SUSHILA AGGARWAL AND OTHERS versus STATE (NCT OF DELHI) AND ANOTHER
[2020] 2 S.C.R. 1, Supreme Court of India, 2020
Outcome: Directions issued
Segment: Facts
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22. Mr. K.V. Vishwanathan, learned Senior Counsel emphasised
that the exercise of power under Section 438 is identical to the exercise
of power under Sections 437 and 439 Cr. P.C. Consequently, pre arrest
bail granted in anticipation of arrest- under Section 438, in his submission,
operates like any other order of bail i.e. till an order of conviction or
affirmative direction is passed to arrest the individuals, is made under
Section 439 (2). Mr. Vishwanathan highlighted that Section 438 has an
intrinsic link with Article 21 in as much as it seeks to balance state’s
power and responsibility to investigate offence, with its duty to protect
individual rights and liberties of citizens. It was submitted that Article 21
raises the presumption of innocence in favour of other accused;
consequently, this has to be at the centre of every consideration of penal
statutes and their interpretation.
23. It was also submitted that Section 438 being part of procedure
established by law is to be construed in a fair, just and reasonable manner.
Learned counsel reiterated that this was what the Court highlighted in
Sibbia. Mr. Vishwanathan, after outlining the background of Section
438 - in the context of the observations of the 41st Law Commission
Report submitted that those comments should also be considered in the
light of the observations made in the Report of the Committee on Reforms
of the Criminal Justice System by Dr. Justice
V.S. Malimath. Reliance
on para 7.26.3.19
24. It was urged that the power of arrest with the police is under
Section 41 of the CrPC. That provision is in two parts. One, relating to
offences in which the maximum punishment can extend to imprisonment
for seven year. Second, relating to offences in which the maximum
punishment can extend to imprisonment to above seven years or death
penalty. Though they have different conditions and thresholds, in both
cases it is clear from a bare reading of the section that the power of
arrest cannot be exercised in ever FIR that is registered u/s 154 Cr.PC.
This power is circumscribed by the conditions laid down in this section.
Moreover, this principle that the power of arrest is not required to be
exercised in every case was recognized in the case of Joginder Kumar
19 The Report remarked – after considering 3
rdReport of the National Police Commission
that the “power of arrest was one of the chief sources of corruption in the police.  The
report suggested that by and large nearly 60% of the arrests were either unnecessary or
unjustified and that such unjustified police action accounted for 43.2% of the expenditure
of the prison department”.
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v. State of U.P20; Lalitha Kumari v. State of U.P21; and Arnesh Kumar
v. State of Bihar.22 This Court in M.C. Abraham v. State of
Maharastra23 held that it was not mandatory for the police to arrest a
person only because his/her anticipatory bail had been rejected. It was
further stated that the power of arrest is then further circumscribed by
Section 438. As recognized by the Law Commission, there are cases
where the power of arrest is not required or allowed to be exercised.
Exercising power of arrest in such cases would be a grave violation of a
person’s right and liberty. Such exercise of power would amount to misuse
of Section 41. The check on the power of arrest and custody provided
by Sections 437 or 439 is limited as the check is only post facto. By then
the person arrested has already suffered the trauma and humiliation of
arrest.
25. Counsel submitted to strike a further balance between the
power of arrest and the rights of the accused, the power under Section
438 is specifically given to the Court of Session and the High Court so as
to ensure that this judicial intervention is done at the supervisory level
and not at the magisterial level. It is in this light that the two questions
raised in the present reference need to be addressed. It was urged that
a bare reading of Section 438 shows that there is nothing in the language
of the section which goes to show that the pre-arrest bail granted under
this section has to be time-bound. The position
is the same as in Sections
437 and 439. Counsel pointed to Section 438 (3) and submitted that two
important aspects of this provision highlight the understanding the scheme
of the Code:
a) A person in whose favour a pre-arrest bail order has been
made under Section 438 has to first be arrested. Such person is
then released on bail on the basis of the pre-arrest bail order. For
such release the person has to comply with the requirement of
Section 441 of giving a bond or surety; and
b) Where the magistrate taking cognizance u/s 204 is of the view
that a warrant is required to be issued at the first instance, such
magistrate is only empowered to issue only a bailable warrant
and not a non-bailable warrant.
20 1994 (4) SCC 260
21 2014 (2) SCC 1
22 2014 (8) SCC 273
23 2003 (2) SCC 649
SUSHILA AGGARWAL v. STATE (NCT OF DELHI)
[S. RAVINDRA BHAT, J.]
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26. This curtailment of power of the magistrate clearly shows
Parliamentary intent that one who is granted relief under Section 438
ought not to be arrested at the stage of cognizance because of the said
pre-arrest bail order. Considering this express provision, no other
interpretation can be given to the said section. The second question
referred here squarely covered by this sub-section. This order passed
under Section 438, is a pre-arrest direction (to release on bail, in the
event of arrest), is subject to the power granted to the Court of Session
and the High Court under Section 439(2) Cr. P.C. It is clear from the
provision that a bail granted under Section 438 is further governed by
Section 439(2) which gives the power to the Court of Session or the
High Court to direct the arrest of the accused at any time. This ensures
that through judicial intervention the balance between the two competing
principles can again be revisited if the need arises. In other words,
considering any relevant change in circumstances the prosecution can
seek the arrest of the accused. The only difference is that the power of
arrest in these cases is exercised only after judicial scrutiny. This provision
envisions that the Code presupposes that orders once passed under
Sections 438 and 439 will continue till a contrary order is passed under
Section 439(2). The order passed under Sections 438 or 439 are not and
temporary or time bound.
Therefore, a person enjoying the benefit of
orders under these sections can be taken into custody only when a specific
direction is passed under Section 439(2). This direction for arrest under
Section 439 (2) is different from seeking cancellation of bail.
27. It was argued that undoubtedly violation of a condition imposed
in an order passed under Section 438 can lead to a direction of arrest
under Section 439(2). However, the scope of Section 439(2) is not limited
to only cancellation of bail. Counsel stated that this proposition of law
was considered by this court in Pradeep Ram v. State of Jharkhand24.
In this case, this court while considering an earlier judgment in Mithabhai
Pashabhai Patel v. State of Gujarat25, held that by virtue of Sections
437(5) and 439(2), a direction to take a person into custody could be
passed despite his being released on bail, by a previous order. The court
held that under Sections 437(5) and 439(2) a person could be directed to
be taken into custody without necessarily cancelling his earlier bail. The
difference between cancellation of bail and a direction to take a person
into custody under Section 439(2) was recognised. It was also held in
24 2019 SCC Online (SC) 825
25 2009 (6) SCC 332,
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this case that if a graver offence is added to the FIR or to the case after
the person has been granted bail, a direction under Section 439(2) or
437(5) is required before such person can be arrested again for the new
offences added to the case.Therefore, this court recognized the need
for court’s supervision after the bail had been granted.
28. Mr. Hiren Raval, learned amicus curiae, highlighted that while
there are passages in Sibbia (supra), which support the arguments of
the petitioners, that orders under Section 438 can be unconditional and
not limited by time, the court equally struck a note of caution, and wished
courts to be circumspect while making orders of anticipatory bail. In this
regard, learned senior counsel highlighted paragraphs 42 and 43 of the
decisions in Sibbia.
29. Elaborating on his submissions, the amicus submitted that
whether to impose any conditions or limit the order of anticipatory bail in
point of time undoubtedly falls within the discretion of the court seized of
the application. He however submitted that this discretion should be
exercised with caution and circumspection. Counsel submitted that there
could be three situations when anticipatory bail applications are to be
considered: one, when the application is filed in anticipation of arrest,
before filing FIR; two, after filing FIR, but before the filing of the charge
sheet; and three, after filing charge sheet. It was submitted that as a
matter of prudence and for good
reasons, articulated in Salauddin, K.L.
Verma, Adri Dharan Das and decisions adopting their reasoning, it would
be salutary and in public interest for courts to impose time limits for the
life of orders of anticipatory bail. Counsel submitted that if anticipatory
bail is sought before filing of an FIR the courts should grant relief, limited
till the point in time, when the FIR is filed. In the second situation, i.e.
after the FIR is filed, the court may limit the grant of anticipatory bail till
the point of time when a charge sheet is filed; in the third situation, if the
application is made after filing the charge sheet, it is up to the court, to
grant or refuse it altogether, looking at the nature of the charge. Likewise,
if arrest is apprehended, the court should consider the matter in an entirely
discretionary manner, and impose such conditions as may be deemed
appropriate.
30. Mr. Raval submitted that in every contingency, the court is not
powerless after the grant of an order of anticipatory bail; it retains the
discretion to revisit the matter if new material relevant to the issue, is
discovered and placed on record before it. He highlighted Section 439(2)
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and argued that that provision exemplified the power of the court to
modify its previous approach and even revoke altogether an earlier order
granting anticipatory bail. It was submitted that the bar under Section
362 of the Code (against review of an order by a criminal court) is
inapplicable to matters of anticipatory bail, given the nature and content
of the power under Section 439(2).
31. Mr. Raval also submitted that power under Section 438 cannot
be exercised to undermine any criminal investigation. He highlighted the
concern that an unconditional order of anticipatory bail, would be capable
of misuse to claim immunity in a blanket manner, which was never the
intent of Parliament. Counsel submitted that besides, the discretion of
courts empowered to grant anticipatory bail should be understood as
balancing the right to liberty and the public interest in a fair and objective
investigation. Therefore, such orders should be so fashioned as to ensure
that accused individuals co-operate during investigations and assist in
the process of recovery of suspect or incriminating material, which they
may lead the police to discover or recover and which is admissible, during
the trial, per Section 27 of the Evidence Act. He submitted that if these
concerns are taken into account, the declaration of law in Mhetre –
particularly in Paras 122 and 123 that no condition can be imposed by
court, in regard to applications for
anticipatory bail, is erroneous; it is
contrary to Para 42 and 43 of the declaration of law in Sibbia’s case
(supra). It was emphasized that ever since the decision in Salauddin
and other subsequent judgments which followed it, the practise of courts
generally was to impose conditions while granting anticipatory bail:
especially conditions which required the applicant/ accused to apply for
bail after 90 days, or surrender once the charge sheet was filed, and
apply for regular bail. Counsel relied on Section 437(3) to say that the
conditions spelt out in that provision are to be considered, while granting
anticipatory bail, by virtue of Section 438(2).
32. Mr. Tushar Mehta, learned Solicitor General and Mr. Vikramjit
Banerjee, learned Additional Solicitor General, submitted that the decision
in Mhetre (supra) is erroneous and should be overruled. It was submitted
that though Section 438 does not per se pre-suppose imposition of
conditions for grant of anticipatory bail, nevertheless, given Section 438(2)
and Section 437(3), various factors must be taken into account. Whilst
exercising power to grant (or refuse) a direction in the nature of
anticipatory bail, the court is bound to strike a balance between the
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individual’s right to personal freedom and the right of investigation of the
police. For this purpose, in granting relief under Section 438(1), appropriate
conditions can be imposed under Section 438(2) to ensure an unimpeded
investigation. The object of imposing conditions is to avoid the possibility
of the person or accused hampering investigation. Thus, any condition,
which has no reference to the fairness or propriety of the investigation
or trial, cannot be countenanced as permissible under the law.
