Case: Siddharam Satlingappa Mhetre Vs. State Of Maharashtra

2. This appeal involves issues of great public importance pertaining to the importance of individuals personal liberty and the societys interest3. The society has a vital interest in grant or refusal of bail because every criminal offence is the offence against the State. The order granting or refusing bail must reflect perfect balance between the conflicting interests, namely, sanctity of individual liberty and the interest of the society. The law of bails dovetails two conflicting interests namely, on the one hand, the requirements of shielding the society from the hazards of those committing crimes and potentiality of repeating the same crime while on bail and on the other hand absolute adherence of the fundamental principle of criminal jurisprudence regarding presumption of innocence of an accused until he is found guilty and the sanctity of individual liberty4. Brief facts which are necessary to dispose of this appeal are recapitulated as under:The appellant, who belongs to the Indian National Congress Party (for short Congress party) is the alleged accused in this case. The case of the prosecution, as disclosed in the First Information Report (for short FIR), is that Sidramappa Patil was contesting election of the State Assembly on behalf of the Bhartiya Janata Party (for short BJP). In the FIR, it is incorporated that Baburao Patil, Prakash Patil, Mahadev Patil, Mallikarjun Patil, Apparao Patil, Yeshwant Patil were supporters of the Congress and so also the supporters of the appellant Siddharam Mhetre and opposed to the BJP candidate5. On 26.9.2009, around 6.00 p.m. in the evening, Sidramappa Patil of BJP came to the village to meet his party workers. At that juncture, Shrimant Ishwarappa Kore, Bhimashankar Ishwarappa Kore, Kallapa Gaddi, Sangappa Gaddi, Gafur Patil, Layappa Gaddi, Mahadev Kore, Suresh Gaddi, Suresh Zhalaki, Ankalgi, Sarpanch of village Shivmurti Vijapure met Sidramappa Patil and thereafter went to worship and pray at Layavva Devis temple. After worshipping the Goddess when they came out to the assembly hall of the temple, these aforementioned political opponents namely, Baburao Patil, Prakash Patil, Gurunath Patil, Shrishail Patil, Mahadev Patil, Mallikarjun Patil, Annarao @ Pintu Patil, Hanumant Patil, Tammarao Bassappa Patil, Apparao Patil, Mallaya Swami, Sidhappa Patil, Shankar Mhetre, Usman Sheikh, Jagdev Patil, Omsiddha Pujari, Panchappa Patil, Mahesh Hattargi, Siddhappa Birajdar, Santosh Arwat, Sangayya Swami, Anandappa Birajdar, Sharanappa Birajdar, Shailesh Chougule, Ravi Patil, Amrutling Koshti, Ramesh Patil and Chandrakant Hattargi suddenly came rushing in their direction and loudly shouted, why have you come to our village? Have you come here to oppose our Mhetre Saheb? They asked them to go away and shouted Mhetre Saheb Ki Jai6. Baburao Patil and Prakash Patil from the aforementioned group fired from their pistols in order to kill Sidramappa Patil and the other workers of the BJP. Bhima Shankar Kore was hit by the bullet on his head and died on the spot. Sangappa Gaddi, Shivmurti Vjapure, Jagdev Patil, Layappa Patil, Tammaro Patil were also assaulted. It is further mentioned in the FIR that about eight days ago, the appellant Siddharam Mhetre and his brother Shankar Mhetre had gone to the village and talked to the abovementioned party workers and told them that, if anybody says anything to you, then you tell me. I will send my men within five minutes. You beat anybody. Do whatever18. The High Court in the impugned judgment has declined to grant anticipatory bail to the appellant and aggrieved by the said order, the appellant has approached this Court by filing this appeal

Reasoning: 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.