diff --git "a/processed_JUDGEMENT ANTICIPATORY BAIL.txt" "b/processed_JUDGEMENT ANTICIPATORY BAIL.txt" new file mode 100644--- /dev/null +++ "b/processed_JUDGEMENT ANTICIPATORY BAIL.txt" @@ -0,0 +1,1468 @@ +Prompt: +Generate a Bail Application involving the following key legal details: + + - DISTRICT: Not available + - BAIL APPLICATION: Not available + +--- +Output: + + Supreme Court of India + Gurbaksh Singh Sibbia Etc vs State Of Punjab on 9 April, 1980 + Equivalent citations: 1980 AIR 1632, 1980 SCR (3) 383 + Author: Y Chandrachud + Bench: Chandrachud, Y.V. (Cj), Bhagwati, P.N., Untwalia, N.L., Pathak, R.S., Reddy, O. + Chinnappa (J) + PETITIONER: + GURBAKSH SINGH SIBBIA ETC. + + Vs. + + RESPONDENT: + STATE OF PUNJAB + DATE OF JUDGMENT09/04/1980 + BENCH: + CHANDRACHUD, Y.V. ((CJ) + BENCH: + CHANDRACHUD, Y.V. ((CJ) + BHAGWATI, P.N. + UNTWALIA, N.L. + PATHAK, R.S. + REDDY, O. CHINNAPPA (J) + CITATION: + 1980 AIR 1632 1980 SCR (3) 383 + 1980 SCC (2) 565 + CITATOR INFO : + R 1982 SC 149 (259) + E&R 1985 SC 969 (6,8,12) + ACT: + Bail-Anticipatory Bail-Section 438 of the Code of + Criminal Procedure Code, 1973 (Act 2 of 1974), Scope of- + Judicial balancing of personal liberty and the + investigational powers of the Police, explained. + HEADNOTE: + The appellant herein, Sri Gurbaksh Singh Sibbia was a + Minister of Irrigation and Power in the Congress Ministry of + the Government of Punjab. Grave allegations of political + corruption were made against him and others whereupon + applications were filed in the High Court of Punjab and + Haryana under section 438 of the Criminal Procedure Code, + praying that the appellants be directed to be released on + bail, in the event of their arrest on the aforesaid charges. + Considering the importance of the matter, a learned single + Judge referred the applications to a Full Bench, which by + its judgment dated September, 13, 1977 dismissed them, after + summarising, what according to it is the true legal + position, of s. 438 of the Code of Criminal Procedure, 1973 + + (Act 2 of 1974) thus: + + (1) The power under Section 438, Criminal + + Procedure Code , is of an extra-ordinary + + character and must be exercised sparingly in + exceptional cases only. + (2) Neither Section 438 nor any other provision + + of the Code authorises the grant of blanket + + anticipatory bail for offences not yet + committed or with regard to accusations not + so far levelled. + (3) The said power is not unguided or uncanalised + but all the limitations imposed in the + preceding Section 437, are implicit therein + and must be read into Section 438. + (4) In addition to the limitations mentioned in + Section 437, the petitioner must make out a + special case for the exercise of the power to + grant anticipatory bail. + (5) Where a legitimate case for the remand of the + offender to the police custody under Section + + 167(2) can be made out by the investigating + + agency or a reasonable claim to secure + incriminating material from information + likely to be received from the offender under + Section 27 of the Evidence Act can be made + out, the power under Section 438 should not + be exercised. + (6) The discretion under Section 438 cannot be + exercised with regard to offences punishable + with death or imprisonment for life unless + the Court at that very stage is satisfied + that such a charge appears tobe false or + groundless. + + 384 + + (7) The larger interest of the public and State + demand that in serious cases like economic + offences involving blatant corruption at the + higher rungs of the executive and political + power, the discretion under Section 438 of + the Code should not be exercised; and + (8) Mere general allegations of mala fides in the + petition are inadequate. The court must be + satisfied on materials before it that the + allegations of mala fides are substantial and + the accusation appears to be false and + groundless. + + The argument that the appellants were men of substance and + position who were hardly likely to abscond and would be + prepared willingly to face trial wasrejected by the Full + Bench with the observation that to accord differential + treatment to the appellants on account of their status will + amount to negation of the concept of equality before the law + and that it could hardly be contended that every man of + status, who was intended to be charged with serious crimes + including the one under section 409 was punishable with life + imprisonment, "was entitled to knock at the door of the + Court for anticipatory bail". The possession of high status, + + according to the Full Bench, is not only an irrelevant + consideration for granting anticipatory bail, but is, if + anything, an aggravating circumstance. Hence the appeals by + special leave. + The appellants contended: (a) The power conferred by + section 438 to grant anticipatory bail is "not limited to + the contigencies" summarised by the High Court; (b) The + power to grant anticipatory bail ought to be left to the + discretion of the Court concerned, depending on the facts + and circumstances of each particular case; (c) Since the + denial of bail amounts to deprivation of personal liberty; + Courts should lean against the imposition of unnecessary + restrictions on the scope of Section 438 , when no such + restrictions are imposed by the legislature in the terms of + that section (d) Section 438 is a procedural provision which + is concerned with the personal liberty of an individual who + has not been convicted of the offence in respect of which he + seeks bail and who must be presumed to be innocent. The + validity of that section must accordingly be examined by the + test of fairness and which is implicit in Article 21. If the + legislature itself were to impose an unreasonable + restriction could have been struck down as being violative + of Article 21. Therefore, while determining the scope of + section 438, the Court should not impose any unfair or + unreasonable limitation on the individual's right to obtain + an order of anticipatory bail. Imposition of an unfair or + unreasonable limitation would be violative of Article 21 + irrespective of whether it is imposed by legislation or by + judicial decision. + Allowing the appeals in part, the Court, + ^ + HELD: 1. The society has a vital stake in both of these + interests namely, personal liberty and the investigational + power of the police, though their relative importance at any + given time depends upon the complexion and restraints of + political conditions. The Court's task is how best to + balance these interests while determining the scope of + section 438 of the Code of Criminal Procedure, 1973. [393 C- + D] + 2. The High Court and the Court of Session should be + left to exercise their jurisdiction under section 438 by a + wise and careful use of their discretion + 385 + which by their long training and experience, they are + ideally suited to do. The ends of justice will be better + served by trusting these courts to act objectively and in + consonance with principles governing the grant of bail which + are recognised over the years, than by divesting them of + their discretion which the legislature has conferred upon + them, by laying down inflexible rules of general + application. It is customary, almost chronic, to take a + statute as one finds it on the ground that, after all, "the + legislature in its wisdom" has thought it fit to use a + particular expression. A convention may usefully grow + whereby the High Court and the Court of Session may be + trusted to exercise their discretionary powers in their + wisdom, especially when the discretion is entrusted to their + + care by the legislature in its wisdom. If they err, they are + liable to be corrected. [417 B-D] + 3. Section 438(1) of the Code lays down a condition + which has to be satisfied before anticipatory bail can be + granted. The applicant must show that he has "reason to + believe" that he may be arrested for a non-bailable offence. + The use of the expression "reason to believe" shows that the + belief that the applicant may be so arrested must be founded + on reasonable grounds. Mere 'fear' is not 'belief', for + which reason it is not enough for the applicant to show that + he has some sort of a vague apprehension that some one is + going to make an accusation against him, in pursuance of + which he may be arrested. The grounds on which the belief of + the applicant is based that he may be arrested for a non- + bailable offence, must be capable of being examined by the + court objectively, because it is then alone that the court + can determine whether the applicant has reason to believe + that he may be so arrested. Section 438(1) , therefore, + cannot be invoked on the basis of vague and general + allegations, as if to arm oneself in perpetuity against a + possible arrest. Otherwise, the number of applications for + anticipatory bail will be as large, as, at any rate, the + adult populace. Anticipatory bail is a device to secure the + individual's liberty; it is neithera passport to the + commission of crimes nor a shield against any and all kinds + of accusation, likely or unlikely. [417 E-H, 418 A] + Secondly, if an application for anticipatory bail is + made to the High Court or the Court of Session it must apply + its own mind to the question and decide whether a case has + been made out for granting such relief. It cannot leave the + question for the decision of the Magistrate concerned under + Section 437 of the Code, as and when an occasion arises. + Such a course will defeat the very object of Section 438. + [418 A-B] + Thirdly, the filing of a First Information Report is + not a condition precedent to the exercise of the power under + Section 438. The imminence of a likely arrest founded on a + reasonable belief can be shown to exist even if an F.I.R. is + not yet filed. [418 B-C] + Fourthly, anticipatory bail can be granted even after + an F.I.R. is filed, so long as the applicant has not been + arrested. [418 C] + Fifthly, the provisions of Section 438 cannot be + invoked after the arrest of the accused. The grant of + "anticipatory bail" to an accused who is under arrest + involves a contradiction in terms, in so far as the offence + or offences for which he is arrested, are concerned. After + arrest, the accused must seek his remedy under Section 437 + or Section 439 of the Code, if he wants to be released on + bail in respect of the offence or offences for which he is + arrested. [418 C-E] + 386 + 4. However, a "blanket order" of anticipatory bail + should not generally be passed. Thisflows from the very + language of the section which requires the appellant to show + that he has "reason to believe" that he may be arrested. A + belief can be said to be founded on reasonable grounds only + + if there is something tangible to go by on the basis of + which it can be said that the applicant's apprehension that + he may be arrested is genuine. That is why, normally, a + direction should not issue under Section 438(1) to the + effect that the applicant shall be released on bail + "whenever arrested for which ever offence whatsoever". That + is what is meant by a 'blanket order' of anticipatory bail, + an order which serves as a blanket to cover or protect any + and every kind of allegedly unlawful activity, in fact any + eventuality, likely or unlikely regarding which, no concrete + information can possibly be bad. The rationale of a + direction under Section 438(1) isthe belief of the + applicant founded on reasonable grounds that he may be + arrested for a non-bailable offence. It is unrealistic to + expect the applicant to draw up his application with the + meticulousness of a pleading in a civil case and such is not + requirement of the section. But specific events and facts + must be disclosed by the applicant in order to enable the + court to judge of the reasonablenessof his belief, the + existence of which is the sine qua non of the exercise of + power conferred by the section. [418 E-H, 419 A] + Apart from the fact that the very language of the + statute compels this construction, there is an important + principle involved in the insistence that facts, on the + basis of which a direction under Section 438(1) is sought, + must be clear and specific, not vague and general. It is + only by the observance of that principle that a possible + conflict between the right of an individual to his liberty + and the right of the police to investigateinto crimes + reported to them can be avoided. [419 A-C] + A blanket order of anticipatory bail is bound to cause + serious interference with both the right and the duty of the + police in the matter of investigation because, regardless of + what kind of offence is alleged to have been committed by + the applicant and when, an order of bail which comprehends + allegedly unlawful activity of any description whatsoever, + will prevent the police from arresting the applicant even if + the commits, say, a murder in the presence of the public. + Such an order can then become a charter of lawlessness and + weapon to stifle prompt investigation into offences which + could not possibly be predicated when the order was passed. + Therefore, the court which grants anticipatory bailmust + take care