TMI Blog2020 (1) TMI 1193X X X X Extracts X X X X X X X X Extracts X X X X ..... ces of any case, where the allegations relating to the commission of offences of a serious nature, with certain special conditions, is a matter of discretion to be exercised, having regard to the nature of the offences, the facts shown, the background of the applicant, the likelihood of his fleeing justice (or not fleeing justice); likelihood of co-operation or non-co-operation with the investigating agency or police, etc. There can be no inflexible time frame for which an order of anticipatory bail can continue. The courts and can, use their discretion, having regard to the offence, the peculiar facts, the role of the offender, circumstances relating to him, his likelihood of subverting justice (or a fair investigation), likelihood of evading or fleeing justice- to impose special conditions. Imposing such conditions, would have to be on a case to case basis, and upon exercise of discretion by the court seized of the application under Section 438. In conclusion, it is held that imposing conditions such as those stated in Section 437 (2) while granting bail, are normal; equally, the condition that in the event of the police making out a case of a likely discovery under Section 27 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... direction can be sought from the court under Section 439 (2). Thus, unless circumstances to the contrary: in the form of behaviour of the accused suggestive of his fleeing from justice, or evading the authority or jurisdiction of the court, or his intimidating witnesses, or trying to intimidate them, or violate any condition imposed while granting anticipatory bail, the law does not require the person to surrender to the court upon summons for trial being served on him. Subject to compliance with the conditions imposed, the anticipatory bail given to a person, can continue till end of the trial. - Special Leave Petition (Criminal) Nos.72817282/2017 - - - Dated:- 29-1-2020 - Arun Mishra, Indira Banerjee, Vineet Saran, M.R. Shah And S. Ravindra Bhat, JJ. JUDGMENT M.R. Shah, In the light of the conflicting views of the different Benches of varying strength, more particularly in the cases of Shri Gurbaksh Singh Sibbia and others v. State of Punjab (1980) 2 SCC 565; Siddharam Satlingappa Mhetre v. State of Maharashtra (2011) 1 SCC 694; Bhadresh Bipinbhai Sheth v. State of Gujarat (2016) 1 SCC 152 on one side and in the cases of Salauddin Abdulsamad Shaikh v. Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of disgracing them or for other purposes by getting them detained in jail for some days. It is submitted that the Law Commission further observed that 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 to be no justification to require him to first submit to custody, remain in prison for some days, and then apply for bail. 2.2. It is further submitted that power to grant anticipatory bail vests only in the High Courts or the Courts of Sessions. It is submitted that the anticipatory bail can be applied at different stages. It is submitted that even in a case where no FIR is lodged and a person is apprehending his arrest in case the FIR is lodged, in that case, he can apply for anticipatory bail and after notice to the Public Prosecutor the Court can grant anticipatory bail . It is submitted that even in a case where the FIR is lodged but the investigation has not yet begun, i.e., pre investigation stage, the anticipatory bail can b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 2.4. Shri Harin P. Raval, learned Senior Advocate appearing as Amicus Curiae has further submitted that however the core questions before this Court are, (a) what is the life or currency of an anticipatory bail once the same has been granted by the competent court?; (b) once an order granting anticipatory bail has been passed, whether the said anticipatory bail only survives till the stage of filing of charge sheet/challan/final report or whether it subsists during the entire duration of trial?. It is further submitted by Shri Raval that one another question may arise, namely, in a case where if new incriminating materials are found during the course of investigation, whether they could be relied on by the Court to cancel anticipatory bail which has already been granted? 2.5. It is submitted that, as such, the aforesaid questions are not res integra in view of the decision of the Constitution Bench of this Court in the case of Gurbaksh Singh Sibbia (supra). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or a regular bail. It is submitted that in view of the conflicting approach, the decision rendered in the case of Siddharam Satlingappa Mhetre (supra) particularly the observations made in paragraphs 95, 108, 122 123 need to be revisited. 