Consequently, courts should exercise their discretion in imposing
conditions with care and restraint.
33. The law presumes an accused to be innocent till his guilt is
proved. As a presumably innocent person, he is entitled to all the
fundamental rights including the right to liberty guaranteed under Article
21 of the Constitution. Counsel stated that at the same time, while granting
anticipatory bail, the courts are expected to consider and keep in mind
the nature and gravity of accusation, antecedents of the applicant, namely,
about his previous involvement in such offence and the possibility of the
applicant to flee from justice. It is also the duty of the Court to ascertain
whether accusation has been made with the object of injuring or
humiliating him by having him so arrested. It is needless to mention that
the Courts are duty bound to impose appropriate conditions as provided
under Section 438(2) of the Code.
34. Counsel argued that there is no
substantial difference between
Sections 438 and 439 of the Code as regards appreciation of the case
while granting or refusing bail. Neither anticipatory bail nor regular bail,
however, can be granted as a matter of rule. Being an extraordinary
privilege, should be granted only in exceptional cases. The judicial
discretion conferred upon the court must be properly exercised after
proper application of mind to decide whether it is a fit case for grant of
anticipatory bail. In this regard, counsel relied on Jai Prakash Singh v
State of Bihar26. Counsel relied on State of M.P. & Anr. v Ram Kishna
Balothia & Anr.27 where this court considered the nature of the right of
anticipatory bail and observed that:
“We find it difficult to accept the contention that Section 438
of the Code of Criminal Procedure is an integral part of Article
21. In the first place, there was no provision similar to Section
438 in the old Code of Criminal Procedure......Also
26 2012 (4) SCC 325
27 1995 Supp (3)SCC 419
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anticipatory hail cannot he granted as a matter of right. It is
essentially a statutory right conferred long after the coming
into force of the Constitution. It cannot he considered as an
essential ingredient of Article 21 of the Constitution. and its
non-application to a certain special category of offences
cannot he considered as violative of Article 21.”
35. The decisions in Savitri Agarwal v. State of Maharashtra
& Anr28, and Sibbia were referred to, to argue that before granting an
order of anticipatory bail, the court should be satisfied that the applicant
seeking it has reason to believe that he is likely to be arrested for a non-
bailable offence and that belief must be founded on reasonable grounds.
Mere “fear” is not belief; it is insufficient for an applicant to show that
he has some sort of vague apprehension that someone is going to accuse
him, for committing an offence pursuant to which he may be arrested.
An applicant’s grounds on which he believes he may be arrested for a
non-bailable offence, must be capable of examination by the Court
objectively. Specific events and facts should be disclosed to enable the
Court to judge of the reasonableness of his belief, the existence of which
is the sine qua non of the exercise of power conferred by the Section.
It was pointed out that the provisions of Section 438 cannot be invoked
after the arrest of the accused. After arrest, the accused must seek his
remedy
under Section 437 or Section 439 of the Code, if he wants to be
released on bail in respect of the offence or offences for which he is
arrested. The following passages in Savitri Agarwal (supra) were relied
upon:
“24. While cautioning against imposition of unnecessary
restrictions on the scope of the section, because, in its opinion,
overgenerous infusion of constraints and conditions, which
were not to be found in Section 438 of the Code, could make
the provision constitutionally vulnerable, since the right of
personal freedom, as enshrined in Article 21 of the
Constitution, cannot be made to depend on compliance with
unreasonable restrictions, the Constitution Bench laid down
the following guidelines, which the courts are required to keep
in mind while dealing with an application for grant of
anticipatory bail:
**********
****************
28 2009 (8) SCC 325
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(iv) No blanket order of bail should be passed and the court
which grants anticipatory bail must take care to specify the
offence or the offences in respect of which alone the order
will be effective. While granting relief under Section 438(1)
of the Code, appropriate conditions can be imposed under
Section 438(2) so as to ensure an uninterrupted investigation.
One such condition 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 recovery.
Otherwise, such an order can become a charter of lawlessness
and a weapon to stifle prompt investigation into offences which
could not possible be predicated when the order was passed.
*********
       **************
(ix) Though it is not necessary that the operation of an order
passed under Section 438(1) of the Code be limited in point
of timebut 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 FIR in respect of the matter covered by the order.
The applicant may, in such cases, be directed to obtain an
order of bail under Section 437 or 439 of the Code within a
reasonable short period after the filing of the FIR.”
36. It was also argued on behalf of the Govt of NCT- and the
Union, that this court had expressed a serious concern, time and again,
that if accused or applicants who
seek anticipatory bail are equipped
with an unconditional order before they are interrogated by the police it
would greatly harm the investigation and would impede the prospects of
unearthing all the ramifications involved in a conspiracy. Public interest
also would suffer as consequence. Reference was invited to State of
A.P. v. Bimal Krishna Kundu29 in this context. Likewise, attention of
the court was invited to Muraleedharan v. State of Kerala30 which
held that “Custodial interrogation of such an accused is
indispensably necessary for the investigating agency to unearth all
the links involved in the criminal conspiracies committed by the
person which ultimately led to the capital tragedy.” It was highlighted
that statements made during custodial interrogation are qualitatively more
291997 (8) SCC 104
302001 (4) SCC 638
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relevant to those made otherwise. Granting an unconditional order of
anticipatory bail would therefore thwart a complete and objective
investigation.
37. Mr. Aman Lekhi, learned Additional Solicitor General, urged
that the general drift of reasoning in Sibbia was not in favour of a
generalized imposition of conditions- either as to the period (in terms of
time, or in terms of a specific event, such as filing of charge sheet)
limiting the grant of anticipatory bail. It was submitted that the text of
Section 439(2) applied per se to all forms of orders- including an order
or direction to release an applicant on bail (i.e. grant of anticipatory
bail), upon the court’s satisfaction that it is necessary to do so. Such
order (of cancellation, under Section 439(2) or direction to arrest) may
made be where the conditions made applicable at the time of grant of
relief, are violated or not complied with, or where the larger interests of
a fair investigation necessitate it.
Analysis and Conclusions
Re Point No 1: Whether the protection granted to a person
under Section 438, CrPC should be limited to a fixed period
so as to enable the person to surrender before the Trial
Court and seek regular bail
38. The concept of bail, i.e. preserving the liberty of citizen –
even accused of committing offences, but subject to conditions, dates
back to antiquity. Justinian I in the collections of laws and interpretations
which prevailed in his
times, Codex Justinianus (or ‘Code Jus’) in
Book 9 titled Title 3(2) stipulated that “no accused person shall under
any circumstances, be confined in prison before he is convicted”.
The second example of a norm of the distant past is the Magna Carta
which by clause 44 enacted that “people who live outside the forest
need not in future appear before the Royal Justices of the forest in
answer to the general summons unless they are actually involved in
proceedings or are sureties for someone who has been seized for a
forest offence.” Clear Parliamentary recognition of bail took shape in
later enactments in the UK through the Habeas Corpus Act 1677 and
the English Bill of Rights, 1689 which prescribed that “excessive bail
ought not to be required, nor excessive fines imposed, nor cruel
and unusual punishments inflicted”.
39. Bail ipso facto has not been defined under the Code. It is
now widely recognized as a norm which includes the governing principles
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enabling the setting of accused person on liberty subject to safeguards,
required to make sure that he is present whenever needed. The
justification for bail (to one accused of commission or committing a crime
is that it preserves a person who is under cloud of having transgressed
law but not convicted for it, from the rigors of a detention.
40. Section 438 of the Cr.PC provides for the issuance of directions
for the grant of bail to a person apprehending arrest. The Cr.PC of 1973
replaced the old code of 1898. The old code did not provide for any
corresponding provision to Section 438 of the code of 1973. Under the
old code, there was a sharp difference of opinion amongst the various
High Courts on the question as to whether courts had the inherent power
to pass an order of bail in anticipation of arrest. The predominant position
was that courts did not have such a power. Subsequently, the need for
various amendments to make the code more comprehensive resulted in
the enactment of the Code of Criminal Procedure in 1973. Interestingly,
Section 438 does not expressly use the term “anticipatory bail”; its
language instead empowers the concerned to court to issue directions
for grant of bail.
41. The Law Commission of India, in its 41st Report of 1969,
noted that the necessity for granting anticipatory bail arises mainly due
to influential persons attempting to implicate their rivals in false cases, or
disgracing them by getting them detained in jail. The
report further noted
that apart from false cases, where there are reasonable grounds for
holding that a person accused of an offence is not likely to abscond, or
otherwise misuse his liberty while on bail, there seems to be no justification
to require him first to submit to custody, remain in prison for some days
and then apply for bail. The report recommended that a provision be
included for the direction to grant bail in such cases, and that this power
vest in the High Courts and Courts of Session only. The report, however,
did not include the conditions for grant of anticipatory bail in the suggested
language for the provision. Certain conditions that courts may include
were, however included in the provision that was enacted as Section
438 of the Cr.PC, 1973.
42. The term ‘anticipatory bail’ finds no place in the Cr.PC itself
but was used by the Law Commission of India in its 41st Report. The
term was used to convey that it was an application for bail in anticipation
of arrest, i.e., before the arrest itself is made. Grant of bail, according to
Wharton’s Law Lexicon, and as noticed in Sibbia (supra), means to
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“set at liberty a person arrested or imprisoned, on security being
taken for his appearance”. Sibbia, observed thus:
“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 CrPC 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.
43. In Sibbia (supra), this Court considered the specific question
of whether the power to grant
anticipatory bail under Section 438 is
limited to contingencies such as the possibility that the police may use
their investigative powers to humiliate the person sought to be arrested,
or pervert the course of justice and abuse their powers of investigation.
One of the arguments raised in Sibbia, as also in the present case, was
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 case. The State, on the other hand, argued that the grant of
anticipatory bail should at least be conditional upon the bail applicant
showing that he is likely to be arrested for an ulterior motive - that the
proposed charges are baseless or motivated by malafides. The State
also argued that anticipatory bail is an extraordinary remedy and therefore,
whenever it appears that the proposed accusations are prima facie
plausible, the applicant should be left to the ordinary remedy of applying
for bail under Section 437 or Section 439 of the Cr.PC, after being
arrested.