to specify the offence or offences in respect of + which alone the order will be effective. The power should + not be exercised in a vacuum. [419 C-E] + 5. An order of bail can be passed under section 438(1) + of the Code without notice to the Public Prosecutor. But + notice should issue to the public prosecutor or the + Government Advocate forthwith and the question of bail + should be re-examined in the light of the respective + contentions of the parties. The ad-interim order too must + conform to the requirements of the section and suitable + conditions should be imposed on the applicant even at that + stage. [419 E-F] + 6. Equally the operation of an order passed under + section 438(1) need not necessarily be limited in point of + time. The Court may, if there are reasons for doing so, + + limit the operation of the order to a short period until + after the filing of an F.I.R. in respect of the matter + covered by the order. The applicant may in such cases be + directed to obtain an order of bail under Section 437 or 439 + of the Code within a reasonably short period after the + filing of the F.I.R. + 387 + as aforesaid. But this need not be followed as an invariable + rule. The normal rule should be not to limit the operation + of the order in relation to a period of time. [419 F-H] + 7. Bail is basically release from restraint, more + particularly release from the custody of the police. The act + of arrest directly affects freedom of movement of the person + arrested by the police, and speaking generally, an order of + bail gives back to the accused that freedom on condition + that he will appear to take his trial. Personal recognizance + suretyship bonds and such other modalities are the means by + which an assurance is secured from the accused that though + he has been released on bail, he will present himself as the + trial of offence or offences of which he is charged and for + which he was arrested. [397 E-G] + The distinction between an ordinary order of bail and + an order of anticipatory bail is that whereas the former is + granted after arrest and therefore means release from the + custody of the police, the latter is granted in anticipation + of arrest and is therefore effective at the very moment of + arrest. Police custody is an inevitable concomitant of + arrest for non-bailable offences. An order of anticipatory + bail constitutes, so to say, an insurance against police + custody following upon arrest for offence or offences in + respect of which the order is issued. In other words, unlike + a post-arrest order of bail, it is a pre-arrest legal + process which directs that if the person in whose favour it + is issued is thereafter arrested on the accusation in + respect of which the direction is issued, he shall be + released on bail. Section 46(1) of the Code of Criminal + Procedure which deals with how arrests are to be made, + provides that in making the arrest the police officer or + other person making the arrest "shall actually touch or + confine the body of the person to be arrested, unless there + be a submission to the custody by word or action". A + direction under section 438 is intended to confer + conditional immunity from this 'touch' or confinement. [397 + G-H. 398 A-B] + 8. No one can accuse the police of possessing a healing + touch nor indeed does anyone have misgivings in regard to + constraints consequent upon confinement in police custody. + But, society has come to accept and acquiesce in all that + follows upon a police arrest with a certain amount of + sangfroid, in so far as the ordinary rut of criminal + investigation is concerned. It is the normal day-to-day + business of the police to investigate into charges brought + before them and, broadly and generally, they have nothing to + gain, not favours at any rate, by subjecting ordinary + criminal to needless harassment. But the crimes, the + criminals and even the complaints can occasionally possess + extraordinary features. When the even flow of life becomes + + turbid, the police can be called upon to inquire into + charges arising out of political antagonism. The powerful + processes of criminal law can then be perverted for + achieving extraneous ends. Attendant upon such + investigations, when the police are not free agents within + their sphere of duty, is a great amount of inconvenience, + harassment and humiliation. That can even take the form of + the parading of a respectable person in hand-cuffs, + apparently on way to a court of justice. The foul deed is + done when an adversary is exposed to social ridicule and + obloquy, no matter when and whether a conviction is secured + or is at all possible. It is in order to meetsuch + situations, though not limited to these contingencies, that + the power to grant anticipatory bail was introduced into the + Code of 1973. [398 C-F] + 9. Clause (1) of Section 438 is couched in terms, broad + and unqualified. By any known canon of construction, words + of width and amplitude ought not + 388 + generally to be cut down so as to read into the language of + the statute restraints and conditions which the legislature + itself did not think it proper or necessary to impose. This + is especially true when the statutory provision which falls + for consideration is designed to secure a valuable right + like the right to personal freedom and involves the + application of a presumption as salutary and deep grained in + our Criminal Jurisprudence as the presumption of innocence. + [401 A-C] + The legislature conferred a wide discretion on the High + Court and the Court of Session to grant anticipatory bail + because it evidently felt, firstly, that it would be + difficult to enumerate the conditions under which + anticipatory bail should or should not be granted and + secondly; because the intention was to allow the higher + courts in the echelon a somewhat free hand in the grant of + relief in the nature of anticipatorybail. That is why, + departing from the terms of Sections 437 and 439, Section + 438(1) uses the language that the High Court or the Court of + Session "may, if it thinks fit" direct that the applicant be + released on bail. Sub-section (2) of Section 438 is a + further and clearer manifestation of the same legislative + intent to confer a wide discretionary power to grant + anticipatory bail. It provides that the High Court or the + Court of Session, while issuing a direction for the grant of + anticipatory bail, "may include suchconditions in such + directions in the light of the facts of the particular case, + as it may think fit" including the conditions which are set + out in clauses (i) to (iv) of sub-section (2). The proof of + legislative intent can best be found in the language which + the legislature uses. Ambiguities can undoubtedly be + resolved by resort to extraneous aids but words, as wide and + explicit as have been used in Section 438, must be given + their full effect, especially when to refuse to do so will + result in undue impairment of the freedom of the individual + and the presumption of innocence. It has to be borne in mind + that anticipatory bail is sought when there is a mere + apprehension of arrest on the accusation that the applicant + + has committed a non-bailable offence. A person who has yet + to lose his freedom by being arrested asks for freedom in + the event of arrest. That is the stage at which it is + imperative to protect his freedom, in so far as one may, and + to give full play to the presumption that he is innocent. In + fact, the stage at which anticipatory bail is generally + sought brings about its striking dissimilarity with the + situation in which a person who is arrested for the + commission of a non-bailable offences asks for bail. In the + latter situation, adequate data is available to the Court, + or can be called for by it, in the light of which it can + grant or refuse relief and while granting it, modify it by + the imposition of all or any of the conditions mentioned in + Section 437. [404 A-G] + 10. The amplitude of judicial discretion which is given + to the High Court and the Court of Sessions, to impose such + conditions as they may think fit while granting anticipatory + bail, should not be cut down, by a process of construction, + by reading into the statute conditions which are not to be + found therein like those evolved by the High Court. The High + Court and the Court of Session to whom the application for + anticipatory bail is made ought to be left free in the + exercise of their judicial discretion to grant bail if they + consider it fit so to do on the particular facts and + circumstances of the case and on such conditions as the case + may warrant. Similarly, they must beleft free to refuse + bail if the circumstances of the case so warrant, on + considerations similar to those mentioned in Section 437 or + which are generally considered to be relevant under Section + 439 of the Code. [405 B-D] + 389 + Generalisations on matters which rest on discretion and + the attempt to discover formulae of universal application + when facts are bound to differ from case to case frustrate + the very purpose of conferring discretion. No two cases are + alike on facts and therefore, Courtshave to be allowed a + little free play in the joints if the conferment of + discretionary power is to be meaningful. There is no risk + involved in entrusting a wide discretion to the Court of + Session and the High Court in granting anticipatory bail + because, firstly these are higher courts manned by + experienced persons, secondly their order are not final but + are open to appellate or revisional scrutiny and above all + because, discretion has always to be exercised by courts + judicially and not according to whim, caprice or fancy. On + the other hand, there is a risk in foreclosing categories of + cases in which anticipatory bail may be allowed because life + throws up unforeseen possibilities and offers new + challenges. Judicial discretion has to be free enough to be + able to take these possibilities in its stride and to meet + these challenges. [405 D-G] + Hyman and Anr. v. Rose, 1912 A.C. 623; referred to + 11. Judges have to decide cases as they come before + them, mindful of the need to keep passions and prejudices + out of their decisions. And it will be strange if, by + employing judicial artifices and techniques, this Court cuts + down the discretion so wisely conferred upon the Courts, by + + devising a formula which will confine the power to grant + anticipatory bail within a strait-jacket. While laying down + cast-iron rules in a matter like granting anticipatory bail, + as the High Court has done, it is apt to be overlooked that + even Judges can have but an imperfect awareness of the needs + of new situations. Life is never static and every situation + has to be assessed in the context of emerging concerns as + and when it arises. Therefore, even if this Court were to + frame a 'Code for the grant of anticipatorybail', which + really is the business of the legislature, it can at best + furnish broad guidelines and cannot compel blind adherence. + In which case to grant bail and in which to refuse it is, in + the very nature of things, a matter of discretion. But apart + from the fact that the question is inherently of a kind + which calls for the use of discretion from case to case, the + legislature has, in terms express, relegated the decision of + that question to the discretion of the Court, by providing + that it may grant bail "if it thinks fit". The concern the + Courts generally is to preserve their discretion without + meaning to abuse it. It will be strange if the Court + exhibits concern to stultify the discretion conferred upon + the Courts by law. [406 D-H] + Discretion, therefore, ought to be permitted to remain + in the domain of discretion, to be exercised objectively and + open to correction by the higher courts. The safety of + discretionary power lies in this twin protection which + provides a safeguard against its abuse. [407 F-G] + 12. It is true that the functions of judiciary and the + police are in a sense complementary and not overlapping. An + order of anticipatory bail does not in any way, directly or + indirectly, take away from the police their right to + investigate into charges made or to be made against the + person released on bail. In fact, two of the usual + conditions incorporated in a direction issued under section + 438(1) are those recommended in Sub-section (2)(i) and (ii) + which require the applicant to co-operate with the police + and to assure that he shall not tamper with the witnesses + during and after the investigation. While granting relief + under Section 438(1), appropriate conditions can be imposed + under Section 438(2), so as to ensure an uninterrupted + investigation. One of + 390 + such conditions can even be that in the event of the police + making out a case of a likely discovery under Section 27 of + the Evidence Act, the person released on bail shall be + liable to be taken in police custody for facilitating the + discovery. Besides, if and when the occasion arises, it may + be possible for the prosecution to claim the benefit of + Section 27 of the Evidence Act in regard to a discovery of + facts made in pursuance of information