2.7 It is further submitted by Shri Raval, learned Amicus Curiae that the discretion of the Sessions Court and the High Court is absolute, and no limitations whatsoever have been imposed by the legislature. It is submitted that the discretion therefore can be exercised to even limit the duration of the anticipatory bail, in order to ensure that the accused also cooperates with the investigation, or that relevant discoveries to secure incriminating material could be made under Section 27 of the Evidence Act, or in view of new incriminating circumstances which establish complicity of the accused. It is submitted that therefore the view taken by this Court in Siddharam Satlingappa Mhetre (supra) that the anticipatory bail to subsist for the entire duration of the trial, curtails the discretion of the Sessions Court or the High Court to limit such duration of anticipatory bail. It is submitted that such an interpretation is in absolute contra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stipulation contained in Section 167 of the Code of Criminal Procedure, 1973. Also, in case where an accused is released on anticipatory bail, the investigation authorities may not be subjected to adherence to filing of charge sheet within 90 days as there would be no consequence as the accused is already enlarged on bail. It may therefore be safer to adhere to the earlier practice evolved by judicial precedents to restrict the operation of life of the order granting anticipatory bail for 10 days of arrest, leaving it open to the accused to apply for regular bail under Section 437/439 of the Code and equally leaving it open for the Court to consider such an application without in any way being influenced by the fact of grant of anticipatory bail, as at that stage the considerations are at a very early stage where the investigation itself may be in nascent stage or the materials are yet to be gathered and the accused is yet to be interrogated; and 4) that anticipatory bail once granted can also be cancelled, either in appeal to a superior forum on challenge being made or by the same court on establishment of well accepted and legally enshrined principles relating to cancellatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, there are cases where the power of arrest is not required or allowed to be exercised. It is submitted that exercising power of arrest in such cases would be a grave violation of a person s right and liberty. It is submitted that such exercise of power would amount to misuse of Section 41. It is submitted that the check on the power of arrest and custody provided by Sections 437 or 439 is limited as the check is only post facto. It is submitted that by then the person arrested has already suffered the trauma and humiliation of arrest. 3.3 It is further submitted that to safeguard this situation, Section 438 was introduced so as to provide for judicial intervention in necessary cases. It is submitted that this judicial intervention is to ensure that the power of arrest is regulated under the scrutiny of the courts. It is submitted that to strike a further balance between the power of arrest and the rights of the accused, this power was specifically given to the Court of Session and the High Court so as to ensure that this judicial intervention is done at the supervisory level and not at the magisterial level. It is submitted that it is in this light that the two ques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... P.C., which gives power to the Court of Session or the High Court to direct the arrest of the accused at any time. It is submitted that this ensures that through judicial intervention the balance between the two competing principles can again be revisited if the need arises. It is submitted that the only difference is that the power of arrest in these cases is exercised only after judicial scrutiny. It is submitted that in any case and as observed by this Court in Gurbaksh Singh Sibbia (supra), the orders once passed under Section 438 will continue till the trial unless in exercise of judicial discretion the Sessions Court or the High Court limits the same, looking to the facts and circumstances of the case and the stages at which the power under Section 438 Cr.P.C. is exercised. It is submitted that the Code presupposes that the order passed under Sections 438 or 439 are not or cannot be temporary time bound. It is submitted that a person in whose favour an order of pre arrest bail is passed can be taken into custody thereafter only when a specific direction is passed under Section 439(2) of the Code. 3.7 Shri Vishwanathan, learned Amicus Curiae, while making the aforesaid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recorded in writing, indicating reasons to deviate from the normal rule , the anticipatory bail can be granted for a limited time period, the life of which, would extinguish accordingly. 4.1 It is further submitted by Shri Tushar Mehta, learned Solicitor General of India that so far as the second reference, namely, whether the life of an anticipatory bail should end at the time and stage when the accused is summoned by the court is concerned, it is submitted that there cannot be a straightjacket formula. It is submitted that in a case wherein the anticipatory bail is granted for a limited time period, the life would extinguish accordingly. It is submitted that in a case wherein the anticipatory bail is granted without conditions, the life may terminate upon the circumstances warranting cancellation of such bail or such interference. It is submitted that the statute does not contemplate an automatic cancellation upon filing of charge sheet and therefore the judgment of this Court in the case of HDFC Bank Limited (supra), to that extent, may not lay down the correct law. It is submitted that, at the same time, the Hon ble Courts have deprecated the practice of blanket orders o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C. should be maintained including the power of the Magistrate to send the accused to the custody. 6. Shri C.S.N. Mohan Rao, learned Advocate appearing on behalf of respondent no.2 has vehemently submitted that the Constitution Bench judgment in Gurbaksh Singh Sibbia (supra) has dealt with various aspects of anticipatory bail and preserved the discretionary power granted by the legislature on the courts while considering application for anticipatory bail. It is submitted that the Constitution Bench has refused to impose any limitation or conditions, which are not imposed by the Parliament. 