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44. Counsel for the appellants in Sibbia, on the other hand, argued
that since the denial of bail amounts to deprivation of personal liberty,
courts should lean against the imposition of unnecessary restrictions on
the scope of Section 438, when no such restrictions are prescribed by
the legislature under that provision. The Court observed that Section
438(1) is couched in broad and unqualified terms and was of the opinion
that such broad language ought not to be infused with restraints and
conditions which the legislature itself did not think proper or necessary
to impose. The court laid emphasis on the primacy of the presumption of
innocence in criminal jurisprudence, and observed that Section 438 was
not enacted on a clean slate, but rather within the context of the existing
provisions, Sections 437 (dealing with the power of courts other than the
Court of Session and the High Court to grant bail in nonbailable cases)
and Section 439 (which deals with the “special powers” of the High
Court and the Court of Session regarding bail). In the light of the relevant
extracts of Sibbia, it would now be worthwhile to recount the relevant
observations on the issue. The discussion and conclusions in Sibbia are
summarized as follows:
45. (i) Grant of an order of unconditional anticipatory bail would
be “plainly contrary to the very terms of Section 438.” Even though
the terms of Section 438(1) confer discretion, Section 438(2) “confers
on the court the power to
include such conditions in the direction
as it may think fit in the light of the facts of the particular case,
including the conditions mentioned in clauses (i) to (iv) of that sub-
section.”
(ii) Grant of an order under Section 438(1) does not per se hamper
investigation of an offence; Section 438(1)(i) and (ii) enjoin that an
accused/applicant should co-operate with investigation. Sibbia (supra)
also stated that courts can fashion appropriate conditions governing bail,
as well. One condition can be that if the police make out a case of likely
recovery of objects or discovery of facts under Section 27 (of the
Evidence Act, 1872), the accused may be taken into custody. Given that
there is no formal method prescribed by Section 46 of the Code if recovery
is made during a statement (to the police) and pursuant to the accused
volunteering the fact, it would be a case of recovery during “deemed
arrest” (Para 19 of Sibbia).
(iii) The accused is not obliged to make out a special case for
grant of anticipatory bail; reading an otherwise wide power would fetter
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the court’s discretion. Whenever an application (for relief under Section
438) is moved, discretion has to be always exercised judiciously, and
with caution, having regard to the facts of every case. (Para 21, Sibbia).
(iv)  While the power of granting anticipatory bail is not ordinary,
at the same time, its use is not confined to exceptional cases (Para 22,
Sibbia).
(v) It is not justified to require courts to only grant anticipatory
bail in special cases made out by accused, since the power is
extraordinary, or that several considerations – spelt out in Section 437-
or other considerations, are to be kept in mind. (Para 24-25, Sibbia).
(vi) Overgenerous introduction (or reading into) of constraints on
the power to grant anticipatory bail would render it Constitutionally
vulnerable. Since fair procedure is part of Article 21, the court should
not throw the provision (i.e. Section 438) open to challenge “by reading
words in it which are not to be found therein.” (Para 26).
(vii) There is no “inexorable rule” that anticipatory bail cannot be
granted unless the applicant is the target of mala fides. There are several
relevant considerations to be factored in, by the court, while considering
whether to grant or refuse anticipatory bail. Nature and seriousness of
the proposed charges, the context of the events likely to lead to the
making of the charges, a reasonable possibility of the accused’s presence
not being secured
during trial; a reasonable apprehension that the
witnesses might be tampered with, and “the larger interests of the public
or the state” are some of the considerations. A person seeking relief (of
anticipatory bail) continues to be a man presumed to be innocent. (Para
31, Sibbia).
(viii) There can be no presumption that any class of accused- i.e.
those accused of particular crimes, or those belonging to the poorer
sections, are likely to abscond. (Para 32, Sibbia).
(ix) Courts should exercise their discretion while considering
applications for anticipatory bail (as they do in the case of bail). It would
be unwise to divest or limit their discretion by prescribing “inflexible
rules of general application.”. (Para 33, Sibbia).
(x) The apprehension of an applicant, who seeks anticipatory bail
(about his imminent or possible arrest) should be based on reasonable
grounds, and rooted on objective facts or materials, capable of
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examination and evaluation, by the court, and not based on vague un-
spelt apprehensions. (Para 35, Sibbia).
(xi) The grounds for seeking anticipatory bail should be examined
by the High Court or Court of Session, which should not leave the question
for decision by the concerned Magistrate. (Para 36, Sibbia).
(xii)  Filing of FIR is not a condition precedent for exercising
power under Section 438; it can be done on a showing of reasonable
belief of imminent arrest (of the applicant). (Para 37, Sibbia).
(xiii) Anticipatory bail can be granted even after filing of an FIR-
as long as the applicant is not arrested. However, after arrest, an
application for anticipatory bail is not maintainable. (Para 38-39, Sibbia).
(xiv) A blanket order under Section 438, directing the police to not
arrest the applicant, “wherever arrested and for whatever offence”
should not be issued. An order based on reasonable apprehension relating
to specific facts (though not spelt out with exactness) can be made. A
blanket order would seriously interfere with the duties of the police to
enforce the law and prevent commission of offences in the future. (Para
40-41, Sibbia).
(xv) The public prosecutor should be issued notice, upon considering
an application under Section 438; an ad interim order can be made.The
application “should be re-examined in the light of the respective
contentions of the parties.” The ad interim order too must conform to
the requirements of the section and
suitable conditions should be imposed
on the applicant even at that stage. “Should the operation of an order
passed under Section 438(1) be limited in point of time? Not
necessarily. The court may, if there are reasons for doing so, limit
the operation of the order to a short period until after the filing of
an FIR in respect of the matter covered by the order. The applicant
may in such cases be directed to obtain an order of bail under
Section 437 or 439 of the Code within a reasonably short period
after the filing of the FIR as aforesaid. But this need not be followed
as an invariable rule. The normal rule should be not to limit the
operation of the order in relation to a period of time.” (Para 42,
Sibbia).
46. It is quite evident, therefore, that the pre-dominant thinking of
the larger, Constitution Bench, in Sibbia (supra), was that given the
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premium and the value that the Constitution and Article 21 placed on
liberty- and given that a tendency was noticed, of harassment – at times
by unwarranted arrests, the provision for anticipatory bail was made. It
was not hedged with any conditions or limitations- either as to its duration,
or as to the kind of alleged offences that an applicant was accused of
having committed. The courts had the discretion to impose such
limitations (like co-operation with investigation, not tampering with
evidence, not leaving the country etc) as were reasonable and necessary
in the peculiar circumstances of a given case. However, there was no
invariable or inflexible rule that the applicant had to make out a special
case, or that the relief was to be of limited duration, in a point of time, or
was unavailable for any particular class of offences.
47. At this stage, it would be essential to clear the air on the
observations made in some of the later cases about whether Section 438
is an essential element of Article 21. Some judgments, notably Ram Kishna
Balothia & Anr. (supra) and Jai Prakash Singh v State of Bihar31
held that the provision for anticipatory bail is not an essential ingredient
of Article 21, particularly in the context of imposition of limitations on the
discretion of the courts while granting anticipatory bail, either limiting
the relief in point of time, or some other restriction in respect of the
nature of the
offence, or the happening of an event. We are afraid, such
observations are contrary to the broad terms of the power declared by
the Constitution Bench of this court in Sibbia (supra). The larger bench
had specifically held that an “over-generous infusion of constraints
and conditions which are not to be found in Section 438 can make
its provisions constitutionally vulnerable since the right to personal
freedom cannot be made to depend on compliance with
unreasonable restrictions.”
48. In Gudikanti Narasimhulu v. Public Prosecutor32 this court
observed that
“. … Personal liberty, deprived when bail is refused, is too
precious a value of our constitutional system recognised under
Article 21 that the curial power to negate it is a great trust
exercisable, not casually but judicially, with lively concern
for the cost to the individual and the community. To glamorise
31 2012 (4) SCC 379
32 1978 (1) SCC 240
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impressionistic orders as discretionary may, on occasions,
make a litigative gamble decisive of a fundamental right. After
all, personal liberty of an accused or convict is fundamental,
suffering lawful eclipse only in terms of “procedure
established by law”.
49. The reason for enactment of Section 438 in the Code was
Parliamentary acceptance of the crucial underpinning of personal liberty
in a free and democratic country. Parliament wished to foster respect
for personal liberty and accord primacy to a fundamental tenet of criminal
jurisprudence, that everyone is presumed to be innocent till he or she is
found guilty. Life and liberty are the cherished attributes of every
individual. The urge for freedom is natural to each human being. Section
438 is a procedural provision concerned with the personal liberty of each
individual, who is entitled to the benefit of the presumption of innocence.
As 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 not imposed by the legislature. In
Sibbia, it was observed that:
“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 accusations, likely or
unlikely.”
50. The interpretation of Section 438- that it does not encapsulate
Article 21, is erroneous. This court is of the opinion that the
issue is not
whether Section 438 is an intrinsic element of Article 21: it is rather
whether that provision is part of fair procedure. As to that, there can be
no doubt that the provision for anticipatory bail is pro-liberty and enables
one anticipating arrest, a facility of approaching the court for a direction
that he or she not be arrested; it was specifically enacted as a measure
of protection against arbitrary arrests and humiliation by the police, which
Parliament itself recognized as a widespread malaise on the part of the
police.
51. The forty first and forty-eight reports of the Law Commission
were noticed by this court in Sibbia (supra). Thereafter, the Law
Commission, in its 154th report had occasion to deal with the subject; it
recommended no substantial change, - except procedural additions to
Section 438 and observed as follows:
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“18. In the various workshops diverse views were expressed
regarding the retention or deletion of the provision of
anticipatory bail. One view is that it is being misused by
affluent and influential sections of accused in society and
hence, be deleted from the Code. The other view is that it is a
salutary provision to safeguard the personal liberty and
therefore be retained. Misuse of the same in some instances
by itself cannot be a ground for its deletion. However, some
restraints may be imposed in order to minimise such misuse.
We are, however, of the opinion that the provision contained
under S. 438 regarding anticipatory bail should remain in
the Code but subject to the amendments suggested in cl. 43
of the Code of Criminal Procedure (Amendment) Bill, 1994
which lays down adequate safeguards.”33
33 The relevant extract of Clause 43 of the proposed 1994 amendment read as
follows:
“In S. 438 of the principal Act for sub-s. (1), the following sub-sections shall be
substituted, namely:
(1) Where any person has reason to believe that he may be arrested on accusation
of having committed a non-bailable offence, he may apply to the High Court or
the Court of Session for a direction under this section that in the event of such
arrest, he shall be released on bail; and that Court may, after taking into
consideration, inter alia, the following factors, namely:
(i) the nature and gravity of the accusation;
(ii) the
antecedents of the applicant including the fact as to whether he has
previously undergone imprisonment on conviction by a Court in respect
of any cognizable offence;
(iii) the possibility of the applicant to flee from justice; and
(iv) where the accusation has been made with the objection of injuring or
humiliating the applicant by having him so arrested,
either reject the application forthwith or issue an interim order for the grant of
anticipatory bail:
Provided that, where the High Court or, as the case may be, the Court of
Session, has not passed any interim order under this sub-section or has rejected
the application for grant of anticipatory bail, it shall be open to an officer-in-
charge of a police station to arrest, without warrant the applicant, if there are
reasonable grounds for such arrest.