supplied by a person + released on bail. [409 D, 410 A-D] + King Emperor v. Khwaja Nazir Ahmed, 71 I.A., 203, State + of U.P. v. Deoman Upadhyaya , [1961] 1 S.C.R. p. 14 @ 26; + referred to. + 13. In Balchand Jain v. State of Madhya Pradesh, [1977] + 2 SCR 52, this Court was considering whether the provisions + of Section 438 relating to anticipatory bail stand overruled + + or repealed by virtue of Rule 184 of the Defence and + Internal Security of India Rules, 1971 or whether both the + provisions can by rule of harmonious interpretion, exist + side by side. It was in that context that it was observed + that "As section 438 immediately follows Section 437 which + is the main provision for bail in respect of non-bailable + offences, it is manifest that the conditions imposed by s. + 437(1) are implicitly contained in Section 438 of the Code". + These observations regarding the nature of the power + conferred by section 438 and regarding the question whether + the conditions mentioned in Section 437 should be read into + section 438 cannot, therefore be treated as the ratio of the + decision. [413 C-D, E] + The power conferred by section 438 is of an "extra + ordinary" character only in the sense that it is not + ordinarily resorted to like the power conferred by sections + 437 and 439. [413 E-F] + Bal Chand Jain v. State of M.P., [1977] 2 S.C.R. 52, + distinguished. + 14. Since denial of bail amounts to deprivation of + personal liberty, the Court should lean against the + imposition of unnecessary restrictions on the scope of + section 438, especially when no such restrictions have been + imposed by the legislature in the terms of that section. + Section 438 is a procedural provision which is concerned + with the personal liberty of the individual, who is entitled + to the benefit of the presumption of innocence since he is + not, on the date of his application for anticipatory bail, + convicted of the offence in respect of which he seeks bail. + An over-generous infusion of constraints and conditions + which are not to be found in Section 438 can make its + provisions constitutionally vulnerable since the right to + personal freedom cannot be made to depend on compliance with + unreasonable restrictions. [413 F-H, 414 A] + Maneka Gandhi v. Union of India, [1978] 1 S.C.C. 248; + applied. + 15. In regard to anticipatory bail, if the proposed + accusation appears to stem not from motives of furthering + the ends of justice but from some ulterior inotive, the + object being to injure and humiliate the applicant by having + him arrested a direction for the release of the applicant on + bail in the event of his arrest would generally, be made. On + the other hand, if it appears likely considering the + antecedents of the applicant, that taking advantage of the + order of anticipatory bail he will flee from justice, such + an order would not be made. But the converse of these + propositions is not necessarily true. That is to say it + cannot be laid down as an inexorable rule that anticipatory + bail cannot be granted unless theproposed accusation + appears to be actuated by mala fides; + 391 + and, equally, that anticipatory bail must be granted if + there is no fear that the applicant will abscond. There are + several other considerations, too numerous to enumerate the + combined effect of which must weigh with the court while + granting or rejecting anticipatory bail. The nature and + seriousness of the proposed charges, the context of the + + events likely to lead to the making of the charges, a + reasonable possibility of the applicant's presence not being + secured at the trial, a reasonable apprehension that + witnesses will be tampered with and "the larger interests of + the public or the state" are some of the considerations + which the court has to keep in mind while deciding an + application for anticipatory bail. [415 G-H, 416 A-C] + State v. Captain Jagjit Singh, [1962] 3 S.C.R. 622, + followed. + JUDGMENT: + CRIMINAL APPELLATE JURISDICTION: Criminal Appeals Nos. 335, 336, 337, 338, 339, + 346, 347, 350, 351, 352, 365, 366, 367, 383, 396, 397, 398, 399, 406, 415, 416, 417, 418, 419, + 420, 430, 431, 438, 439, 440, 447, 448, 449, 463, 473, 474, 477, 498, 506, 508, 512, 511 of + 1977, 1, 15, 16, 38, 53, 69, 70 of 1978, 469, 499 of 1977, 40, 41, 81, 82, 98, 109, 130, 141, 142, + 145, 149, 153 and 154 of 1978. + AND Special Leave Petitions (Criminal) Nos. 260, 272, 273, 274, 383, 388 & 479 of 1978. + Appeals by Special leave from the Judgments and Orders dated 13-9-77, 13-9-77, 13-9-77, 15-9- + 77, 13-9-77, 21-9-77, 19-9-77, 23-9-77, 23-9-77, 23-9-77, 26-9-77, 26-9-77, 30-9- 77, 7-10-77, + 16-9-77 9-9-77, 20-9-77, 5-10-77, 20-10-77, 26- 9-77, 20-10-77, 20-10-77, 19-10-77, 24-10-77, + 25-10-77, 14- 9-77, 24-10-77, 2-11-77, 2-11-77, 3-11-77, 2-9-77, 7-9-77, 2-9-77, 9-11-77, 22- + 11-77, 23-11-77, 24-11-77, 13-12-77, 11- 11-77, 23-11-77, 14-12-77, 13-12-77, 20-12-77, 3-1- + 78, 4-1- 78, 5-1-78, 16-1-78, 18-1-78, 30-1-78, 25-1-78, 18-11-77, 13-12-77, 10-1-78, 13-1-78, + 1-2-78, 1-2-78, 8-2-78, 21-12- 77, 1-3-78, 3-3-78, 3-3-78, 10-3-78, 8-3-78, 20-3-78, 17-3- 78, + 15-2-78, 17-2-78, 17-2-78, 24-1-78, 14-3-78, 14-3-78 and 27-3-78 of the Punjab and Haryana + High Court in Crl. Misc. Nos. 3753 M, 3719 M, 3720 M, 3916 M, 3718 M, 3793 M, 3565 M, + 3892 M, 3595 M, 3596 M, 4359 M, 3563 M, 3484 M, 4627 M, 3893 M, 3894 M, 3587 M, 4540 + M, 4908 M, 3031 M, 4934 M, 4916 M, 4888 M, 4964 M, 4992 M, 3688 M, 4907 M, 5176 M, + 5177 M, 5197 M, 3564 M, 3716 M, 3717 M, 5344 M, 5558 M, 5079 M, 5613 M, 5905 M, 5254 + M, 5253 M, 5919 M, 5907 M, 6005 M of 1977, 45 M, 68 M, 102 M, 246 M of 1978, 6114 M of + 1977, 462 M, 248 M of 1978, 5240 M, 5892 M of 1977, 19/78, 956/77, 104 M/78, 104 M/78, + 605/78, 5995 M/77, 941 M/78, 904 M/78, 1005 M/78, 1137 M/78, 819 M/78, 1260 M/78, 866 + M/78 & 541 M/78, 4897 M/77, 4758 M/77, 364 M/78, 1167/78, 1168 M/78 and 1381 M/78. + M. C. Bhandare, Gobind Das, K. S. Thapar, Dilip Singh, Mrs. Sunanda Bhandare, A. N. + Karkhanis, Deepak Thapar and Miss Malini for the Appellants in Crl. A. Nos. 335, 365, 430, + 431, 506, 508, 499/77, 150, 141, 142, 153, 154 and for the Petitioners in SLPs 272-274 of 1978. + Frank Anthony, V. C. Mahajan, O. P. Sharma and R. C. Bhatia for the Appellants in Crl. A. Nos. + 336, 337, 338, 350, 396, 397-399, 473, 474/77 and 1, 15, 16, 17, 69, 70, 81, 82, 98 and 149 and + 109 of 1978. + Harjinder Singh for the Appellant in Crl. A. 339 of 1977. + + B. S. Bindra, S. M. Ashri and Mrs. Lakshmi Arvind for the Appellants in Crl. As. Nos. 348, 366, + 415, 420, 477, 511, 512, 469/77 and 145 of 1978. + P. R. Mridul, H. K. Puri, Aruneshwar Prasad and Vivek Sethi for the Appellant in Crl. A No. 346 + of 1977. + L. N. Sinha, R. P. Singh, L. R. Singh, Suman Kapoor, Sukumar Sahu and M. C. Bhandare, P. P. + Singh and R. K. Jain for the Appellants in Crl. A. Nos. 351, 352, 406, 438-40, 463/77. + S. K. Jain for the Appellant in Crl. A. No. 53/78. V. M. Tarkunde, M. M. L. Srivastava, R. Satish + and E. C. Agrawala for the Appellant in Crl. A. Nos. 367/77 and SLP 383/78. + V. C. Mahajan, Harbhagwan Singh, S. K. Mehta, K. R. Nagaraja and P. N. Puri for the Appellant + in Crl. A. Nos. 383/78 and 498/77. + K. K. Mohan for the Petitioner in SLP 260/78. A. K. Sen and Rathin Dass for the Appellant in + Crl. A. Nos. 40, 41/78. + M. M. L. Srivastava for the Petitioner in SLP 388/78. L. M. Singhvi and N. S. Das Behl for the + Appellants in Crl. A. No. 38/78 and for the Petitioner in SLP 479/78. + Soli. J. Sorabjee, Addl. Sol. Genl. Bishamber Lal Khanna, Hardev Singh, R. S. Sodhi and B. B. + Singh for the Appellants in Crl. As. Nos. 477-449/77 and respondents in Crl. A. Nos. 335- + 339,347,350, 352,366,367,388,396-398,406, 415-420,438-440,463,473,474,477, 498, 511/77, 1, + 15-17/78, 469, 510/77, 109/78 and for the Petitioners in SLP Nos. 388/78, Crl. A. No. 98/78 & + SLP 260/78. + Soli. J. Sorabjee Addl. Sol. Genl., Thakur Naubat Singh Adv. Genl. Haryana, S. N. Anand and R. + N. Sachthey for the Respondents, in Crl. A. Nos. 365, 430, & 431/77, 508, 499/78 and 38, 141 + and 142/78. + M. M. Kshatriya and G. S. Chatterjee for Respondents in Crl. A. Nos. 40 and 41 of 1978. + M. M. Kshatriya and G. S. Chatterjee for Respondents in Crl. A. 346/77. + J. K. Gupta, B. R. Agarwala and Janendra Lal for the Vice-Chancellor, Punjab University in Crl. + A. No. 346/77. + The Judgment of the Court was delivered by CHANDRACHUD, C.J.-These appeals by Special + Leave involve a question of great public importance bearing, at once, on personal liberty and the + investigational powers of the police. The society has a vital stake in both of these interests, + though their relative importance at any given time depends upon the complexion and restraints of + political conditions. Our task in these appeals in how best to balance these interests while + determining the scope of Section 438 of the Code of Criminal Procedure, 1973 (Act No. 2 of + 1974). + + Section 438 provides for the issuance of direction for the grant of bail to a person who + apprehends arrest. It reads thus: + "438. (1) When any person has reason to believe that he may be arrested on an accusation of + having committed a non-bailable offence, he may apply to the High Court or the Court of + Session for a direction under this section; and that Court may, if it thinks fit, direct that in the + event of such arrest, he shall be released on bail. + (2) When the High Court or the Court of Session makes a direction under sub-section (1), it may + include such conditions in such directions in the light of the facts of the particular case, as it may + think fit, including- + (i) a condition that the person shall make himself available for interrogation by a police officer as + and when required; + (ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or + promise to any person acquainted with the facts of the case so as to dissuade him from disclosing + such facts to the Court or to any police officer; + (iii) a condition that the person shall not leave India without the previous permission of the + Court; + (iv) such other condition as may be imposed under sub-section (3) of section 437, as if the bail + were granted under that section. (3) If such person is thereafter arrested without warrant by an + officer in charge of a police station on such accusation, and is prepared either at the time of arrest + or at any time while in the custody of such officer to give bail, he shall be released on bail; and if + a Magistrate taking cognizance of such offence decides that a warrant should issue in the first + instance against that person, he shall issue a bailable warrant in conformity with the direction of + the Court under sub-section (1)." + Criminal Appeal No. 335 of 1975 which is the first of the many appeals before us, arises out of a + judgment dated September 13, 1977 of a Full Bench of the High Court of Punjab and Haryana. + The appellant herein, Shri Gurbaksh Singh Sibbia, was a Minister of Irrigation and Power in the + Congress Ministry of the Government of Punjab. Grave allegations of political corruption were + made against him and others whereupon, applications were filed in the High Court of Punjab and + Haryana under Section 438, praying that the appellants be directed to be released on bail, in the + event of their arrest on the aforesaid charges. Considering the importance of the matter, a learned + Single Judge referred the applications to a Full Bench, which by its judgment dated September + 13, 1977 dismissed them. + The Code of Criminal Procedure, 1898 did not contain any specific provision corresponding to + the present Section + 438. Under the old Code, there was a sharp difference of opinion amongst the various High + Courts on the question as to whether courts had the inherent power to pass an order of bail in + anticipation of arrest, the preponderance of view being that it did not have such power. The need + for extensive amendments to the Code of Criminal Procedure was felt for a long time and various + suggestions were made in different quarters in order to make the Code more effective and + comprehensive. The Law Commission of India, in its 41st Report dated September 24, 1969 + pointed out the necessity of introducing a provision in the Code en- + + abling the High Court and the Court of Session to grant "anticipatory bail". It observed in + paragraph 39.9 of its report (Volume I): + "39.9. The suggestion for directing the release of a person on bail prior to his arrest (commonly + known as "anticipatory bail") was carefully considered by us. Though there is a conflict of + judicial opinion about the power of a Court to grant anticipatory bail, the majority view is that + there is no such power under the existing provisions of the Code. The necessity for granting + anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals + in false cases for the purpose of disgracing them or for other purposes by getting them detained + in jail for some days. In recent times, with the accentuation of political rivalry, this tendency is + showing signs of steady increase. Apart from false cases, where there are reasonable grounds for + holding that a person accused of an offence is not likely to abscond, or otherwise misuse his + liberty while on