6.1 It is further submitted by the learned Counsel appearing on behalf of respondent no.2 that the decision of the Constitution Bench regarding duration of anticipatory bail is not called in question by any judgment. It is submitted that there is a clear conflict regarding the duration of anticipatory bail as enunciated by the Constitution Bench and the order in Salauddin Abdulsamad Shaikh (supra), which was followed in number of subsequent judgments. It is submitted that the decision of this Court in Salauddin Abdulsamad Shaikh (supra) and subsequent judgments following Salauddin Abdulsa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Cr.P.C. vests only with the Court of Sessions or the High Court. Therefore, ultimately it is for the concerned court to consider the application for anticipatory bail and while granting the anticipatory bail it is ultimately for the concerned court to impose conditions including the limited period of anticipatory bail , depends upon the stages at which the application for anticipatory bail is moved. A person in whose favour a pre arrest bail order is made under Section 438 of the Cr.P.C. has to be arrested. However, once there is an order of pre arrest bail/anticipatory bail, as and when he is arrested he has to be released on bail. Otherwise, there is no distinction or difference between the pre arrest bail order under Section 438 and the bail order under Section 437 439 of the Cr.P.C. The only difference between the pre arrest bail order under Section 438 and the bail order under Sections 437 and 439 is the stages at which the bail order is passed. The bail order under Section 438 of the Cr.P.C. is prior to his arrest and in anticipation of his arrest and the order of bail under Sections 437 and 439 is after a person is arrested. A bare reading of Section 438 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt must be satisfied on materials before it that the allegations of mala fides are substantial and the accusation appears to be false and groundless. 7.3 After considering the scheme of anticipatory bail under Section 438, Cr.P.C. and while not agreeing with the Full Bench, this Court has observed and held as under: 12. ..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 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. 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, insofar as the right to apply for bail is concerned. It had before it two cognate provisions of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght 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, insofar as one may, and to give full play to the presumption that he is innocent. In fact, the stage at which anticipatory bail if 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 19. 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. .. 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 und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. xxx xxx xxx xxx xxx 35. 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 m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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. 41. Apart from th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as an invariable rule. The normal rule should be not to limit the operation of the order in relation to a period of time. 43. 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 FIR 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icant shall regularly remain present during the trial, and co operate the Honourable Court to complete the trial for the above offences. If breach of any of the above conditions is committed, the order of anticipatory bail would be cancelled. It would be open to the Investigating Officer to file an application for remand, and the concerned Magistrate would decide it on merits, without influenced by the grant of anticipatory bail order. However, in the case of Siddharam Satlingappa Mhetre (supra), despite the specific observations by the Constitution Bench of this Court in Gurbaksh Singh Sibbia (supra) that the normal rule should be not to limit the operation of the order in relation to a period of time, in other words in an appropriate case and looking to the facts and circumstances of the case and the stage at which the pre arrest bail application was made, the court concerned can limit the operation of the order in relation to a period of time, on absolute misreading of the judgment in the case of Gurbaksh Singh Sibbia (supra) and just contrary to the observations made in paragraphs 42 and 43, an absolute proposition of law is laid down that the life of the order und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplicant may in such case be directed to obtain an order of bail under Sections 437 or 439 of the Code within a reasonable short period after the filing of the FIR. The Constitution Bench has further observed that the same need not be followed as an invariable rule. It is further observed and held that normal rule should be not to limit the operation of the order in relation to a period of time. We are of the opinion that the conditions can be imposed by the concerned court while granting pre arrest bail order including limiting the operation of the order in relation to a period of time if the circumstances so warrant, more particularly the stage at which the anticipatory bail application