(1-A) Where the Court grants an interim order under sub-s. (1), it shall forthwith
cause a notice being not less than seven days notice, together with a copy of such
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order to be served on the Public Prosecutor and the Superintendent of Police,
with a view to give the Public Prosecutor a reasonable opportunity of being
heard when the application shall be finally heard by the Court.
(1-B) The presence of the applicant seeking anticipatory bail shall be obligatory
at the time of final hearing of the application and passing of final order by the
Court, if on an application made to it by the Public Prosecutor, the Court
considers such presence necessary in the interest of justice.”
34 One hundred and seventy seventh [177th] Report, submitted in December 2001 (Law
Commission of India, 177th Report, Annexure-III para1.8 said that:
“Misuse of power of arrest:- Notwithstanding the safeguards contained in the Code of
Criminal Procedure and the Constitution referred to above, the fact remains that the
power of arrest is wrongly and illegally exercised in a large number of cases all over
the country. Very often this power is utilized to extort monies and other valuable prop-
erty or at the instance of an enemy of the person arrested. Even in case of civil dispute,
this power is being resorted to on the basis of a false allegation against a party to a civil
dispute at the instance of his opponent. The vast discretion given by the CrPC to arrest
a person even in the case of a bailable offence (not only where the bailable offence is
cognizable but also where it is non-cognizable) and the further power to make preven-
tive arrests
(e.g. under Section151 of the CrPC and the several city police enactments),
clothe the police with extraordinary power which can easily be abused. Neither there is
any inhouse mechanism in the police department to check such misuse or abuse nor
does the complaint of such misuse or abuse to higher police officers bear fruit except in
some exceptional cases. We must repeat that we are not dealing with the vast discretion-
ary powers of the members of a service which is provided with firearms, which are
becoming more and more sophisticated with each passing day (which is technically
called a civil service for the purposes of Service Jurisprudence) and whose acts touch
upon the liberty and freedom of the citizens of this country and not merely their entitle-
ments and properties.
Interestingly, the 177th report of the Law Commission lamented
that the power of arrest was being misused by police in a widespread
manner.34
52. The persistence of the phenomena unwarranted arrests was
sharply criticised by this court in Arnesh Kumar(supra), saying that the
approach of the police continued to be colonial despite six decades of
independence, that the power of arrest is
“…is largely considered as a tool of harassment, oppression
and surely not considered a friend of public. The need for
caution in exercising the drastic power of arrest has been
emphasized time and again by Courts but has not yielded
desired result. Power to arrest greatly contributes to its
arrogance so also the failure
of the Magistratcy to check it.
Not only this, the power of arrest is one of the lucrative sources
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of police corruption. The attitude to arrest first and then
proceed with the rest is despicable. It has become a hand tool
to the police officers who lack sensitivity or act with oblique
motive.”
The latest report of the Law Commission35 notes that “67 per
cent of the prison population is awaiting trial in India”. Therefore,
the need for a provision to ensure anticipatory bail, is as crucial, as it
was at the time of its introduction, and at the time Sibbia (supra) was
decided.
53. Various reasons- given in judgments, rendered after Sibbia
(supra), starting with Salauddin (supra), have highlighted that
anticipatory bail orders have to be constrained by conditions, notably
with reference to time (i.e. three months, etc) or till the happening of a
certain event. The reasons, and observations, limiting the duration of
grant of anticipatory bail are outlined below:
(1) “such anticipatory bail orders should be of a limited
duration only and ordinarily on the expiry of that duration
or extended duration the court granting anticipatory bail
should leave it to the regular court to deal with the matter on
an appreciation of evidence placed before it after the
investigation has made progress or the charge-sheet is
submitted”. (Saluddin and K.L. Verma, supra).
(2) An order of anticipatory bail can be granted in cases of “serious
nature as for example murder”. Consequently, its duration should
“be limited and ordinarily the Court
granting anticipatory
bail should not substitute itself for the original Court which
is expected to deal with the offence.”(Salauddin [supra])
(3) Custodial interrogation of “accused is indispensably
necessary for the investigating agency” to unearth materials
in criminal conspiracies (Ref. to unearth all the links involved
in the criminal conspiracies” (Bimal Krishna Kundu and
Muraleedharan, [supra])
(4) Imposing time limits (till filing of FIR, or filing of charge-sheet
etc) would enable the court- which is seized of the main case and
monitors it, to consider the nature and gravity of the offence, having
regard to the fresh materials unearthed and included as prosecution
35 268th Report, 2017.
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evidence. Therefore, it would be salutary and in public interest to
require courts to impose time limits for the life of orders of
anticipatory bail the event of filing of FIR or charge sheet, are
essential ingredients to an order under Section 438. (Salauddin,
K.L. Verma, and Adri Dharan Das). Some decisions have also
stressed that economic offences need a different approach and
therefore, anticipatory bail should not be granted readily.36
54. A fuller consideration of the various decisions cited earlier,
especially those which emphasized the need to limit the life of an order
of anticipatory bail, are premised on the understanding that the grant of
an unconditional order of bail would thwart investigation. In the first
place, this premise is unfounded, given that Sibbia (supra) stated (in
para 13, SCC reports) that such an order would be “contrary to the
terms” of Section 438; and furthermore, that conditions mentioned in
Section 438(2) could be imposed while granting anticipatory bail. Here,
one is conscious of the fact that the requirement of imposing conditions
is not compulsive (noticing the use of the term “may” which precedes
the requirement of imposing conditions). Nevertheless, an unconditional
order, in the sense of an order not even imposing conditions mentioned in
Section 438(2) can impede or hamper investigation, Sibbia (supra) held
that the conditions mentioned in that provision should be imposed. This
requirement is more a matter of
prudence, while granting relief.
36 In P. Chidambaram v. Directorate of Enforcement, (2019) 9 SCC 24 it was held as
follows:
“However, the court must also keep in view that a criminal offence is not just an offence
against an individual, rather the larger societal interest is at stake. Therefore, a delicate
balance is required to be established between the two rights—safeguarding the personal
liberty of an individual and the societal interest…..
83. Grant of anticipatory bail at the stage of investigation may frustrate the investigating
agency in interrogating the accused and in collecting the useful information and also the
materials which might have been concealed. Success in such interrogation would elude
if the accused knows that he is protected by the order of the court. Grant of anticipatory
bail, particularly in economic offences would definitely hamper the effective investigation.
Having regard to the materials said to have been collected by the respondent Enforcement
Directorate and considering the stage of the investigation, we are of the view that it is
not a fit case to grant anticipatory bail.”
The court cited other previous decisions, i.e. State v. Anil Sharma (1997) 7 SCC 187;
Sudhir v. State of Maharashtra 2016 (1) SCC 146; and Directorate of Enforcement v.
Hassan Ali Khan (2011) 12 SCC 684.
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55. This court cannot lose sight of the fact that the Law
Commission’s 41st and 48th report focused on the need to introduce the
provision (for anticipatory bail) as a preventive, or curative measure, to
deal with a particular problem, i.e. unwarranted arrests. Sibbia (supra)
noticed this fact, and also that significantly, Section 438 is not hedged
with any obligation on the court’s power, to impose conditions. That
situation remains unchanged: the provision remains unaltered-at least
substantially (barring an amendment in 2005 which obliged the issuance
of notice to the public prosecutor before issuing any order for anticipatory
bail)37. The 203rd Report of the Law Commission, which reviewed the
entire law on the subject and noticed later decisions, such as Salauddin,
Adari Narain Das, etc, recommended no change in law on this aspect
relating to conditions. In this background, it is important to notice that the
only bar, or restriction, imposed by Parliament upon the exercise of the
power (to grant anticipatory bail) is by way of a positive restriction, i.e.
in the case where accused are alleged to have committed offences
punishable underSection 376(3) or Section 376AB or Section 376DA or
Section 376DB of the Indian Penal Code. In other words, Parliament
37 The amendment, i.e. Criminal Procedure Code (Amendment) Act, 2005 – which has
till now, not been brought into force, reads as follows:
[“(1) Where any person has
reason to believe that he may be arrested on
accusation of having committed a non- bailable offence, he may apply to the
High Court or the Court of Session for a direction under this section;  that in the
event of such arrest, he shall be released on bail and the Court may after taking
into consideration inter- alia the following factors namely.
(i)  the nature and gravity of the accusation
(ii) the antecedents of the applicant including the fact as to whether he has
previously undergone imprisonment on conviction by a Court in respect of any
cognizable offence
(iii) the possibility of the applicant to flee from justice and
(iv) where the accusation has been made with the object of injuring or humiliating
the applicant by having him so arrested,
either reject the application forthwith or issue an interim order for the grant of
anticipatory bail.
Provided that where the High Court or as the case may be the Court of Session
has not passed any interim order under this sub-section or has rejected the
application for grant of anticipatory bail it shall be open to an officer in charge
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of police station to arrest without warrant the applicant on the basis of the
accusation apprehended in such application
(IA) Where the Courts grants an interim order under sub-section (1), it shall
forthwith cause a notice being not less than seven days notice, together with the
copy of such order to be served on the Public Prosecutor and the Superintendent
of Police, with a view to give the Public Prosecutor a reasonable opportunity of
being heard when the application shall be finally heard by the Court
(IB) The presence of the applicant seeking anticipatory bail shall be obligatory
at the time of final hearing of the application and passing of final order by the
Court, if on an application made to it by the Public Prosecutor, the Court
considers such presence necessary in the interest of justice.]
has now denied jurisdiction of the courts (i.e. Court of Session and High
Courts) from granting anticipatory bail to those accused of such offences.
The amendment (Code of Criminal Procedure Amendment Act, 2018)
introduced Section 438(4)) reads as follows:
“(4) Nothing in this section shall apply to any case involving
the arrest of any person on accusation of having committed
an offence under sub-section (3) of section 376 or section
376AB or section 376DA or section 376DB of the Indian Penal
Code.”
56. Clearly, therefore, where the Parliament wished to exclude or
restrict the power of courts, under Seciton 438 of the Code, it did so in
categorical terms.
Parliament’s omission to restrict the right of citizens,
accused of other offences from the right to seek anticipatory bail,
necessarily leads one to assume that neither a blanket restriction can be
read into by this court, nor can inflexible guidelines in the exercise of
discretion, be insisted upon- that would amount to judicial legislation.
57. Turning now to the various concerns that impelled this court in
Salauddin, K.L. Verma, Sunita Devi; Nirmal Jeet Kaur and Adri
Dharan Das, HDFC Bank, J.J. Manan(supra) and other decisions
which outlined the various concerns and problems faced by the
prosecuting agency, or the police, or that competent courts would be
deprived of oversight, thus, leading to directions that courts should impose
time restrictions, or grant temporary or limited bail (e.g. filing of charge
sheet etc.), this court proposes to deal with such reasoning hereafter.