bail, there seems no justification to require him first to submit to custody, remain + in prison for some days and then apply for bail. + We recommend the acceptance of this suggestion. We are further of the view that this special + power should be conferred only on the High Court and the Court of Session, and that the order + should take effect at the time of arrest or thereafter. + In order to settle the details of this suggestion, the following draft of a new section is placed for + consideration: + "497A. (1) When any person has a reasonable apprehension that he would be arrested on an + accusation of having committed a non-bailable offence, he may apply to the High Court or the + Court of Session for a direction under this section. That Court may, in its discretion, direct that in + the event of his arrest, he shall be released on bail. + (2) A Magistrate taking cognizance of an offence against that person shall, while taking steps + under section 204(1), either issue summons or a bailable warrant as indicated in the direction of + the Court under sub-section (1). + (3) if any person in respect of whom such a direction is made is arrested without warrant by an + officer in charge of a police station on an accusation of having com- + mitted that offence, and is prepared either at the time of arrest or at any time while in the custody + of such officer to give bail, such person shall be released on bail." + We considered carefully the question of laying down in the statute certain conditions under + which alone anticipatory bail could be granted. But we found that it may not be practicable to + exhaustively enumerate those conditions; and moreover, the laying down of such conditions may + be construed as prejudging (partially at any rate) the whole case. Hence we would leave it to the + discretion of the court and prefer not to fetter such discretion in the statutory provision itself. + Superior Courts will, undoubtedly, exercise their discretion properly, and not make any + observations in the order granting anticipatory bail which will have a tendency to prejudice the + fair trial of the accused." + The suggestion made by the Law Commission was, in principle, accepted by the Central + Government which introduced Clause 447 in the Draft Bill of the Code of Criminal Procedure, + 1970 with a view to conferring an express power on the High Court and the Court of Session to + grant anticipatory bail. That Clause read thus: + "447. (1) When any person has reason to believe that he would be arrested on an accusation of + having committed a non-bailable offence, he may apply to the High Court or the Court of + + Session for a direction under this section; and that Court may, if it thinks fit, direct that in the + event of such arrest, he shall be released on bail. + (2) If such person is thereafter arrested without warrant by an officer in charge of a police station + on such accusation, and is prepared either at the time of arrest or at any time while in the custody + of such officer to give bail, he shall be released on bail; and if a Magistrate taking cognizance of + such offence decides that a warrant should issue in the first instance against that person, he shall + issue a bailable warrant in conformity with the direction of the Court under sub-section (1)." + The Law Commission, in paragraph 31 of its 48th Report (1972), made the following comments + on the aforesaid Clause. + "31. The Bill introduces a provision for the grant of anticipatory bail. This is substantially in + accordance with the recommendation made by the previous Commission. We agree that this + would be a useful addition, though we must add that it is in very exceptional cases that such a + power should be exercised. + We are further of the view that in order to ensure that the provision is not put to abuse at the + instance of unscrupulous petitioners, the final order should be made only after notice to the + Public Prosecutor. The initial order should only be an interim one. Further, the relevant section + should make it clear that the direction can be issued only for reasons to be recorded, and if the + court is satisfied that such a direction is necessary in the interests of justice. It will also be + convenient to provide that notice of the interim order as well as of the final orders will be given + to the Superintendent of Police forthwith." + Clause 447 of the Draft Bill of 1970 was enacted with certain modifications and became Section + 438 of the Code of Criminal Procedure, 1973 which we have extracted at the outset of this + judgment. + The facility which Section 438 affords is generally referred to as 'anticipatory bail', an expression + which was used by the Law Commission in its 41st report. Neither the section nor its marginal + note so describes it but, the expression 'anticipatory bail' is a convenient mode of conveying that + it is possible to apply for bail in anticipation of arrest. Any order of bail can, of course, be + effective only from the time of arrest because, to grant bail, as stated in Wharton's Law Lexicon, + is to 'set at liberty a person arrested or imprisoned, on security being taken for his appearance'. + Thus, bail is basically release from restraint, more particularly, release from the custody of the + police. The act of arrest directly affects freedom of movement of the person arrested by the + police, and speaking generally, an order of bail gives back to the accused that freedom on + condition that he will appear to take his trial. Personal recognisance, suretyship bonds and such + other modalities are the means by which an assurance is secured from the accused that though he + has been released on bail, he will present himself at the trial of offence or offences of which he is + charged and for which he was arrested. The distinction between an ordinary order of bail and an + order of anticipatory bail is that whereas the former is granted after arrest and therefore means + release from the custody of the police, the latter is granted in anticipation of arrest and is + therefore effective at the very moment of arrest. Police custody is an inevitable concomitant of + arrest for non-bailable offences. An order of anticipatory bail constitutes, so to say, an insurance + against police custody following upon arrest for offence or offences in respect of which the order + is issued. In other words, unlike a post-arrest order of bail, it is a pre-arrest legal process which + + directs that if the person in whose favour it is issued is thereafter arrested on the accusation in + respect of which the direction is issued, he shall be released on bail. Section 46(1) of the Code of + Criminal Procedure which deals with how arrests are to be made, provides that in making the + arrest, the police officer or other person making the arrest "shall actually touch or confine the + body of the person to be arrested, unless there be a submission to the custody by word or action". + A direction under section 438 is intended to confer conditional immunity from this 'touch' or + confinement. + No one can accuse the police of possessing a healing touch nor indeed does anyone have + misgivings in regard to constraints consequent upon confinement in police custody. But, society + has come to accept and acquiesce in all that follows upon a police arrest with a certain amount of + sangfroid, in so far as the ordinary rut of criminal investigation is concerned. It is the normal + day-to-day business of the police to investigate into charges brought before them and, broadly + and generally, they have nothing to gain, not favours at any rate, by subjecting ordinary criminals + to needless harassment. But the crimes, the criminals and even the complainants can occasionally + possess extra-ordinary features. When the even flow of life becomes turbid, the police can be + called upon to inquire into charges arising out of political antagonism. The powerful processes of + criminal law can then be perverted for achieving extraneous ends. Attendant upon such + investigations, when the police are not free agents within their sphere of duty, is a great amount + of inconvenience, harassment and humiliation. That can even take the form of the parading of a + respectable person in handcuffs, apparently on way to a court of justice. The foul deed is done + when an adversary is exposed to social ridicule and obloquy, no matter when and whether a + conviction is secured or is at all possible. It is in order to meet such situations, though not limited + to these contingencies, that the power to grant anticipatory bail was introduced into the Code of + 1973. + Are we right in saying that the power conferred by section 438 to grant anticipatory bail is "not + limited to these contingencies"? In fact that is one of the main points of controversy between the + parties. Whereas it is argued by Shri M. C. Bhandare, Shri O. P. Sharma and the other learned + counsel who appear for the appellants that the power to grant anticipatory bail ought to be left to + the discretion of the court concerned, depending on the facts and circumstances of each + particular case, it is argued by the learned Additional Solicitor General on behalf of the State + Government that the grant of anticipatory bail should at least be conditional upon the applicant + showing that he is likely to be arrested for an ulterior motive, that is to say, that the proposed + charge or charges are evidently baseless and are actuated by mala fides. It is argued that + anticipatory bail is an extra-ordinary remedy and therefore, whenever it appears that the + proposed accusations are prima facie plausible, the applicant should be left to the ordinary + remedy of applying for bail under Section 437 or Section 439, Criminal Procedure Code, after he + is arrested. + Shri V. M. Tarkunde, appearing on behalf of some of the appellants, while supporting the + contentions of the other appellants, said that since the denial of bail amounts to deprivation of + personal liberty, court should lean against the imposition of unnecessary restrictions on the scope + of Section 438, when no such restrictions are imposed by the legislature in the terms of that + Section. The learned counsel added a new dimension to the argument by invoking Article 21 of + the Constitution. He urged that Section 438 is a procedural provision which is concerned with the + + personal liberty of an individual who has not been convicted of the offence in respect of which + he seeks bail and who must therefore be presumed to be innocent. The validity of that section + must accordingly be examined by the test of fairness and reasonableness which is implicit in + Article 21. If the legislature itself were to impose an unreasonable restriction on the grant of + anticipatory bail, such a restriction could have been struck down as being violative of Article 21. + Therefore, while determining the scope of Section 438, the court should not impose any unfair or + unreasonable limitation on the individual's right to obtain an order of anticipatory bail. + Imposition of an unfair or unreasonable limitation, according to the learned counsel, would be + violative of Article 21, irrespective of whether it is imposed by legislation or by judicial + decision. + The Full Bench of the Punjab and Haryana High Court rejected the appellants' applications for + bail after summarising, what according to it is the true legal position, thus: + (1) The power under Section 438, Criminal Procedure Code, is of an extra-ordinary character and + must be exercised sparingly in exceptional cases only; + (2) Neither Section 438 nor any other provision of the Code authorises the grant of blanket + anticipatory bail for offences not yet committed or with regard to accusations not so far levelled. + (3) The said power is not unguided or uncanalised but all the limitations imposed in the + preceding Section 437 , are implicit therein and must be read into Section 438. + (4) In addition to the limitations mentioned in Section 437, the petitioner must make out a special + case for the exercise of the power to grant anticipatory bail. + (5) Where a legitimate case for the remand of the offender to the police custody under Section + 167 (2) can be made out by the investigating agency or a reasonable claim to secure + incriminating material from information likely to be received from the offender under Section 27 + of the Evidence Act can be made out, the power under Section 438 should not be exercised. + (6) The discretion under Section 438 cannot be exercised with regard to offences punishable with + death or imprisonment for life unless the court at that very stage is satisfied that such a charge + appears to be false or groundless. + (7) The larger interest of the public and State demand that in serious cases like economic + offences involving blatant corruption at the higher rungs of the executive and political power, the + discretion under Section 438 of the Code should not be exercised; and (8) Mere general + allegation of mala fides in the petition are inadequate. The court must be satisfied on materials + before it that the allegations of mala fides are substantial and the accusation appears to be false + and groundless. + It was urged before the Full Bench that