is moved, namely, whether the same is at the stage before the FIR is filed or at the stage when the FIR is filed and the investigation is in progress or at the stage when the investigation is complete and the charge sheet is filed. However, as observed hereinabove, the normal rule should be not to limit the order in relation to a period of time. RAVINDRA BHAT, J. JUDGEMENT 1. I have gone through the reasoning and conclusions of Justice M.R. Shah. I am in agreement with his judgm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. J.J. Mannan 2010 (1) SCC 679; Satpal Singh v. the State of Punjab 2018 SCC Online (SC 415 and Naresh Kumar Yadav v Ravindra Kumar 2008 (1) SCC 632 held that anticipatory bail orders should invariably contain conditions, either with reference to time, or occurrence of an event, such as filing of a charge sheet, in criminal proceedings, that would define its time of operation, after which the individual concerned would have to secure regular bail, under Section 439 Cr. PC. The court also noticed, that on the other hand, the observations in Sibbia did not suggest such an inflexible approach. The second line of cases included Siddharam Satlingappa Mhetre v. State of Maharashtra Ors 2011 (1) SCC 694 and Bhadresh Bipinbhai Sheth v. State of Gujarat Anr 2016 (1) SCC 152; these held that no conditions ought to be imposed by the court, whilst granting anticipatory bail, which was to inure and protect the individual indefinitely- even when charges were framed in a given criminal case, leading to trial- till the end of the trial. 5. The court, in Sibbia, elaborately dealt with the background which led to the introduction of the provision for anticipatory bail. It took note of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stion, 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 thatperson 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 isarrested without warrant by an officer in charge of a police station on an accusation of having committed 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued 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 CrPC, 1973 which we have extracted at the outset of this judgment. 6. The context of Sibbia was the correctness of a decision of the Full Bench of the Punjab and Haryana High Court, which restrictively interpreted Section 438 and held that the power under Section 438, is extra-ordinary and must be exercised sparingly in exceptional cases only; that it does not empower the grant of anticipatory bail in a blanket manner, in respect of offences not yet committed or with regard to accusations not yet levelled; that it is not an unguided power, but subject to limitations in Section 437 which are implicit and must be read into Section 438. The Full Bench also held that the petitioner must must make out a special case for the exercise of the power to grant anticipatory bail ; and furt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 undoubted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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. 14. Generalizations on matters which rest on discretion and the attempt todiscover 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 ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de 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 FIR. 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 cooperate 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 Evidenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... akes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail. --------- ---------- --------- 22. By proposition No. 1 the High Court says that the power conferred bySection 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, becaus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ognised 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. 34. This should be the end of the matter, but it is necessary to clarify a fewpoints which have given rise to certain misgivings. 35. Section 438(1) of the Code lays down a condition which has to besatisfied 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 n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enerally 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 specif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter covered by the order. The applicant may in such cases be directed to obtain an order of bail under Section 437 or 439 of the Code within a reasonably short period after the filing of the FIR as aforesaid. But this need not be followed as an invariable rule. The normal rule should be not to limit the operation of the order in relation to a period of time. 43. During the last couple of years this Court, while dealing with appealsagainst 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 FIR in respect of matters covered by the order. These orders, on the whole, have worked s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gular bail) after expiry of a certain duration as directed by the Court or if the Charge-sheet is submitted because regular courts cannot be bypassed. It was held, in K.L. Verma that: 3....This Court further observed that anticipatory bail is granted in anticipation of arrest in non- bailable cases, but that does not mean that the regular court, which is to try the offender, is sought to be bypassed...By this, what the Court desired to convey was that an order of anticipatory bail does not enure till the end of trial but it must be of limited duration as the regular court cannot be bypassed. The limited duration must be determined having regard to the facts of the case and the need to give the accused sufficient time to move the regular court for bail and to give the regular court sufficient time to determine the bail application. In other words, till the bail application is disposed of one way or the other the court may allow the accused to remain on anticipatory bail. .. This decision was not intended to convey that as soon as the accused persons are produced before the regular court the anticipatory bail ends even if the court is yet to decide the question of bail on me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regular bail. On the strength of an order granting anticipatory bail, an accused against whom charge has been framed, cannot avoid appearing before the trial court. 