58. The various reasons which led to the imposition of restrictions
or limitations by the decisions noted previously, hinge upon factors such
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as: addition of graver offences which the applicant is alleged to have
committed after the grant of anticipatory bail; unearthing of facts
disclosing his or her complicity in serious offences, as for instance, a
conspirator or kingpin; the accused’s non-cooperation in the course of
investigation, (such as, for example, difficulty in securing his person,
evasion by him, reluctance to answer questions during the investigation
or providing statements for purposes of recovery of articles in terms of
Section 27 of the Evidence Act); involvement in very serious or grave
offences such as murder, kidnapping, causing death under unusual
circumstances and offences which undermine the economy; disclosure
of information that the offence involves large scale fraud and several
individuals or victims, and, the filing of charge-sheet. Each of or all of
them put together, in the opinion of the court, neither hold insurmountable
problem, nor are unforeseen situations or not anticipated in Sibbia
(supra).
59. The controlling expressions under Section 438(2) spell out
three distinct conditions, which the court granting anticipatory bail can
include as directions. These are- that the applicant makes himself available
for interrogation by police officer, as and when required; that such applicant
should not directly or indirectly make any inducement, threat or promise
to any person acquainted with the facts of the case so as to dissuade
him
from disclosing such facts to the court or to any police officer; a
condition that the person should not leave India without the permission
of the court. Further conditions as may be deemed essential, may also
be imposed by the court, under Section 437(3). The Court in Sibbia
(supra) was alive to the necessity of imposing conditions as is evident
from para 13 of its judgment. The court observed that there was nothing
in law which stated that whenever anticipatory bail is granted, it should
be without imposing any of those conditions. Sibbia (supra) went on to
state that such unconditional orders would be plainly contrary to the
very terms of Section 438. The court also noted that though couched in
discretionary terms, which means that the courts could impose those
conditions, perhaps viewed pragmatically, they should do so. What this
court in Sibbia (supra) was concerned with, and cautioned other courts
against was that the process of construction and interpretation ought not
to compel the courts to “cut down by reading into the statute conditions
which are not to be found therein.”
60. The context and nature which Sibbia (supra) considered is
that discretion ought to be exercised by the Full Bench judgment of the
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Punjab and Haryana High Court which cautioned that the power to grant
anticipatory bail should be used sparingly and in exceptional cases and
that all conditions under Section 437 should be read into in Section 438.
Furthermore, the High Court had required that an applicant ought to
make out a special case for grant of anticipatory bail; it was also stated
that in cases wherever remand was sought, or a reasonable cause to
secure incriminating material in terms of Section 27 of the Evidence Act
could be made out, anticipatory bail ought not to be granted and that it
could not be granted in regard to offences punishable with death or
imprisonment for life unless the court is satisfied that the charge was
false or groundless. The court in Sibbia (supra) frowned upon imposition
of such rules after interpreting and in the course of the judgment held
that the power to grant anticipatory bail is wide and that the discretion is
not limited in the manner that the High Court suggested. At the same
time, this court also emphasized that the discretion had to be exercised
while granting or refusing to grant in given cases on due application of
mind and in a judicious manner.
61. The imposition of conditions under Section 438(2) with
reference to Section 437(3), in the opinion of this court, is enough safeguard
for the authorities – including the police and other investigating agencies,
who have to investigate into crimes and the possible complicity of the
applicants
who seek such relief. Taking each concern, i.e. the addition
of more serious offences; presence of a large number of individuals or
complainants; possibility of non-cooperation - non-cooperation in the
investigation or the requirement of the accused’s statement to aid the
recovery of articles and incriminating articles in the course of statements
made during investigations – it is noticeable, significantly, that each of
these is contemplated as a condition and is invariably included in every
order granting anticipatory bail. In the event of violation or alleged violation
of these, the concerned authority is not remediless; recourse can be had
to Section 438(2) read with Section 437(3). Any violation of these terms
would attract a direction to arrest him. This power or direction to arrest
is found in Section 437(5). However, that provision has no textual
application to regular bail granted by the Court of Sessions or High Courts
under Section 439 or directions not to arrest, i.e. order of anticipatory
bail under Section 438. Secondly, Section 439(2) which is cast in wide
terms, adequately covers situations when an accused does not cooperate
during the investigation or threatens to, or intimidates witness[es] or
tries to tamper with other evidence.
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62. It is important to notice, here that there is nothing in the
provisions of Section 438 which suggests that Parliament intended to
restrict its operation, either as regards the time period, or in terms of the
nature of the offences in respect of which, an applicant had to be denied
bail, or which special considerations were to apply. In this context, it is
relevant to recollect that the court would avoid imposing restrictions or
conditions in a provision in the absence of an apparent or manifest
absurdity, flowing from the plain and literal interpretation of the statute
(Ref Chandra Mohan v. State of Uttar Pradesh & Ors38). In Reserve
Bank of India v. Peerless General Finance and Investment Co. Ltd.
& Ors39, the relevance of text and context was emphasized in the
following terms:
“Interpretation must depend on the text and the context. They
are the bases of interpretation. One may well say if the text is
the texture, context is what gives the colour. Neither can be
ignored. Both are important. That interpretation is best which
makes the textual interpretation match the contextual. A statute
is best interpreted when we know why it was enacted. With
this knowledge, the statute must be read, first as a whole and
then Section by section, Clause by clause, phrase by phrase
and word by word. If a statute is looked at, in the context of
its enactment, with the glasses of the statute-maker, provided
by such context, its
scheme, the sections, clauses, phrases
and words may take colour and appear different than when
the statute is looked at without the glasses provided by the
context. With these glasses we must look at the Act as a whole
and discover what each section, each clause, each phrase
and each word is meant and designed to say as to fit into the
scheme of the entire Act. No part of a statute and no word of
a statute can be construed in isolation. Statutes have to be
construed so that every word has a place and everything is in
its place.
63. Likewise, in Directorate of Enforcement v Deepak
Mahajan40 this court referred to Maxwell on Interpretation of Statutes,
Tenth Edn., to the effect that if the ordinary meaning and grammatical
381967 (1) SCR 77
391987 (1) SCC 424
401994 (3) SCC 440
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construction, “leads to a manifest contradiction of the apparent
purpose of the enactment, or to some inconvenience or absurdity,
hardship or injustice, presumably not intended, a construction may
be put upon it which modifies the meaning of the words…”
64. This court, long back, in State of Haryana & Ors. v. Sampuran
Singh & Ors41. observed that by no stretch of imagination a Judge is
entitled to add something more than what is there in the statute by way
of a supposed intention of the legislature. The cardinal principle of
construction of statute is that the true or legal meaning of an enactment
is derived by considering the meaning of the words used in the enactment
in the light of any discernible purpose or object which comprehends the
mischief and its remedy to which the enactment is directed. It is sufficient,
therefore to notice that when Section 438 – in the form that exists today,
(which is not substantially different from the text of what was introduced
when Sibbia was decided, except the insertion of sub-section (4)) was
enacted, Parliament was aware of the objective circumstances and
prevailing facts, which impelled it to introduce that provision, without the
kind of conditions that the state advocates to be intrinsically imposed in
every order under it.
65. The narrower interpretation preferred by this Court - in line of
decisions starting with Salauddin (supra) highlighting the concerns with
respect to the stages of investigation and enquiry
and the nature and
seriousness of the offence, in the opinion of the Court, ought not to lead
one to cutting down the amplitude and the power and discretion otherwise
available with the Courts. The danger of this Court prescribing the
limitations is that they become inflexible rules or edicts incapable of
deviation. Instead, it would be safer to say that where there are
circumstances or facts which pose peculiar problems or complexities
pointing to the seriousness of an offence which the accused is implicated
in, it is always open to courts (which have to deal with applications
under Section 438) to impose the needed restrictions – be that in point of
time or at the stage of investigation or enquiry. Each of these peculiar
conditions may be imposed in the given circumstances of any case,
which has those distinctive or special features. But they should not
always be imposed invariably in all cases. In other words, if this Court
were to weave conditions to impose and read into Section 438 that are
not expressly provided, the danger would be that several applicants who
41 1975 (2) SCC 810
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might otherwise be entitled to relief, would be denied it altogether. For
example, the classification of an offence or a category of offences as
one wanting special treatment where the Courts should not grant relief,
would mean that regardless of the role of the accused and the nature of
materials shown (whether adequate or not), the courts would be rendered
powerless and denuded of the otherwise amplitude of discretion provided
by the statute.
66. As regards the concern expressed on behalf of the state and
the Union- that unconditional orders (i.e. those unrelated to a particular
time frame) would result in non-co-operation of the accused, with the
investigating officer or authority, or that there would be reluctance to
make statements to the prosecution, to assist in the recovery of articles
that incriminate the accused (and therefore can be used under Section
27, Evidence Act), this court perceives such views to be vague and
based apparently pre-conceived notions. If there is non-cooperation by
an accused – in the course of investigation, the remedy of seeking
assistance of the court exists. Moreover, on this aspect too, Sibbia had
envisioned the situation; the court had cited State of U.P. v Deoman
Upadhyaya42, where this court had observed as follows:
“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. 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 in
sufficient. A person directly giving to a police officer by word
of mouth information which may be used as evidence against
him, may be deemed to have submitted himself to the “custody”
of the police officer within the meaning of Section 27 of the
Indian Evidence Act : Legal Remembrancer v Lalit Mohan
Singh ((1921) I.L.R. 49 Cal.167), Santokhi Beldar v. King
Emperor ((1933) I.L.R. 12 Pat. 241). Exceptional cases may
certainly be imagined in which a person may give information
without presenting himself before a police officer who is
investigating an offence. For instance, he may write a letter
42 1961 (1) SCR 14
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and give such information or may send a telephonic or other
message to the police officer.”
This view was reiterated and applied in Vallabhdas Liladhar v
Asst. Collector of Customs43. The observations in Sibbia (supra) are
relevant, and are reproduced again, for facility of reference:
“One of such conditions can even be that in the event of the
police making out a case of a likely discovery under Section
27 of the Evidence Act, person released on bail shall be liable
to be taken in police custody for facilitating the discovery.
Besides, if and when the occasion arises, it may be possible
for the prosecution to claim the benefit of Section 27 of the
Evidence Act in regard to a discovery of facts made in
pursuance of information supplied by a person released on
bail by invoking the principle stated by this Court in State of
U.P. v Deoman Upadhyaya.”
Therefore, the “limited custody” or “deemed custody” to facilitate
the requirements of the investigative authority, would be sufficient for
the purpose of fulfilling the provisions of Section 27, in the event of
recovery of an article, or discovery of a fact, which is relatable to a
statement made during such event (i.e deemed custody). In such event,
there is no question (or necessity) of asking the accused to separately
surrender and seek regular bail.
67. Now, coming to the instruction in some decisions that
anticipatory bail should not be given, or granted with stringent conditions,
upon satisfaction that
the accused is not involved, Sibbia, clearly
disapproved the imposition of such restrictions, or ruling out of certain
offences or adoption of a cautious or special approach. It was held that:
“A close look at some of the rules in the eight-point code
formulated by the High Court will show how difficult it is to
apply them in practice. The seventh proposition says :
“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.”