the appellants were men of substance and position who + were hardly likely to abscond and would be prepared willingly to face trial. This argument was + rejected with the observation that to accord differential treatment to the appellants on account of + their status will amount to negation of the concept of equality before the law and that it could + hardly be contended that every man of status, who was intended to be charged with serious + crimes, including the one under Section 409 which was punishable with life imprisonment, "was + entitled to knock at the door of the court for anticipatory bail". The possession of high status, + according to the Full Bench, is not only an irrelevant consideration for granting anticipatory bail + but is, if anything, an aggravating circumstance. + + We find ourselves unable to accept, in their totality, the submissions of the learned Additional + Solicitor General or the constraints which the Full Bench of the High Court has engrafted on the + power conferred by Section 438. Clause (1) of Section 438 is couched in terms, broad and + unqualified. By any known canon of construction, words of width and amplitude ought not + generally to be cut down so as to read into the language of the statute restraints and conditions + which the legislature itself did not think it proper or necessary to impose. This is especially true + when the statutory provisions which falls for consideration is designed to secure a valuable right + like the right to personal freedom and involves the application of a presumption as salutary and + deep-grained in our Criminal Jurisprudence as the presumption of innocence. Though the right to + apply for anticipatory bail was conferred for the first time by Section 438, while enacting that + provision the legislature was not writing on a clean slate in the sense of taking an unprecedented + step, in so far as the right to apply for bail is concerned. It had before it two cognate provisions + of the Code: Section 437 which deals with the power of courts other than the Court of Session + and the High Court to grant bail in non-bailable cases and Section 439 which deals with the + "special powers" of the High Court and the Court of Session regarding bail. The whole of + Section 437 is riddled and hedged in by restrictions on the power of certain courts to grant bail. + That section reads thus : + "437. When bail may be taken in case of non- bailable offence. (1) When any person accused of + or suspected of the commission of any non-bailable offence is arrested or detained without + warrant by an officer in charge of a police station or appears or is brought before a Court other + than the High Court or Court of Session, he may be released on bail, but he shall not be so + released if there appear reasonable grounds for believing that he has been guilty of an offence + punishable with death or imprisonment for life : Provided that the Court may direct that any + person under the age of sixteen years or any woman or any sick or infirm person accused of such + an offence be released on bail : + Provided further that the mere fact that an accused person may be required for being identified + by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is + otherwise entitled to be released on bail and gives an undertaking that he shall comply with such + directions as may be given by the Court. + (2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial as the + case may be, that there are not reasonable grounds for believing that the accused has committed a + non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, the + accused shall, pending such inquiry, be released on bail, or, at the discretion of such officer or + Court, on the execution by him of a bond without sureties for his appearance as hereinafter + provided. + (3) When a person accused or suspected of the commission of an offence punishable with + imprisonment which may extend to seven years or more or of an offence under Chapter VI, + Chapter XVI or Chapter XVII of the Indian Penal Code or abetment of, or conspiracy or attempt + to commit, any such offence, is released on bail under sub-section (1), the Court may impose any + condition which the Court considers necessary- + (a) in order to ensure that such person shall attend in accordance with the conditions of the bond + executed under this Chapter, or + (b) in order to ensure that such person shall not commit an offence similar to the offence of + which he is accused or of the commission of which he is suspected, or + + (c) otherwise in the interests of justice. (4) An officer or a Court releasing any person on bail + under sub-section (1) or sub-section (2), shall record in writing his or its reasons for so doing. (5) + Any Court which has released a person on bail under sub-section (1) or sub-section (2), may, if it + considers it necessary so to do, direct that such person be arrested and commit him to custody. + (6) If, in any case triable by a Magistrate, the trial of a person accused of any non-bailable + offence is not concluded within a period of sixty days from the first date fixed for taking + evidence in the case, such person shall, if he is in custody during the whole of the said period, be + released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, + the Magistrate otherwise directs. + (7) If, at any time after the conclusion of the trial of a person accused of an non-bailable offence + and before judgment is delivered, the Court is of opinion that there are reasonable grounds for + believing that the accused is not guilty of any such offence, it shall release the accused, if he is in + custody, on the execution by him of a bond without sureties for his appearance to hear judgment + delivered." + Section 439 (1) (a) incorporates the conditions mentioned in Section 437 (3) if the offence in + respect of which the bail is sought is of the nature specified in that sub-section. Section 439 reads + thus : + "439. Special powers of High Court or Court of Session regarding bail. (1) A High Court or + Court of Session may direct- + (a) That any person accused of an offence and in custody be released on bail, and if the offence is + of the nature specified in sub-section (3) of section 437, may impose any condition which it + considers necessary for the purposes mentioned in that sub-section; + (b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or + modified : + Provided that the High Court or the Court of Session shall, before granting bail to a person who + is accused of an offence which is triable exclusively by the Court of Session or which, though + not so triable, is punishable with imprisonment for life, give notice of the application for bail to + the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not + practicable to give notice. (2) A High Court or Court of Session may direct that any person who + has been released on bail under this Chapter be arrested and commit him to custody." + The provisions of Section 437 and 439 furnished a convenient model for the legislature to copy + while enacting Section 438. If it has not done so and has departed from a pattern which could + easily be adopted with the necessary modifications, it would be wrong to refuse to give to the + departure its full effect by assuming that it was not intended to serve any particular or specific + purpose. The departure, in our opinion, was made advisedly and purposefully : Advisedly, at + least in part, because of the 41st Report of the Law Commission which, while pointing out the + necessity of introducing a provision in the Code enabling the High Court and the Court of + Session to grant anticipatory bail, said in paragraph 29.9 that it had "considered" carefully the + question of laying down in the statute certain conditions under which alone anticipatory bail + could be granted" but had come to the conclusion that the question of granting such bail should + be left "to the discretion of the court" and ought not to be fettered by the statutory provision + itself, since the discretion was being conferred upon superior courts which were expected to + exercise it judicially. The legislature conferred a wide discretion on the High Court and the Court + + of Session to grant anticipatory bail because it evidently felt, firstly, that it would be difficult to + enumerate the conditions under which anticipatory bail should or should not be granted and + secondly, because the intention was to allow the higher courts in the echelon a somewhat free + hand in the grant of relief in the nature of anticipatory bail. That is why, departing from the terms + of Sections 437 and 439, Section 438(1) uses the language that the High Court or the Court of + Session "may, if it thinks fit" direct that the applicant be released on bail. Sub-section (2) of + Section 438 is a further and clearer manifestation of the same legislative intent to confer a wide + discretionary power to grant anticipatory bail. It provides that the High Court or the Court of + Session, while issuing a direction for the grant of anticipatory bail, "may include such conditions + in such directions in the light of the facts of the particular case, as it may think fit", including the + conditions which are set out in clauses (i) to (iv) of sub-section (2). The proof of legislative + intent can best be found in the language which the legislature uses. Ambiguities can undoubtedly + be resolved by resort to extraneous aids but words, as wide and explicit as have been used in + Section 438, must be given their full effect, especially when to refuse to do so will result in + undue impairement of the freedom of the individual and the presumption of innocence. It has to + be borne in mind that anticipatory bail is sought when there is a mere apprehension of arrest on + the accusation that the applicant has committed a non-bailable offence. A person who has yet to + lose his freedom by being arrested asks for freedom in the event of arrest. That is the stage at + which it is imperative to protect his freedom, in so far as one may, and to give full play to the + presumption that he is innocent. In fact, the stage at which anticipatory bail is generally sought + brings about its striking dissimilarity with the situation in which a person who is arrested for the + commission of a non-bailable offence asks for bail. In the latter situation, adequate data is + available to the Court, or can be called for by it, in the light of which it can grant or refuse relief + and while granting it, modify it by the imposition of all or any of the conditions mentioned in + Section 437. + This is not to say that anticipatory bail, if granted, must be granted without the imposition of any + conditions. That will be plainly contrary to the very terms of Section + 438. Though sub-section (1) of that section says that the Court "may, if it thinks fit" issue the + necessary direction for bail, sub-section (2) confers on the Court the power to include such + conditions in the direction as it may think fit in the light of the facts of the particular case, + including the conditions mentioned in clauses (i) to (iv) of that sub-section. The controversy + therefore is not whether the Court has the power to impose conditions while granting anticipatory + bail. It clearly and expressly has that power. The true question is whether by a process of + construction, the amplitude of judicial discretion which is given to the High Court and the Court + of Session, to impose such conditions as they may think fit while granting anticipatory bail, + should be cut down by reading into the statute condition which are not to be found therein, like + those evolved by the High Court or canvassed by the learned Additional Solicitor General. Our + answer, clearly and emphatically, is in the negative. The High Court and the Court of Session to + whom the application for anticipatory bail is made ought to be left free in the exercise of their + judicial discretion to grant bail if they consider it fit so to do on the particular facts and + circumstances of the case and on such conditions as the case may warrant. Similarly, they must + be left free to refuse bail if the circumstances of the case so warrant, on considerations similar to + those mentioned in Section 437 or which are generally considered to be relevant under Section + 439 of the Code. + + Generalisations on matters which rest on discretion and the attempt to discover formulae of + universal application when facts are bound to differ from case to case frustrate the very purpose + of conferring discretion. No two cases are alike on facts and therefore, Courts have to be allowed + a little free play in the joints if the conferment of discretionary power is to be meaningful. There + is no risk involved in entrusting a wide discretion to the Court of Session and the High Court in + granting anticipatory bail because, firstly, these are higher courts manned by experienced + persons, secondly, their orders are not final but are open to appellate or revisional scrutiny and + above all because, discretion has always to be exercised by courts judicially and not according to + whim, caprice or fancy. On the other hand, there is a risk in foreclosing categories of cases in + which anticipatory bail