avoided in case the Constitution Bench decision of this Court in Sibbias case (supra) was correctly understood, appreciated and applied121. No inflexible guidelines ort formula can be provided for grant or refusal of anticipatory bail. We are clearly of the view that no attempt should be made to provide rigid and inflexible guidelines in this respect because all circumstances and situations of future cannot be clearly visualized for the grant or refusal of anticipatory bail. In consonance with the legislative intention the grant or refusal of anticipatory bail should necessarily depend on facts and circumstances of each case. As aptly observed in the Constitution Bench decision in Sibbias case (supra) that the High Court or the Court of Sessions to exercise their jurisdiction under Section 438, Cr.P.C. by a wise and careful use of their discretion which by their long training and experience they are ideally suited to do. In any event, this is the legislative mandate which we are bound to respect and honour125. These are some of the factors which should be taken into consideration while deciding the anticipatory bail applications. These factors are by no means exhaustive but they are only illustrative in nature because it is difficult to clearly visualize all situations and circumstances in which a person may pray for anticipatory bail. If a wise discretion is exercised by the concerned Judge, after consideration of entire material on record then most of the grievances in favour of grant of or refusal of bail will be taken care of. The Legislature in its wisdom has entrusted the power to exercise this jurisdiction only to the judges of the superior Courts. In consonance with the legislative intention we should accept the fact that the discretion would be properly exercised. In any event, the option of approaching the superior Court against the Court of Sessions or the High Court is always available126. Irrational and Indiscriminate arrest are gross violation of human rights. In Joginder Kumars case (supra), a three Judge Bench of this Court has referred to the 3rd Report of the National Police Commission, in which it is mentioned that the quality of arrests by the Police in India mentioned power of arrest as one of the chief sources of corruption in the police. The report suggested that, by and large, nearly 60% of the arrests were either unnecessary or unjustified and that such unjustified police action accounted for 43.2% of the expenditure of the jails133. In our considered view, the Constitution Bench in Sibbias case (supra) has comprehensively dealt with almost all aspects of the concept of anticipatory bail under Section 438, Cr.P.C. A number of judgments have been referred to by the learned Counsel for the parties consisting of Benches of smaller strength where the Courts have observed that the anticipatory bail should be of limited duration only and ordinarily on expiry of that duration or standard duration, the Court granting the anticipatory bail should leave it to the regular Court to deal with the matter. This view is clearly contrary to the view taken by the Constitution Bench in Sibbias case (supra). In the preceding paragraphs, it is clearly spelt out that no limitation has been envisaged by the Legislature under Section 438, Cr.P.C. The Constitution Bench has aptly observed that we see no valid reason for rewriting Section 438 with a view, not to expanding the scope and ambit of the discretion conferred on the High Court or the Court of Session but, for the purpose of limiting it134. In view of the clear declaration of law laid down by the Constitution Bench in Sibbias case (supra), it would not be proper to limit the life of anticipatory bail. When the Court observed that the anticipatory bail is for limited duration and thereafter the accused should apply to the regular Court for bail, that means the life of Section 438, Cr.P.C. would come to an end after that limited duration. This limitation has not been envisaged by the Legislature. The Constitution Bench in Sibbias case (supra) clearly observed that it is not necessary toSection 438, Cr.P.C. Therefore, in view of the clear declaration of the law by the Constitution Bench, the life of the order under Section 438, Cr.P.C. granting bail cannot be curtailed135. The ratio of the judgment of the Constitution Bench in Sibbias case (supra) perhaps was not brought to the notice of Their Lordships who had decided the cases of Salauddin Abdulsamad Shaikh v. State of Maharashtra; K. L. Verma v. State and Another; Adri Dharan Das v. State of West Bengal; and Sunita Devi v. State of Bihar and Anr. (supra)136. In Naresh Kumar Yadav v. Ravindra Kumar, IX (2007) SLT 50=IV (2007) DLT (Crl.) 588 (SC)=IV (2007) CCR 281 (SC)=(2008) 1 SCC 632 , ae Bench of this Court observed the power exercisable under Section 438, Cr.P.C. is somewhat extraordinary in character and it should be exercised only in exceptional cases. This approach is contrary to the legislative intention and the Constitution Benchs decision in Sibbias case (supra)137. We deem it appropriate to reiterate and assert that discretion vested in the Court in all matters should be exercised with care and circumspection depending upon the facts and circumstances justifying its exercise. Similarly, the discretion vested with the Court under Section 438, Cr.P.C. should also be exercised with caution and prudence. It is unnecessary to travel beyond it and subject to the wide power and discretion conferred by the Legislature to a rigorous code of138. The judgments and orders mentioned in paras 135 and 136 are clearly contrary to the law declared by the Constitution Bench of this Court in Sibbias case (supra). These judgments and orders are also contrary to the legislative intention. The Court would not be justified in438, Cr.P.C.