43 1965 (3) SCR 854
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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 which bail can be granted under Section 437
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(1) of the Code. That section, while conferring the power
to grant bail in cases of non-bailable offences, provides
by way of an exception that a person accused or suspected
of the commission of a non-bailable offence “shall not be
so released” if there appear to be reasonable grounds for
believing that he has been guilty of an offence punishable
with death or imprisonment for life. If it was intended that
the exception contained in Section 437 (1) should govern
the grant of relief under Section 438 (1), nothing would
have been easier for the legislature than to introduce into
the latter section a similar provision. We have already
pointed out the basic distinction between these two sections.
Section 437 applies only after a person, who is alleged to
have committed a non-bailable offence, is arrested or
detained without warrant or appears or is brought before
a court. Section 438 applies before the arrest is made and,
in fact, one of the pre-conditions of its application is that
the person, who applies for relief under it, must be able to
show that he has reason to believe that “he may be
arrested”, which plainly means that he is not yet arrested.
The nexus which this distinction bears with the grant or
refusal of bail is that in cases falling under Section 437,
there is some concrete data on the basis of which it is
possible to show that there appear to be reasonable
grounds for believing that the applicant has been guilty of
an offence punishable with
death or imprisonment for life.
In cases falling under Section 438 that stage is still to arrive
and, in the generality of cases thereunder, it would be
premature and indeed difficult to predicate that there are
or are not reasonable grounds for so believing. The
foundation of the belief spoken of in Section 437 (1), by
reason of which the court cannot release the applicant on
bail is, normally, the credibility of the allegations contained
in the First Information Report.”
68. For the above reasons, the answer to the first question in the
reference made to this bench is that there is no offence, per se, which
stands excluded from the purview of Section 438, - except the offences
mentioned in Section 438 (4). In other words, anticipatory bail can be
granted, having regard to all the circumstances, in respect of all offences.
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At the same time, if there are indications in any special law or statute,
which exclude relief under Section 438 (1) they would have to be duly
considered. Also, whether anticipatory offences should be granted, in
the given facts and circumstances of any case, where the allegations
relating to the commission of offences of a serious nature, with certain
special conditions, is a matter of discretion to be exercised, having regard
to the nature of the offences, the facts shown, the background of the
applicant, the likelihood of his fleeing justice (or not fleeing justice);
likelihood of co-operation or non-co-operation with the investigating
agency or police, etc. There can be no inflexible time frame for which
an order of anticipatory bail can continue.
69. Therefore, this court holds that the view expressed in
Salauddin Abdulsamad Shaikh, K.L. Verma, Nirmal Jeet Kaur, Satpal
Singh, Adri Dharan Das, HDFC Bank, J.J. Manan and Naresh Kumar
Yadav (supra) about the Court of Sessions, or the High Court, being
obliged to grant anticipatory bail, for a limited duration, or to await the
course of investigation, so as the “normal court” not being “bye passed”
or that in certain kinds of serious offences, anticipatory bail should not
be granted normally- including in economic offences, etc are not good
law. The observations – which indicate that such time related or
investigative event related conditions, should invariably be
imposed at
the time of grant of anticipatory bail are therefore, overruled. Similarly,
the observations in Mhetre that “the courts should not impose
restrictions on the ambit and scope of section 438 Cr.P.C. which are
not envisaged by the Legislature. The court cannot rewrite the
provision of the statute in the garb of interpreting it” is too wide and
cannot be considered good law. It is one thing to say that as a matter of
law, ordinarily special conditions (not mentioned in Section 438 (2) read
with Section 437 (3) should not be imposed; it is an entirely different
thing to say that in particular instances, having regard to the nature
of the crime, the role of the accused, or some peculiar feature, special
conditions should not be imposed. The judgment in Sibbia itself is an
authority that such conditions can be imposed, but not in a routine or
ordinary manner and that such conditions then become an inflexible
“formula” which the courts would have to follow. Therefore, courts and
can, use their discretion, having regard to the offence, the peculiar facts,
the role of the offender, circumstances relating to him, his likelihood of
subverting justice (or a fair investigation), likelihood of evading or fleeing
justice- to impose special conditions. Imposing such conditions, would
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have to be on a case to case basis, and upon exercise of discretion by
the court seized of the application under Section 438. In conclusion, it is
held that imposing conditions such as those stated in Section 437 (2)
while granting bail, are normal; equally, the condition that in the event of
the police making out a case of a likely discovery under Section 27 of
the Evidence Act, person released on bail shall be liable to be taken in
police custody for facilitating the discovery. Other conditions, which are
restrictive, are not mandatory; nor is there any invariable rule that they
should necessarily be imposed or that the anticipatory bail order would
be for a time duration, or be valid till the filing of the FIR, or the recording
of any statement under Section 161, Cr. PC, etc. Other conditions may
be imposed, if the facts of the case so warrant.
Re Question No. 2: Whether the life of an anticipatory bail
should end at the time and stage when the accused is
summoned by the court.
70. The question here is whether there is anything in the law
which per se requires that upon filing of the charge-sheet, or the
summoning of the accused, by the court – (or even the addition of an
offence in the charge-sheet, of which an applicant on bail is accused of
freshly), his liberty ought to be forfeited and that he should be asked to
surrender and apply for regular bail. The observations about the width
and amplitude of the power under Section 438, made in answer to
the
first question, are equally relevant here too. In the present context, further,
the judgment and observations of this Court in its interpretation of Section
167(2) are telling. It was held in Gursharan Singh (supra), the release
by grant of bail of an accused under Section 167(2) amounts to “deemed
bail”. This is borne out by Section 167(2) which states that anyone
released on bail under its provision “shall be deemed to be so released
under the provisions of Chapter XXXIII for the purposes of that
Chapter.” The judgment in Aslam Babalal Desai (supra) has clarified
that when an accused is released by operation of Section 167(2) and
subsequently, a charge-sheet is filed, there is no question of the
cancellation of his bail. In these circumstances, the mere fact that an
accused is given relief under Section 438 at one stage, per se does not
mean that upon the filing of a charge-sheet, he is necessarily to surrender
or/and apply for regular bail. The analogy to ‘deemed bail’ under Section
167(2) with anticipatory bail leads this court to conclude that the mere
subsequent event of the filing of a charge-sheet cannot compel the
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accused to surrender and seek regular bail. As a matter of fact,
interestingly, if indeed, if a charge-sheet is filed where the accused is on
anticipatory bail, the normal implication would be that there was no
occasion for the investigating agency or the police to require his custody,
because there would have been nothing in his behavior requiring such a
step. In other words, an accused, who is granted anticipatory bail would
continue to be at liberty when the charge sheet is filed, the natural
implication is that there is no occasion for a direction by the Court that
he be arrested and further that he had cooperated with the investigation.
At the same time, however, at any time during the investigation were
any occasion to arise calling for intervention of the court for infraction
of any of the conditions imposed under Section 437(3) read with Section
438(2) or the violation of any other condition imposed in the given facts
of a case, recourse can always be had under Section 439(2).
71. Section 438 (3) states that when a person is granted anticipatory
bail, is later arrested without warrant by an officer in charge of a police
station “on such accusation”, and is willing to give bail, “he shall be
released on bail; and if a Magistrate taking cognizance of such
offence decides that a warrant should issue in the first instance
against that person he shall issue a bailable warrant in conformity
with the direction of the
Court under sub-section (1)”. The order
granting anticipatory bail, is also- as noticed earlier, and in several previous
decisions, a “direction” under this Section 438 “that in the event of
such arrest” the applicant be released on bail. Therefore, when an
accused in fact is granted bail, and the conditions outlined in Section 438
(2) are included as part of the direction “to release” him in the event of
arrest, all the necessary conditions which he is obliged to follow exist.
Section 438 (3) outlines the steps to be taken, in the event of arrest of
one who has been granted relief under Section 438 (1). In the event
of non-compliance with any or all conditions, imposed by the court, the
concerned agency or the police, a direction can be sought from the court
under Section 439 (2).
72. The view that this court expresses about the prosecution’s
option to apply for a direction to arrest the accused, finds support in
Pradeep Ram (supra) where this court held as follows:
“21. Both Sections 437 (5) and 439 (2) empowers the Court
to arrest an accused and commit him to custody, who has been
released on bail under Chapter XXXIII. There may be numerous
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grounds for exercise of power under 437 (5) and 439 (2).
The principles and grounds for cancelling a bail are well
settled, but in the present case, we are concerned only with
one aspect of the matter, i.e., a case where after accused has
been granted the bail, new and serious offences are added in
the case. A person against whom serious offences have been
added, who is already on bail can very well be directed to be
arrested and committed to custody by the Court in exercise of
power under 437 (5) and 439 (2). Cancelling the bail granted
to an accused and directing him to arrest and taken into
custody can be one course of the action, which can be adopted
while exercising power under 437 (5) and 439 (2), but there
may be cases where without cancelling the bail granted to an
accused, on relevant consideration, Court can direct the
accused to be arrested and committed to custody. The addition
of serious offences is one of such circumstances, under which
the Court can direct the accused to be arrested and committed
to custody despite the bail having been granted with regard
to the offences with which he was charged at the time when
bail was considered and granted.
********
********            ********
25. We may have again to look into provisions of Sections
437 (5) and 439 (2) of Cr.P.C. Sub-section (5) of Sections
437 of Cr.P.C uses expression ‘if it considers it necessary so
to do, direct that such person be arrested and commit him to
custody’. Similarly,
sub-section (2) of Section 439 of Cr.P.C.
provides: ‘may direct that any person who has been released
on bail under this Chapter be arrested and commit him to
custody’. A plain reading of the aforesaid provisions indicates
that provision does not mandatorily provide that the Court
before directing arrest of such accused who has already been
granted bail must necessary cancel his earlier bail. A
discretion has been given to the Court to pass such orders to
direct for such person be arrested and commit him to the
custody which direction may be with an order for cancellation
of earlier bail or permission to arrest such accused due to
addition of graver and non- cognizable offences. Two Judge
Bench judgment in Mithabhai Pashabhai Patel (supra) uses
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the word ‘ordinarily’ in paragraph 18 of the judgment which
cannot be read as that mandatorily bail earlier granted to
the accused has to be cancelled before Investigating Officer
to arrest him due to addition of graver and non-cognizable
offences.
*********
********
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27. Relying on the above said order, learned counsel for the
appellant submits that respondent State ought to get first the
order dated 10.03.2016 granting bail to appellant cancelled
before seeking custody of the appellant. It may be true that
by mere addition of an offence in a criminal case, in which
accused is bailed out, investigating authorities itself may not
proceed to arrest the accused and need to obtain an order
from the Court, which has released the accused on the bail. It
is also open for the accused, who is already on bail and with
regard to whom serious offences have been added to apply
for bail in respect of new offences added and the Court after
applying the mind may either refuse the bail or grant the bail
with regard to new offences. In a case, bail application of the
accused for newly added offences is rejected, the accused
can very well be arrested. In all cases, where accused is bailed
out under orders of the Court and new offences are added
including offences of serious nature, it is not necessary that
in all cases earlier bail should be cancelled by the Court
before granting permission to arrest an accused on the basis
of
new offences. The power under Sections 437 (5) and 439
(2) are wide powers granted to the court by the Legislature
under which Court can permit an accused to be arrested and
commit him to custody without even cancelling the bail with
regard to earlier offences. Sections 437 (5) and 439 (2) cannot
be read into restricted manner that order for arresting the
accused and commit him to custody can only be passed by
the Court after cancelling the earlier bail.