may be allowed because life throws up unforeseen possibilities and offers + new challenges. Judicial discretion has to be free enough to be able to take these possibilities in + its stride and to meet these challenges. While dealing with the necessity for preserving judicial + discretion unhampered by rules of general application, Earl Loreburn L. C. said in Hyman and + Anr. v. Rose : + "I desire in the first instance to point out that the discretion given by the section is very + wide........... Now it seems to me that when the Act is so express to provide a wide discretion,...it + is not advisable to lay down any rigid rules for guiding that discretion. I do not doubt that the + rules enunciated by the Master of the Rolls in the present case are useful maxims in general, and + that in general they reflect the point of view from which judges would regard an application for + relief. But I think it ought to be distinctly understood that there may be cases in which any or all + of them may be disregarded. If it were otherwise, the free discretion given by the statute would + be fettered by limitations which have nowhere been enacted. It is one thing to decide what is the + true meaning of the language contained in an Act of Parliament. It is quite a different thing to + place conditions upon a free discretion entrusted by statute to the Court where the conditions are + not based upon statutory enactment at all. It is not safe, I think, to say that the Court must and + will always insist upon certain things when the Act does not require them, and the facts of some + unforeseen case may make the Court wish it had kept a free hand." + Judges have to decide cases as they come before them, mindful of the need to keep passions and + prejudices out of their decisions. And it will be strange if, by employing judicial artifices and + techniques, we cut down the discretion so wisely conferred upon the Courts, by devising a + formula which will confine the power to grant anticipatory bail within a strait-jacket. While + laying down cast-iron rules in a matter like granting anticipatory bail, as the High Court has + done, it is apt to be overlooked that even Judges can have but an imperfect awareness of the + needs of new situations. Life is never static and every situation has to be assessed in the context + of emerging concerns as and when it arises. Therefore, even if we were to frame a 'Code for the + grant of anticipatory bail', which really is the business of the legislature, it can at best furnish + broad guide-lines and cannot compel blind adherence. In which case to grant bail and in which to + refuse it is, in the very nature of things, a matter of discretion. But apart from the fact that the + question is inherently of a kind which calls for the use of discretion from case to case, the + legislature has, in terms express, relegated the decision of that question to the discretion of the + court, by providing that it may grant bail "if it thinks fit". The concern of the courts generally is + to preserve their discretion without meaning to abuse it. It will be strange if we exhibit concern + to stultify the discretion conferred upon the Courts by law. + + A close look at some of the rules in the eight-point code formulated by he High Court will show + how difficult it is to apply them in practice. The seventh proposition says : + "The larger interest of the public and State demand that in serious cases like economic offences + involving blatant corruption at the higher rungs of the executive and political power, the + discretion under Section 438 of the Code should not be exercised." + How can the Court, even if it had a third eye, assess the blatantness of corruption at the stage of + anticipatory bail ? And will it be correct to say that blatantness of the accusation will suffice for + rejecting bail, even if the applicant's conduct is painted in colours too lurid to be true ? The + eighth proposition rule framed by the High Court says : + "Mere general allegations of mala fides in the petition are inadequate. The court must be satisfied + on materials before it that the allegations of mala fide are substantial and the accusation appears + to be false and groundless." + Does this rule mean, and that is the argument of the learned Additional Solicitor-General, that + the anticipatory bail cannot be granted unless it is alleged (and naturally, also shown, because + mere allegation is never enough) that the proposed accusations are mala fide ? It is + understandable that if mala fides are shown anticipatory bail should be granted in the generality + of cases. But it is not easy to appreciate why an application for anticipatory bail must be rejected + unless the accusation is shown to be mala fide. This, truly, is the risk involved in framing rules + by judicial construction. Discretion, therefore, ought to be permitted to remain in the domain of + discretion, to be exercised objectively and open to correction by the higher courts. The safety of + discretionary power lies in this twin protection which provides a safeguard against its abuse. + According to the sixth proposition framed by the High Court, the discretion under Section 438 + cannot be exercised in regard to offences punishable with death or imprisonment for life unless, + the court at the stage of granting anticipatory bail, is satisfied that such a charge appears to be + false or groundless. Now, Section 438 confers on the High Court and the Court of Session the + power to grant anticipatory bail if the applicant has reason to believe that he may be arrested on + an accusation of having committed "a non-bailable offence". We see no warrant for reading into + this provision the conditions subject to which bail can be granted under Section 437(1) of the + Code. That section, while conferring the power to grant bail in cases of non-bailable offences, + provides by way of an exception that a person accused or suspected of the commission of a non- + bailable offence "shall not be so released" if there appear to be reasonable grounds for believing + that he has been guilty of an offence punishable with death or imprisonment for life. If it was + intended that the exception contained in Section 437(1) should govern the grant of relief under + Section 438(1), nothing would have been easier for the legislature than to introduce into the latter + section a similar provision. We have already pointed out the basic distinction between these two + sections. Section 437 applies only after a person, who is alleged to have committed a non- + bailable offence, is arrested or detained without warrant or appears or is brought before a court. + Section 438 applies before the arrest is made and, in fact, one of the pre-conditions of its + application is that the person, who applies for relief under it, must be able to show that he has + reason to believe that "he may be arrested", which plainly means that he is not yet arrested. The + nexus which this distinction bears with the grant or refusal of bail is that in cases falling under + + Section 437, there is some concrete data on the basis of which it is possible to show that there + appear to be reasonable grounds for believing that the applicant has been guilty of an offence + punishable with death or imprisonment for life. In cases falling under Section 438 that stage is + still to arrive and, in the generality of cases thereunder, it would be premature and indeed + difficult to predicate that there are or are not reasonable grounds for so believing. The foundation + of the belief spoken of in Section 437(1), by reason of which the court cannot release the + applicant on bail is, normally, the credibility of the allegations contained in the First Information + Report. In the majority of cases falling under Section 438, that data will be lacking for forming + the requisite belief. If at all the conditions mentioned in Section 437 are to be read into the + provisions of Section 438, the transplantation shall have to be done without amputation. That is + to say, on the reasoning of the High Court, Section 438(1) shall have to be read as containing the + clause that the applicant "shall not" be released on bail "if there appear reasonable grounds for + believing that he has been guilty of an offence punishable with death or imprisonment for life". + In this process one shall have overlooked that whereas, the power under Section 438(1) can be + exercised if the High Court or the Court of Session "thinks fits to do so, Section 437(1) does not + confer the power to grant bail in the same wide terms. The expression "if it thinks fit", which + occurs in Section 438(1) in relation to the power of the High Court or the Court of Session, is + conspicuously absent in Section 437(1). We see no valid reason for re-writing Section 438 with a + view, not to expanding the scope and ambit of the discretion conferred on the High Court and the + Court of Session but, for the purpose of limiting it. Accordingly, we are unable to endorse the + view of the High Court that ancipatory bail cannot be granted in respect of offences like criminal + breach of trust for the mere reason that the punishment provided therefor is imprisonment for + life. Circumstances may broadly justify the grant of bail in such cases too, though of course, the + Court is free to refuse anticipatory bail in any case if there is material before it justifying such + refusal. + A great deal has been said by the High Court on the fifth proposition framed by it, according to + which, inter alia, the power under Section 438 should not be exercised if the investigating agency + can make a reasonable claim that it can secure incriminating material from information likely to + be received from the offender under Section 27 of the Evidence Act. According to the High + Court, it is the right and the duty of the police to investigate into offences brought to their notice + and therefore, courts should be careful not to exercise their powers in a manner which is + calculated to cause interference therewith. It is true that the functions of the Judiciary and the + police are in a sense complementary and not overlapping. And, as observed by the Privy Council + in King Emperor v. Khwaja Nasir Ahmed : + "Just as it is essential that every one accused of a crime should have free access to a court of + justice so that he may be duly acquitted if found not guilty of the offence with which he is + charged, so it is of the utmost importance that the judiciary should not interfere with the police in + matters which are within their province and into which the law imposes on them the duty of + inquiry. The functions of the Judiciary and the Police are complementary, not overlapping, and + the combination of the individual liberty with a due observance of law and order is only to be + obtained by leaving each to exercise its own function...." + But, these remarks, may it be remembered, were made by the Privy Council while rejecting the + view of the Lahore High Court that it had inherent jurisdiction under the old Section 561A, + + Criminal Procedure Code, to quash all proceedings taken by the police in pursuance of two First + Information Reports made to them. An order quashing such proceedings puts an end to the + proceedings with the inevitable result that all investigation into the accusation comes to a halt. + Therefore, it was held that the Court cannot, in the exercise of its inherent powers, virtually + direct that the police shall not investigate into the charges contained in the F.I.R. We are + concerned here with a situation of an altogether different kind. An order of anticipatory bail does + not in any way, directly or indirectly, take away from the police their right to investigate into + charges made or to be made against the person released on bail. In fact, two of the usual + conditions incorporated in a direction issued under Section 438 (1) are those recommended in + Sub-section (2) (i) and + (ii) which require the applicant to co-operate with the police and to assure that he shall not + tamper with the witnesses during and after the investigation. While granting relief under Section + 438 (1), appropriate conditions can be imposed under Section 438 (2) so as to ensure an + uninterrupted investigation. One of such conditions can even be that in the event of the police + making out a case of a likely discovery under Section 27 of the Evidence Act, the person + released on bail shall be liable to be taken in police custody for facilitating the discovery. + Besides, if and when the occasion arises, it may be possible for the prosecution to claim the + benefit of Section 27 of the Evidence Act in regard to a discovery of facts made in pursuance of + information supplied by a person released on bail by invoking the principle stated by this Court + in State of U.P. v. Deoman Upadhyaya to the effect that when a person not in custody + approaches a police officer investigating an offence and offers to give information leading to the + discovery of a fact, having a bearing on the charge which may be made against him, he may + appropriately be deemed to have surrendered himself to the police. The broad foundation of this + rule is stated to be that Section 46 of the Code of