2012 (5) TMI 767 - SC - Indian Laws

Grant of bail - Held that - The irresistible conclusion is that the impugned orders directing enlargement of bail of the accused persons namely Uttam Das Abhimanyu Das and Murlidhar Patra by the Magistrate on their surrendering are wholly unsustainable and bound to founder and accordingly the said directions are set aside. Consequently the bail bonds of the aforenamed accused persons are cancelled and they shall be taken into custody forthwith. It needs no special emphasis to state that they are entitled to move applications for grant of bail under Section 439 of the Code which shall be considered on their own merits.

Issues Involved:

1. Legitimacy and sustainability of the High Court's orders under Section 438 of the Code of Criminal Procedure.
2. Interpretation and application of anticipatory bail provisions.
3. The High Court's authority to direct bail upon surrender despite denying anticipatory bail.

Detailed Analysis:

1. Legitimacy and Sustainability of the High Court's Orders under Section 438 of the Code of Criminal Procedure:

The Supreme Court examined whether the High Court's orders directing bail upon surrender, despite denying anticipatory bail, were legally sustainable. The High Court had expressed its disinclination to grant anticipatory bail but directed that the accused be released on bail upon surrendering before the Magistrate. The Supreme Court found this approach to be legally unsustainable. It emphasized that such directions contradicted the statutory provisions and the principles laid down in previous judgments, particularly the Constitution Bench decision in *Gurbaksh Singh Sibbia v. State of Punjab (AIR 1980 SC 1632)*. The Supreme Court concluded that the High Court's orders were in clear violation of the statutory language and the judicial principles governing anticipatory bail.

2. Interpretation and Application of Anticipatory Bail Provisions:

The Supreme Court referred to Section 438 of the Code of Criminal Procedure, which allows a person to apply for anticipatory bail if they anticipate arrest for a non-bailable offense. The Court reiterated that anticipatory bail is a pre-arrest legal process that provides protection against police custody upon arrest. The Constitution Bench in *Gurbaksh Singh Sibbia* had clarified that anticipatory bail should be granted with due care and circumspection, considering factors such as the nature and gravity of the accusation, the applicant's antecedents, and the likelihood of the applicant fleeing from justice.

The Court also discussed the principles laid down in *Savitri Agarwal v. State of Maharashtra and Anr. (2009) 8 SCC 325)*, emphasizing that the applicant must have reasonable grounds to believe they may be arrested for a non-bailable offense. The Court noted that anticipatory bail cannot be invoked after arrest, and interim orders must conform to the requirements of Section 438, including issuing notice to the Public Prosecutor.

3. The High Court's Authority to Direct Bail upon Surrender Despite Denying Anticipatory Bail:

The Supreme Court scrutinized the High Court's orders directing bail upon surrender, despite denying anticipatory bail. It emphasized that the High Court's approach was contradictory and legally unsound. The Court reiterated that anticipatory bail and regular bail under Section 439 of the Code are distinct processes, and the High Court's directions effectively bypassed the statutory requirements for regular bail.

The Supreme Court highlighted that the High Court's orders undermined the statutory command and the principles established in *Gurbaksh Singh Sibbia*. It stressed that a court of law must act within the statutory framework and cannot deviate from it. The Court concluded that the High Court's orders were unsustainable and directed the cancellation of the bail bonds of the accused, who were to be taken into custody forthwith. The accused were, however, entitled to apply for regular bail under Section 439 of the Code, which would be considered on its own merits.

Conclusion:

The Supreme Court set aside the High Court's orders directing bail upon surrender, finding them legally unsustainable and contradictory to the statutory provisions and judicial principles governing anticipatory bail. The Court emphasized the importance of adhering to the statutory framework and the principles laid down in previous judgments, particularly the Constitution Bench decision in *Gurbaksh Singh Sibbia*. The appeals were disposed of, with the accused directed to seek regular bail under Section 439 of the Code.

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