28. Coming back to the present case, the appellant was already
into jail custody with regard to another case and the
investigating agency applied before Special Judge, NIA Court
to grant production warrant to produce the accused before
the Court. The Special Judge having accepted the prayer of
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grant of production warrant, the accused was produced before
the Court on 26.06.2018 and remanded to custody. Thus, in
the present case, production of the accused was with the
permission of the Court. Thus, the present is not a case where
investigating agency itself has taken into custody the
appellant after addition of new offences rather accused was
produced in the Court in pursuance of production warrant
obtained from the Court by the investigating agency. We, thus
do not find any error in the procedure which was adopted by
the Special Judge, NIA Court with regard to production of
appellant before the Court. In the facts of the present case, it
was not necessary for the Special Judge to pass an order
cancelling the bail dated 10.03.2016 granted to the appellant
before permitting the accused appellant to be produced before
it or remanding him to the judicial custody.
29. In view of the foregoing discussions, we arrive at following
conclusions in respect of a circumstance where after grant of
bail to an accused, further cognizable and non-bailable
offences are added:-
(i) The accused can surrender and apply for bail for newly
added cognizable and non-bailable offences. In event of
refusal of bail, the accused can certainly be arrested.
(ii) The investigating agency can seek order from the court
under Sections 437 (5) or 439 (2) for arrest of the accused
and his custody.
(iii) The Court, in exercise of power under Sections 437 (5)
or 439 (2) of Cr.PC.,
can direct for taking into custody the
accused who has already been granted bail after cancellation
of his bail. The Court in exercise of power under Sections
437 (5) as well as 439 (2) can direct the person who has
already been granted bail to be arrested and commit him to
custody on addition of graver and non-cognizable offences
which may not be necessary always with order of cancelling
of earlier bail.
(iv) In a case where an accused has already been granted
bail, the investigating authority on addition of an offence or
offences may not proceed to arrest the accused, but for
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arresting the accused on such addition of offence or offences
it need to obtain an order to arrest the accused from the Court
which had granted the bail.”
73. Earlier, in the decision reported as Dolat Ram v State of
Haryana44 this court had observed that
“bail once granted should not be cancelled in a mechanical
manner without considering whether any supervening
circumstances have rendered it no longer conducive to a fair
trial to allow the accused to retain his freedom by enjoying
the concession of bail during the trial.”
74. This decision was followed, and its ratio applied, in Hazari
Lal Das v State of West Bengal & Anr45. The decision in Bhadresh
Bipinbhai Sheth v. State of Gujarat46 stated, after culling out the
principles in Mhetre, as follows:
“25.6. It is a settled legal position that the court which grants
the bail also has the power to cancel it. The discretion of
grant or cancellation of bail can be exercised either at the
instance of the accused, the Public Prosecutor or the
complainant, on finding new material or circumstances at any
point of time.
25.7. In pursuance of the order of the Court of Session or the
High Court, once the accused is released on anticipatory bail
by the trial court, then it would be unreasonable to compel
the accused to surrender before the trial court and again
apply for regular bail.
25.8. Discretion vested in the court in all matters should be
exercised with care and
circumspection depending upon the
facts and circumstances justifying its exercise. Similarly, the
discretion vested with the court under Section 438 CrPC
should also be exercised with caution and prudence. It is
unnecessary to travel beyond it and subject the wide power
and discretion conferred by the legislature to a rigorous code
of self-imposed limitations.
44 1995 (1) SCC 349
45 2009 (10) SCC 652
46 2016 (1) SCC 152
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25.9. No inflexible guidelines or straitjacket formula can be
provided for grant or refusal of the anticipatory bail because
all circumstances and situations of future cannot be clearly
visualised for the grant or refusal of anticipatory bail. In
consonance with legislative intention, the grant or refusal of
anticipatory bail should necessarily depend on the facts and
circumstances of each case.”
75. The three-judge decision in Sudhir v. Maharastra47 noticed
the decision in Bipin Bhadresh Sheth (supra) and did not disapprove it.
However, the court did not grant relief, given that anticipatory bail was
declined initially, and the application to the High Court was withdrawn,
after which a second anticipatory bail was granted. The High Court
cancelled the grant of relief. This court affirmed the High Court’s view.
In that judgment, Bipin Bhadresh Sheth was noticed, while considering
the scope of the power under Section 439 (2). In another decision, Arvind
Tiwary v. State of Bihar48 the issue was whether the anticipatory bail,
granted subject to certain conditions, earlier, which had been considered
by this court, could be cancelled. The conditions included, inter alia,
that sums were to be secured by bank guarantee. The aggrieved
corporation directed that the “defalcated sum” specified in respect of
every accused should be secured through such guarantee. Upon failure
to comply with that demand, an order of cancellation was sought. This
court held that
cancellation could not be resorted to on the assumption
that the applicants were guilty. Similarly, in Mahant Chand Yogi v. State
of Haryana,49 Padmakar Tukaam Bhavnagare v. State of
Maharastra,50 X v. State of Telangana,51 and several other judgments
the same views were expressed.
76. Therefore, unless circumstances to the contrary: in the form
of behaviour of the accused suggestive of his fleeing from justice, or
evading the authority or jurisdiction of the court, or his intimidating
witnesses, or trying to intimidate them, or violate any condition imposed
while granting anticipatory bail, the law does not require the person to
surrender to the court upon summons for trial being served on him. Subject
to compliance with the conditions imposed, the anticipatory bail given to
47 2016 (1) SCC 146
48 2018 (8) SCC 475
49 2003 (1) SCC 236
50 2012 (13) SCC 720
51 (2018) 16 SCC 511
SUSHILA AGGARWAL v. STATE (NCT OF DELHI)
[S. RAVINDRA BHAT, J.]
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a person, can continue till end of the trial. This answers question No. 2
referred to the present Bench.
Conclusions
77. This court answers the reference in the following manner:
(1) Regarding question No. 1, it is held that the protection
granted under Section 438 Cr. PC should not always or ordinarily
be limited to a fixed period; it should inure in favour of the
accused without any restriction as to time. Usual or standard
conditions under Section 437 (3) read with Section 438 (2)
should be imposed; if there are peculiar features in regard to
any crime or offence (such as seriousness or gravity etc.), it is
open to the court to impose any appropriate condition (including
fixed nature of relief, or its being tied to an event or time bound)
etc.
(2) The second question referred to this court is answered, by
holding that the life of an anticipatory bail does not end generally
at the time and stage when the accused is summoned by the
court, or after framing charges, but can also continue till the
end of the trial. However, if there are any special or peculiar
features necessitating the court to limit the tenure of anticipatory
bail, it is open for it to do so.
78. Having regard to the above discussion, it is clarified that the
court should keep the following points as guiding principles, in dealing
with applications under Section 438, Cr. PC:
(a) As held in Sibbia, when a person apprehends arrest and
approaches a court
for anticipatory bail, his apprehension (of
arrest), has to be based on concrete facts (and not vague or general
allegations) relatable a specific offence or particular of offences.
Applications for anticipatory bail should contain clear and essential
facts relating to the offence, and why the applicant reasonably
apprehends his or her arrest, as well as his version of the facts.
These are important for the court which considering the application,
to extent and reasonableness of the threat or apprehension, its
gravity or seriousness and the appropriateness of any condition
that may have to be imposed. It is not a necessary condition that
an application should be moved only after an FIR is filed; it can be
moved earlier, so long as the facts are clear and there is reasonable
basis for apprehending arrest.
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(b) The court, before which an application under Section 438, is
filed, depending on the seriousness of the threat (of arrest) as a
measure of caution, may issue notice to the public prosecutor and
obtain facts, even while granting limited interim anticipatory
bail.
(c) Section 438 Cr. PC does not compel or oblige courts to impose
conditions limiting relief in terms of time, or upon filing of FIR, or
recording of statement of any witness, by the police, during
investigation or inquiry, etc. While weighing and considering an
application (for grant of anticipatory bail) the court has to consider
the nature of the offence, the role of the person, the likelihood of
his influencing the course of investigation, or tampering with
evidence (including intimidating witnesses), likelihood of fleeing
justice (such as leaving the country), etc. The courts would be
justified – and ought to impose conditions spelt out in Section 437
(3), Cr. PC [by virtue of Section 438 (2)]. The necessity to impose
other restrictive conditions, would have to be weighed on a case
by case basis, and depending upon the materials produced by the
state or the investigating agency. Such special or other restrictive
conditions may be imposed if the case or cases warrant, but should
not be imposed in a routine manner, in all cases. Likewise,
conditions which limit the grant of anticipatory bail may be granted,
if they are required in the facts of any case or cases; however,
such limiting
conditions may not be invariably imposed.
(d) Courts ought to be generally guided by the considerations such
nature and gravity of the offences, the role attributed to the
applicant, and the facts of the case, while assessing whether to
grant anticipatory bail, or refusing it. Whether to grant or not is a
matter of discretion; equally whether, and if so, what kind of special
conditions are to be imposed (or not imposed) are dependent on
facts of the case, and subject to the discretion of the court.
(e) Anticipatory bail granted can, depending on the conduct and
behavior of the accused, continue after filing of the charge sheet
till end of trial. Also orders of anticipatory bail should not be
“blanket” in the sense that it should not enable the accused to
commit further offences and claim relief. It should be confined to
the offence or incident, for which apprehension of arrest is sought,
in relation to a specific incident. It cannot operate in respect of a
future incident that involves commission of an offence.
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[S. RAVINDRA BHAT, J.]
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(f) Orders of anticipatory bail do not in any manner limit or restrict
the rights or duties of the police or investigating agency, to
investigate into the charges against the person who seeks and is
granted pre-arrest bail.
(g) The observations in Sibbia regarding “limited custody” or
“deemed custody” to facilitate the requirements of the investigative
authority, would be sufficient for the purpose of fulfilling the
provisions of Section 27, in the event of recovery of an article, or
discovery of a fact, which is relatable to a statement made during
such event (i.e. deemed custody). In such event, there is no question
(or necessity) of asking the accused to separately surrender and
seek regular bail. Sibbia (supra) had observed that “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.”
(h) It is open to the police or the investigating agency to move the
court concerned, which granted anticipatory bail, in the first
instance, for a direction under Section 439 (2) to arrest the accused,
in the event of violation of any term, such as absconding, non-
cooperating during investigation, evasion, intimidation or inducement
to witnesses with a view to influence
outcome of the investigation
or trial, etc. The court – in this context is the court which grants
anticipatory bail, in the first instance, according to prevailing
authorities.