Criminal Procedure does not contemplate any + formality before a person can be said to be taken in custody: submission to the custody by word + or action by a person is sufficient. For similar reasons, we are unable to agree that anticipatory + bail should be refused if a legitimate case for the remand of the offender to the police custody + under Section 167 (2) of the Code is made out by the investigating agency. + It is unnecessary to consider the third proposition of the High Court in any great details because + we have already indicated that there is no justification for reading into Section 438 the + limitations mentioned in Section 437. The High Court says that such limitations are implicit in + Section 438 but, with respect, no such implications arise or can be read into that section. The + plenitudes of the section must be given its full play. + The High Court says in its fourth proposition that in addition to the limitations mentioned in + Section 437, the petitioner must make out a "special case" for the exercise of the power to grant + anticipatory bail. This, virtually, reduces the salutary power conferred by Section 438 to a dead + letter. In its anxiety, otherwise just, to show that the power conferred by Section 438 is not + "unguided or uncanalised", the High Court has subjected that power to a restraint which will + have the effect of making the power utterly unguided. To say that the applicant must make out a + "special case" for the exercise of the power to grant anticipatory bail is really to say nothing. The + applicant has undoubtedly to make out a case for the grant of anticipatory bail. But one cannot go + further and say that he must make out a "special case". We do not see why the provisions of + Section 438 should be suspected as containing something volatile or incendiary, which needs to + + be handled with the greatest care and caution imaginable. A wise exercise of judicial power + inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. + Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it + is required to be exercised, has to be used with due care and caution. In fact, an awareness of the + context in which the discretion is required to be exercised and of the reasonably foreseeable + consequences of its use, is the hall mark of a prudent exercise of judicial discretion. One ought + not to make a bugbear of the power to grant anticipatory bail. + By proposition No. 1 the High Court says that the power conferred by Section 438 is "of an + extraordinary character and must be exercised sparingly in exceptional cases only". It may + perhaps be right to describe the power as of an extraordinary character because ordinarily the + bail is applied for under Section 437 or Section 439. These Sections deal with the power to grant + or refuse bail to a person who is in the custody of the police and that is the ordinary situation in + which bail is generally applied for. But this does not justify the conclusion that the power must + be exercised in exceptional cases only, because it is of an extra-ordinary character. We will + really be saying once too often that all discretion has to be exercised with care and + circumspection depending on circumstances justifying its exercise. It is unnecessary to travel + beyond it and subject the wide power conferred by the legislature to a rigorous code of self- + imposed limitations. + It remains only to consider the second proposition formulated by the High Court, which is the + only one with which we are disposed to agree but we will say more about it a little later. + It will be appropriate at this stage to refer to a decision of this Court in Balchand Jain v. State of + Madhya Pradesh on which the High Court has leaned heavily in formulating its propositions. + One of us, Bhagwati J. who spoke for himself and A. C. Gupta, J. observed in that case that: + "the power of granting 'anticipatory bail' is somewhat extraordinary in character and it is only in + exceptional cases where it appears that a person might be falsely implicated, or a frivolous case + might be launched against him, or "there are reasonable grounds for holding that a person + accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail" that + such power is to be exercised." + Fazal Ali, J. who delivered a separate judgment of concurrence also observed that: + "an order for anticipatory bail is an extraordinary remedy available in special cases". and + proceeded to say: + "As Section 438 immediately follows s. 437 which is the main provision for bail in respect of + non- bailable offences, it is manifest that the conditions imposed by s. 437 (1) are implicitly + contained in s. 438 of the Code. Otherwise the result would be that a person who is accused of + murder can get away under s. 438 by obtaining an order for anticipatory bail without the + necessity of proving that there were reasonable grounds for believing that he was not guilty of + offence punishable with death or imprisonment for life. Such a course would render the + provisions of s. 437 nugatory and will give a free licence to the accused persons charged with + non-bailable offences to get easy bail by approaching the Court under s. 438 and by-passing s. + + 437 of the Code. This, we feel, could never have been the intention of the Legislature. Section + 438 does not contain unguided or uncanalised powers to pass an order for anticipatory bail, but + such an order being of an exceptional type can only be passed if, apart from the conditions + mentioned in s. 437, there is a special case made out for passing the order. The words "for a + direction under this section" and "Court may, if it thinks fit, direct" clearly show that the Court + has to be guided by a large number of considerations including those mentioned in s. 437 of the + Code." + While stating his conclusions Fazal Ali, J. reiterated in conclusion no.3 that "Section 438 of the + Code is an extraordinary remedy and should be resorted to only in special cases." + We hold the decision in Balchand Jain (supra) in great respect but it is necessary to remember + that the question as regards the interpretation of Section 438 did not at all arise in that case. Fazal + Ali, J. has stated in paragraph 3 of his judgment that "the only point" which arose for + consideration before the Court was whether the provisions of Section 438 relating to anticipatory + bail stand overruled and repealed by virtue of Rule 184 of the Defence and Internal Security of + India Rules, 1971 or whether both the provisions can, by the rule of harmonious interpretation, + exist side by side. Bhagwati, J. has also stated in his judgment, after adverting to Section 438 that + Rule 184 is what the Court was concerned with in the appeal. The observations made in + Balchand Jain (supra) regarding the nature of the power conferred by Section 438 and regarding + the question whether the conditions mentioned in Section 437 should be read into Section 438 + cannot therefore be treated as concluding the points which arise directly for our consideration. + We agree, with respect, that the power conferred by Section 438 is of an extraordinary character + in the sense indicated above, namely, that it is not ordinarily resorted to like the power conferred + by Sections 437 and + 439. We also agree that the power to grant anticipatory bail should be exercised with due care + and circumspection but beyond that, it is not possible to agree with the observations made in + Balchand Jain (supra) in an altogether different context on an altogether different point. + We find a great deal of substance in Mr. Tarkunde's submission that since denial of bail amounts + to deprivation of personal liberty, the Court should lean against the imposition of unnecessary + restrictions on the scope of Section 438, especially when no such restrictions have been imposed + by the legislature in the terms of that section. Section 438 is a procedural provision which is + concerned with the personal liberty of the individual, who is entitled to the benefit of the + presumption of innocence since he is not, on the date of his application for anticipatory bail, + convicted of the offence in respect of which he seeks bail. An overgenerous infusion of + constraints and conditions which are not to be found in Section 438 can make its provisions + constitutionally vulnerable since the right to personal freedom cannot be made to depend on + com- + pliance with unreasonable restrictions. The beneficient provision contained in Section 438 must + be saved, not jettisoned. No doubt can linger after the decision in Maneka Gandhi that in order to + meet the challenge of Article 21 of the Constitution, the procedure established by law for + depriving a person of his liberty must be fair, just and reasonable. Section 438, in the form in + which it is conceived by the legislature, is open to no exception on the ground that it prescribes a + + procedure which is unjust or unfair. We ought, at all costs, to avoid throwing it open to a + Constitutional challenge by reading words in it which are not be found therein. + It is not necessary to refer to decisions which deal with the right to ordinary bail because that + right does not furnish an exact parallel to the right to anticipatory bail. It is, however, interesting + that as long back as in 1924 it was held by the High Court of Calcutta in Nagendra v. King + Emperor that the object of bail is to secure the attendance of the accused at the trial, that the + proper test to be applied in the solution of the question whether bail should be granted or refused + is whether it is probable that the party will appear to take his trial and that it is indisputable that + bail is not to be withheld as a punishment. In two other cases which, significantly, are the + 'Meerut Conspiracy cases' observations are to be found regarding the right to bail which observe + a special mention. In K. N. Joglekar v. Emperor it was observed, while dealing with Section 498 + which corresponds to the present Section 439 of the Code, that it conferred upon the Sessions + Judge or the High Court wide powers to grant bail which were not handicapped by the + restrictions in the preceding Section 497 which corresponds to the present Section 437. It was + observed by the Court that there was no hard and fast rule and no inflexible principle governing + the exercise of the discretion conferred by Section 498 and that the only principle which was + established was that the discretion should be exercised judiciously. In Emperor v. H. L. + Hutchinson it was said that it was very unwise to make an attempt to lay down any particular + rules which will bind the High Court, having regard to the fact that the legislature itself left the + discretion of the Court unfettered. According to the High Court, the variety of cases that may + arise from time to time cannot be safely classified and it is dangerous to make an attempt to + classify the cases and to say that in particular classes a bail may be granted but not in other + classes. It was observed that the principle to be deduced from the various sections in the + Criminal Procedure Code was that grant of bail is the rule and refusal is the exception. An + accused person who enjoys freedom is in a much better position to look after his case and to + properly defend himself than if he were in custody. As a presumably innocent person he is + therefore entitled to freedom and every opportunity to look after his own case. A presumably + innocent person must have his freedom to enable him to establish his innocence. + Coming nearer home, it was observed by Krishna Iyer, J., in Gudikanti Narasimhulu v. Public + Prosecutor, High Court of Andhra Pradesh that "the issue of bail is one of liberty, justice, public + safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail + is integral to a socially sensitized judicial process. After all, personal liberty of an accused or + convict is fundamental, suffering lawful eclipse only in terms of procedure established by law. + The last four words of Article 21 are the life of that human right." + In Gurcharan Singh v. State (Delhi Admn.) it was observed by Goswami, J. who spoke for the + Court, that "there cannot be an inexorable formula in the matter of granting bail. The facts and + circumstances of each case will govern the exercise of judicial discretion in granting or + cancelling bail." + In American Jurisprudence (2d, Volume 8, page 806, para + 39) it is stated: + + "Where the granting of bail lies within the discretion of the court, the granting or denial is + regulated, to a large extent, by the facts and circumstances of each particular case. Since the + object of the detention or imprisonment of the accused is to secure his appearance and + submission to the jurisdiction and the judgment of the court, the primary inquiry is whether a + recognizance or bond would effect that end." + It is thus clear that the question whether to grant bail or not depends for its answer upon a variety + of circumstances, the cumulative effect of which must enter into the judicial verdict. Any one + single circumstance cannot be treated as of universal validity or as necessarily justifying the + grant or refusal of bail. + In regard to anticipatory bail, if