1980 (4) TMI 295 - SC - Indian Laws

Anticipatory bail - Scope and application of Section 438 of the Code of Criminal Procedure 1973 - issuance of direction for the grant of bail to a person who apprehends arrest - Whether courts had the inherent power to pass an order of bail in anticipation of arrest? HELD THAT - In regard to anticipatory bail if the proposed accusation appears to stem not from motives of furthering the ends of justice but from some ulterior motive the object being to injure and humiliate the applicant by having him arrested a direction for the release of the 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. 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. 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. 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. Appeals allowed in part.

Summary

Issues Involved:
1. Scope and application of Section 438 of the Code of Criminal Procedure, 1973.
2. Conditions and limitations for granting anticipatory bail.
3. Judicial discretion in granting anticipatory bail.
4. Constitutional implications of Section 438 with respect to personal liberty.
5. Validity of blanket orders for anticipatory bail.
6. Procedural aspects concerning the issuance of anticipatory bail.

Issue-wise Detailed Analysis:

1. Scope and Application of Section 438:
The judgment primarily addresses the balance between personal liberty and the investigational powers of the police under Section 438 of the Code of Criminal Procedure, 1973, which provides for the issuance of directions for the grant of anticipatory bail. The court emphasized that the power to grant anticipatory bail is discretionary and should be exercised judiciously based on the facts and circumstances of each case.

2. Conditions and Limitations for Granting Anticipatory Bail:
The Full Bench of the Punjab and Haryana High Court had laid down several propositions, including that the power under Section 438 is of an extraordinary character and must be exercised sparingly. The Supreme Court, however, found that the High Court's constraints, such as requiring a "special case" for the exercise of this power, were overly restrictive and not supported by the statute. The court clarified that conditions under Section 437 should not be read into Section 438, and the wide discretion conferred by the latter should not be curtailed.

3. Judicial Discretion in Granting Anticipatory Bail:
The Supreme Court emphasized the importance of judicial discretion in granting anticipatory bail, noting that the High Court and the Court of Session should be trusted to exercise their discretion judiciously. The court rejected the idea of imposing rigid rules or conditions not found in the statute, arguing that doing so would stultify the discretion conferred by the legislature.

4. Constitutional Implications of Section 438 with Respect to Personal Liberty:
The court highlighted that Section 438 is a procedural provision concerned with personal liberty, which must be protected. The denial of bail amounts to the deprivation of personal liberty, and any restrictions on the scope of Section 438 must be fair, just, and reasonable to meet the requirements of Article 21 of the Constitution. The court found that the High Court's propositions could make the provision constitutionally vulnerable.

5. Validity of Blanket Orders for Anticipatory Bail:
The court agreed with the High Court that a "blanket order" of anticipatory bail should not generally be passed. Such an order, which covers any and every kind of allegedly unlawful activity, would interfere with the police's right and duty to investigate. The court stressed that specific facts and events must be disclosed to justify the applicant's belief that they may be arrested for a non-bailable offense.

6. Procedural Aspects Concerning the Issuance of Anticipatory Bail:
The court provided several clarifications on procedural aspects:
- An application for anticipatory bail must show reasonable grounds for the applicant's belief that they may be arrested.
- The court must decide whether a case for anticipatory bail has been made out and cannot leave this question to the Magistrate.
- The filing of a First Information Report (FIR) is not a condition precedent for granting anticipatory bail.
- Anticipatory bail can be granted even after an FIR is filed, as long as the applicant has not been arrested.
- The provisions of Section 438 cannot be invoked after the arrest of the accused.
- The court may impose conditions under Section 438(2) to ensure an uninterrupted investigation.

Conclusion:
The Supreme Court allowed the appeals in part, setting aside the judgment of the Full Bench of the Punjab and Haryana High Court to the extent that it imposed undue restrictions on the power to grant anticipatory bail. The court emphasized the need for judicial discretion and the protection of personal liberty, while also ensuring that the investigational rights of the police are not unduly hampered.