(i) The correctness of an order granting bail, can be considered
by the appellate or superior court at the behest of the state or
investigating agency, and set aside on the ground that the court
granting it did not consider material facts or crucial circumstances.
(See Prakash Kadam & Etc. Etc vs Ramprasad Vishwanath
Gupta & Anr52; Jai Prakash Singh (supra) State through C.B.I.
vs. Amarmani Tripathi53). This does not amount to “cancellation”
in terms of Section 439 (2), Cr. PC.
(j) The judgment in Mhetre (and other similar decisions)restrictive
conditions cannot be imposed at all, at the time of granting
anticipatory bail are hereby overruled. Likewise, the decision in
52 (2011) 6 SCC 189
53 (2005) 8 SCC 21
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Salauddin and subsequent decisions (including K.L. Verma,
Nirmal Jeet Kaur) which state that such restrictive conditions, or
terms limiting the grant of anticipatory bail, to a period of time are
hereby overruled.
79. In conclusion, it would be useful to remind oneself that the
rights which the citizens cherish deeply, are fundamental- it is not the
restrictions that are fundamental. Joseph Story, the great jurist and US
Supreme Court judge, remarked that “personal security and private
property rest entirely upon the wisdom, the stability, and the integrity
of the courts of justice.”
80. The history of our republic – and indeed, the freedom
movement has shown how the likelihood of arbitrary arrest and indefinite
detention and the lack of safeguards played an important role in rallying
the people to demand independence. Witness the Rowlatt Act, the
nationwide protests against it, the Jallianwalla Bagh massacre and several
other incidents, where the general public were exercising their right to
protest but were brutally suppressed and eventually jailed for long. The
specter of arbitrary and heavy-handed arrests: too often, to harass and
humiliate citizens, and oftentimes, at the interest of powerful individuals
(and not to further any meaningful investigation into offences) led to the
enactment of Section 438. Despite several Law commission reports and
recommendations of several committees and commissions, arbitrary and
groundless arrests continue as a
pervasive phenomenon. Parliament has
not thought it appropriate to curtail the power or discretion of the courts,
in granting pre-arrest or anticipatory bail, especially regarding the duration,
or till charge sheet is filed, or in serious crimes. Therefore, it would not
be in the larger interests of society if the court, by judicial interpretation,
limits the exercise of that power: the danger of such an exercise would
be that in fractions, little by little, the discretion, advisedly kept wide,
would shrink to a very narrow and unrecognizably tiny portion, thus
frustrating the objective behind the provision, which has stood the test of
time, these 46 years.
81. The reference is hereby answered in the above terms.
ARUN MISHRA, INDIRA BANERJEE AND VINEET
SARAN,  JJ.
We have seen the drafts of Justice M.R. Shah and Justice S.
Ravindra Bhat and are in agreement with them. Since there is no
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difference of opinion between the two, we are in agreement with the
reasoning of Justice M.R. Shah and Justice S. Ravindra Bhat that the
conclusions in Shri Gurbaksh Singh Sibbia and others v. State of
Punjab 1980 (2) SCC 565 needs reiteration and further that the restrictive
manner in which Section 438 of the Cr.PC has been interpreted in
Salauddin Abdulsamad Shaikh v. State of Maharashtra 1996 (1)
SCC 667 is incorrect. Therefore, we agree that Salauddin (supra) and
other cases which have followed it needs to be overruled. Similarly, the
wide interpretation in Siddharam Satlingappa Mhetre v. State of
Maharashtra & Ors. 2011 (1) SCC 694, i.e. that no conditions can be
imposed while granting an order of anticipatory bail, is incorrect. Mhetre
(supra) to that extent and other judgments which have followed it are
accordingly overruled.
In view of the said conclusions, we are in agreement with the
answers to the reference made to the larger Bench.
ARUN MISHRA, INDIRA BANERJEE, VINEET SARAN,
M. R. SHAH AND S. RAVINDRA BHAT, JJ.
FINAL CONCLUSIONS:
In view of the concurring judgments of Justice M.R. Shah and of
Justice S. Ravindra Bhat with Justice Arun Mishra, Justice Indira
Banerjee and Justice Vineet Saran agreeing with them, the following
answers to the reference are set out:
(1) Regarding Question No. 1, this court holds that the protection
granted to a person under Section 438 Cr. PC should not invariably be
limited to
a fixed period; it should inure in favour of the accused without
any restriction on time. Normal conditions under Section 437 (3) read
with Section 438 (2) should be imposed; if there are specific facts or
features in regard to any offence, it is open for the court to impose any
appropriate condition (including fixed nature of relief, or its being tied to
an event) etc.
(2) As regards the second question referred to this court, it is held
that the life or duration of an anticipatory bail order does not end normally
at the time and stage when the accused is summoned by the court, or
when charges are framed, but can continue till the end of the trial. Again,
if there are any special or peculiar features necessitating the court to
limit the tenure of anticipatory bail, it is open for it to do so.
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1. This court, in the light of the above discussion in the two
judgments, and in the light of the answers to the reference, hereby
clarifies that the following need to be kept in mind by courts, dealing
with applications under Section 438, Cr. PC:
(1) Consistent with the judgment in Shri Gurbaksh Singh Sibbia
and others v. State of Punjab54, when a person complains of
apprehension of arrest and approaches for order, the application should
be based on concrete facts (and not vague or general allegations) relatable
to one or other specific offence. The application seeking anticipatory
bail should contain bare essential facts relating to the offence, and why
the applicant reasonably apprehends arrest, as well as his side of the
story. These are essential for the court which should consider his
application, to evaluate the threat or apprehension, its gravity or
seriousness and the appropriateness of any condition that may have to
be imposed. It is not essential that an application should be moved only
after an FIR is filed; it can be moved earlier, so long as the facts are
clear and there is reasonable basis for apprehending arrest.
(2) It may be advisable for the court, which is approached with an
application under Section 438, depending on the seriousness of the threat
(of arrest) to issue notice to the public prosecutor and obtain facts, even
while granting limited interim anticipatory bail.
(3) Nothing in Section 438 Cr. PC, compels or obliges courts to
impose conditions limiting relief in terms of time, or upon filing of FIR, or
recording of statement of any witness, by the police, during investigation
or inquiry, etc. While considering an application (for grant of anticipatory
bail) the court has to consider the nature of the offence, the role of the
person, the likelihood of his influencing the course of investigation, or
tampering with evidence (including intimidating witnesses), likelihood of
fleeing justice (such as leaving the country), etc. The courts would be
justified – and ought to impose conditions spelt out in Section 437 (3), Cr.
PC [by virtue of Section 438 (2)]. The need to impose other restrictive
conditions, would have to be judged on a case by case basis, and depending
upon the materials produced by the state or the investigating agency.
Such special or other restrictive conditions may be imposed if the case
or cases warrant, but should not be imposed in a routine manner, in all
cases. Likewise, conditions which limit the grant of anticipatory bail may
be granted, if they are required in the facts of any case or cases; however,
such limiting conditions may not be invariably imposed.
54 1980 (2) SCC 565
SUSHILA AGGARWAL v. STATE (NCT OF DELHI)
[ARUN MISHRA, INDIRA BANERJEE, VINEET SARAN, M. R. SHAH AND
S. RAVINDRA BHAT, JJ.]
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(4) Courts ought to be generally guided by considerations such as
the nature and gravity of the offences, the role attributed to the applicant,
and the facts of the case, while considering whether to grant anticipatory
bail, or refuse it. Whether to grant or not is a matter of discretion; equally
whether and if so, what kind of special conditions are to be imposed (or
not imposed) are dependent on facts of the case, and subject to the
discretion of the court.
(5) Anticipatory bail granted can, depending on the conduct and
behavior of the accused, continue after filing of the charge sheet till end
of trial.
(6) An order of anticipatory bail should not be “blanket” in the
sense that it should not enable the accused to commit further offences
and claim relief of indefinite protection from arrest. It should be confined
to the offence or incident, for which apprehension of arrest is sought, in
relation to a specific incident. It cannot operate in respect of a future
incident that involves commission of an offence.
(7) An order of anticipatory bail does not in any manner limit or
restrict the rights or duties of the police or investigating agency, to
investigate into the charges against the person who seeks and is granted
pre-arrest bail.
(8) The observations in Sibbia regarding “limited custody” or
“deemed custody” to facilitate the requirements of the investigative
authority, would be sufficient for the purpose of
fulfilling the provisions
of Section 27, in the event of recovery of an article, or discovery of a
fact, which is relatable to a statement made during such event (i.e deemed
custody). In such event, there is no question (or necessity) of asking the
accused to separately surrender and seek regular bail. Sibbia (supra)
had observed that “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.”
(9) It is open to the police or the investigating agency to move the
court concerned, which grants anticipatory bail, for a direction under
Section 439 (2) to arrest the accused, in the event of violation of any
term, such as absconding, non-cooperating during investigation, evasion,
intimidation or inducement to witnesses with a view to influence outcome
of the investigation or trial, etc.
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(10) The court referred to in para (9) above is the court which
grants anticipatory bail, in the first instance, according to prevailing
authorities.
(11) The correctness of an order granting bail, can be considered
by the appellate or superior court at the behest of the state or investigating
agency, and set aside on the ground that the court granting it did not
consider material facts or crucial circumstances. (See Prakash Kadam
& Etc. Etc vs Ramprasad Vishwanath Gupta & Anr55; Jai Prakash
Singh (supra) State through C.B.I. vs. Amarmani Tripathi56). This
does not amount to “cancellation” in terms of Section 439 (2), Cr. PC.
(12) The observations in Siddharam Satlingappa Mhetre v. State
of Maharashtra & Ors57(and other similar judgments) that no restrictive
conditions at all can be imposed, while granting anticipatory bail are
hereby overruled. Likewise, the decision in Salauddin Abdulsamad
Shaikh v. State of Maharashtra58and subsequent decisions (including
K.L. Verma v. State & Anr59; Sunita Devi v. State of Bihar & Anr60;
Adri Dharan Das v. State of West Bengal61; Nirmal Jeet Kaur v.
State of M.P. & Anr62; HDFC Bank Limited v. J.J. Mannan63; Satpal
Singh v. the State of Punjab64and Naresh Kumar Yadav v Ravindra
Kumar65) which lay down such restrictive conditions, or terms limiting
the grant of anticipatory bail, to a period of time are hereby overruled.
2. The reference is hereby answered in the above terms.
Divya Pandey
Reference answered.
55 (2011) 6
SCC 189
56 (2005) 8 SCC 21
57 2011 (1) SCC 694
58 (1996 (1) SCC 667)
59 1998 (9) SCC 348
60 2005 (1) SCC 608
61 2005 (4) SCC 303
62 2004 (7) SCC 558
63 2010 (1) SCC 679
64 2018 SCC Online (SC 415
65 2008 (1) SCC 632
SUSHILA AGGARWAL v. STATE (NCT OF DELHI)
[ARUN MISHRA, INDIRA BANERJEE, VINEET SARAN, M. R. SHAH AND
S. RAVINDRA BHAT, JJ.]