the proposed accusation appears to stem not from motives of + furthering the ends of justice but from some ulterior motive, the object being to injure and + humiliate the applicant by having him arrested, a direction for the release of the applicant on bail + in the event of his arrest would generally be made. On the other hand, if it appears likely, + considering the antecedents of the applicant, that taking advantage of the order of anticipatory + bail he will flee from justice, such an order would not be made. But the converse of these + propositions is not necessarily true. That is to say, it cannot be laid down as an inexorable rule + that anticipatory bail cannot be granted unless the proposed accusation appears to be actuated by + mala fides; and, equally, that anticipatory bail must be granted if there is no fear that the + applicant will abscond. There are several other considerations, too numerous to enumerate, the + combined effect of which must weigh with the court while granting or rejecting anticipatory bail. + The nature and seriousness of the proposed charges, the context of the events likely to lead to the + making of the charges, a reasonable possibility of the applicant's presence not being secured at + the trial, a reasonable apprehension that witnesses will be tampered with and "the larger interests + of the public or the state" are some of the considerations which the court has to keep in mind + while deciding an application for anticipatory bail. The relevance of these considerations was + pointed out in The State v. Captain Jagjit Singh, which, though, was a case under the old Section + 498 which corresponds to the present Section 439 of the Code. It is of paramount consideration + to remember that the freedom of the individual is as necessary for the survival of the society as it + is for the egoistic purposes of the individual. A person seeking anticipatory bail is still a free man + entitled to the presumption of innocence. He is willing to submit to restraints on his freedom, by + the acceptance of conditions which the court may think fit to impose, in consideration of the + assurance that if arrested, he shall be enlarged on bail. + A word of caution may perhaps be necessary in the evaluation of the consideration whether the + applicant is likely to abscond. There can be no presumption that the wealthy and the mighty will + submit themselves to trial and that the humble and the poor will run away from the course of + justice, any more than there can be a presumption that the former are not likely to commit a + crime and the latter are more likely to commit it. In his charge to the grand jury at Salisbury + Assizes, 1899 (to which Krishna Iyer, J. has referred in Gudikanti), Lord Russel of Killowen + said: + " ............. it was the duty of magistrates to admit accused persons to bail, wherever practicable, + unless there were strong grounds for supposing that such persons would not appear to take their + trial. It was not the poorer classes who did not appear, for their circumstances were such as to tie + + them to the place where they carried on their work. They had not the golden wings with which to + fly from justice." + This, incidentally, will serve to show how no hard and fast rules can be laid down in + discretionary matters like the grant or refusal of bail, whether anticipatory or otherwise. No such + rules can be laid down for the simple reason that a circumstance which, in a given case, turns out + to be conclusive, may have no more than ordinary signification in another case. + We would, therefore, prefer to leave the High Court and the Court of Session to exercise their + jurisdiction under Section 438 by a wise and careful use of their discretion which, by their long + training and experience, they are ideally suited to do. The ends of justice will be better served by + trusting these courts to act objectively and in consonance with principles governing the grant of + bail which are recognised over the years, than by divesting them of their discretion which the + legislature has conferred upon them, by laying down inflexible rules of general application. It is + customary, almost chronic, to take a statute as one finds it on the grounds that, after all "the + legislature in its wisdom" has thought it fit to use a particular expression. A convention may + usefully grow whereby the High Court and the Court of Session may be trusted to exercise their + discretionary powers in their wisdom, especially when the discretion is entrusted to their care by + the legislature in its wisdom. If they err, they are liable to be corrected. + This should be the end of the matter, but it is necessary to clarify a few points which have given + rise to certain misgivings. + Section 438(1) of the Code lays down a condition which has to be satisfied before anticipatory + bail can be granted. The applicant must show that he has "reason to believe" that he may be + arrested for a non-bailable offence. The use of the expression "reason to believe" shows that the + belief that the applicant may be so arrested must be founded on reasonable grounds. Mere 'fear' is + not 'belief', for which reason it is not enough for the applicant to show that he has some sort of a + vague apprehension that some one is going to make an accusation against him, in pursuance of + which he may be arrested. The grounds on which the belief of the applicant is based that he may + be arrested for a non- bailable offence, must be capable of being examined by the court + objectively, because it is then alone that the court can determine whether the applicant has reason + to believe that he may be so arrested. Section 438(1), therefore, cannot be invoked on the basis of + vague and general allegations, as if to arm oneself in perpetuity against a possible arrest. + Otherwise, the number of applications for anticipatory bail will be as large as, at any rate, the + adult populace. Anticipatory bail is a device to secure the individual's liberty; it is neither a + passport to the commission of crimes nor a shield against any and all kinds of accusations, likely + or unlikely. + Secondly, if an application for anticipatory bail is made to the High Court or the Court of Session + it must apply its own mind to the question and decide whether a case has been made out for + granting such relief. It cannot leave the question for the decision of the Magistrate concerned + under Section 437 of the Code, as and when an occasion arises. Such a course will defeat the + very object of Section 438. + + Thirdly, the filing of a First Information Report is not a condition precedent to the exercise of the + power under Section 438. The imminence of a likely arrest founded on a reasonable belief can be + shown to exist even if an F.I.R. is not yet filed. + Fourthly, anticipatory bail can be granted even after an F.I.R. is filed, so long as the applicant has + not been arrested. + Fifthly, the provisions of Section 438 cannot be invoked after the arrest of the accused. The grant + of "anticipatory bail" to an accused who is under arrest involves a contradiction in terms, in so + far as the offence or offences for which he is arrested, are concerned. After arrest, the accused + must seek his remedy under Section 437 or Section 439 of the Code, if he wants to be released + on bail in respect of the offence or offences for which he is arrested. + We have said that there is one proposition formulated by the High Court with which we are + inclined to agree. That is preposition No. (2). We agree that a 'blanket order' of anticipatory bail + should not generally be passed. This flows from the very language of the section which, as + discussed above, requires the applicant to show that he has "reason to believe" that he may be + arrested. A belief can be said to be founded on reasonable grounds only if there is something + tangible to go by on the basis of which it can be said that the applicant's apprehension that he + may be arrested is genuine. That is why, normally, a direction should not issue under Section + 438(1) to the effect that the applicant shall be released on bail "whenever arrested for whichever + offence whatsoever." That is what is meant by a 'blanket order' of anticipatory bail, an order + which serves as a blanket to cover or protect any and every kind of allegedly unlawful activity, in + fact any eventuality, likely or unlikely regarding which, no concrete information can possibly be + had. The rationale of a direction under Section 438(1) is the belief of the applicant founded on + reasonable grounds that he may be arrested for a non-bailable offence. It is unrealistic to expect + the applicant to draw up his application with the meticulousness of a pleading in a civil case and + such is not requirement of the section. But specific events and facts must be disclosed by the + applicant in order to enable the court to judge of the reasonableness of his belief, the existence of + which is the sine qua non of the exercise of power conferred by the section. + Apart from the fact that the very language of the statute compels this construction, there is an + important principle involved in the insistence that facts, on the basis of which a direction under + Section 438 (1) is sought, must be clear and specific, not vague and general. It is only by the + observance of that principle that a possible conflict between the right of an individual to his + liberty and the right of the police to investigate into crimes reported to them can be avoided. + A blanket order of anticipatory bail is bound to cause serious interference with both the right and + the duty of the police in the matter of investigation because, regardless of what kind of offence is + alleged to have been committed by the applicant and when, an order of bail which comprehends + allegedly unlawful activity of any description whatsoever, will prevent the police from arresting + the applicant even if he commits, say, a murder in the presence of the public. Such an order can + then become a charter of lawlessness and a weapon to stifle prompt investigation into offences + which could not possibly be predicated when the order was passed. Therefore, the court which + grants anticipatory bail must take care to specify the offence or offences in respect of which + alone the order will be effective. The power should not be exercised in a vacuum. + + There was some discussion before us on certain minor modalities regarding the passing of bail + orders under Section 438(1). Can an order of bail be passed under that section without notice to + the public prosecutor? It can be. But notice should issue to the public prosecutor or the + Government Advocate forthwith and the question of bail should be re-examined in the light of + the respective contentions of the parties. The ad-interim order too must conform to the + requirements of the section and suitable conditions should be imposed on the applicant even at + that stage. Should the operation of an order passed under Section 438(1) be limited in point of + time? Not necessarily. The Court may, if there are reasons for doing so, limit the operation of the + order to a short period until after the filing of an F.I.R. in respect of the matter covered by the + order. The applicant may in such cases be directed to obtain an order of bail under Section 437 or + 439 of the Code within a reasonably short period after the filing of the F.I.R. as aforesaid. But + this need not be followed as an invariable rule. The normal role should be not to limit the + operation of the order in relation to a period of time. + During the last couple of years this Court, while dealing with appeals against orders passed by + various High Courts, has granted anticipatory bail to many a person by imposing conditions set + out in Section 438(2)(i), (ii) and + (iii). The Court has, in addition, directed in most of those cases that (a) the applicant should + surrender himself to the police for a brief period if a discovery is to be made under Section 27 of + the Evidence Act or that he should be deemed to have surrendered himself if such a discovery is + to be made. In certain exceptional cases, the Court has, in view of the material placed before it, + directed that the order of anticipatory bail will remain in operation only for a week or so until + after the filing of the F.I.R. in respect of matters covered by the order. These orders, on the + whole, have worked satisfactorily, causing the least inconvenience to the individuals concerned + and least interference with the investigational rights of the police. The Court has attempted + through those orders to strike a balance between the individual's right to personal freedom and + the investigational rights of the police. The appellants who were refused anticipatory bail by + various courts have long since been released by this Court under Section 438(1) of the Code. + The various appeals and Special Leave petitions before us will stand disposed of in terms of this + Judgment. The judgment of the Full Bench of the Punjab and Haryana High Court, which was + treated as the main case under appeal, is substantially set aside as indicated during the course of + this Judgment. + S.R. Appeals allowed in part. +