11. In the light of these decisions, which narrowed the scope and jurisdiction under Section 438, the judgment in Mhetre noticed that Sibbia was by a Bench of five judges, which indicated that imposition of restrictions for granting anticipatory bail was not always necessary. The court, in Mhetre observed as follows: ... Those orders are contrary to the law laid down by the judgment of the Constitution Bench in Sibbia's case (supra). According to the report of the National Police Commission, the power of arrest is grossly abused and clearly violates the personal liberty of the people, as enshrined under Article 21 of the Constitution, then the courts need to take serious notice of it. When conviction rate is admittedly less than 10%, then the police should be slow in arresting the accused. The courts considering the bail application should try to maintain fine balance between the societal interest vis- -vis personal liberty while adhering to the fundamental principle of criminal jurisprudence that the accuse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntioned in section 437 Cr.P.C. The Court further observed that the plentitude of the section must be given its full play. The Constitution Bench has also observed that the High Court is not right in observing that the accused 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 Cr.P.C. to a dead letter. The Court observed that We do not see why the provisions of Section 438 Cr.P.C. should be suspected as containing something volatile or incendiary, which needs to be handled with the greatest care and caution imaginable. 99. As aptly observed in Sibbia's case (supra) that a wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discreti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 recognized 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. GRANT OF BAIL FOR LIMITED PERIOD IS CONTRARY TO THE LEGISLATIVE INTENTION AND LAW DECLARED BY THE CONSTITUTION BENCH: 105. The court which grants the bail has the right to cancel the bail according to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial court and again apply for regular bail. 111. The court must bear in mind that at times the applicant would approach the court for grant of anticipatory bail on mere apprehension of being arrested on accusation of having committed a non-bailable offence. In fact, the investigating or concerned agency may not otherwise arrest that applicant who has applied for anticipatory bail but just because he makes an application before the court and gets the relief from the court for a limited period and thereafter he has to surrender before the trial court and only thereafter his bail application can be considered and life of anticipatory bail comes to an end. This may lead to disastrous and unfortunate consequences. The applicant who may not have otherwise lost his liberty loses it because he chose to file application of anticipatory bail on mere apprehension of being arrested on accusation of having committed a non-bailable offence. No arrest should be made because it is lawful for the police officer to do so. The existence of power to arrest is one thing and the justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollowing factors and parameters can be taken into consideration while dealing with the anticipatory bail: i. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; ii. The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; iii. The possibility of the applicant to flee from justice; iv. The possibility of the accused's likelihood to repeat similar or the other offences. v. Where the accusations have been made only with the object of injuring orhumiliating the applicant by arresting him or her. vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people. vii. The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The provisions 13. For completeness, it is essential to set out the relevant provisions: to wit, Sections 437, 438 and 439 of the Code of Criminal Procedure, 1974 (hereafter variously Cr.PC and the Code ). They are reproduced in the footnote below. 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- (i) such person shall not be so released if there appear reasonablegrounds for believing that he has been guilty of an offence punishable with death or imprisonment for life; (ii) such person shall not be so released if such offence is a cognizableoffence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a cognizable offence punishable with imprisonment for three years or more but not less than seven years. P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dissuade him for disclosing such facts to the Court or to any police officer or tamper with the evidence, and may also impose in the interest of justice such other conditions as it considers necessary. (4) An officer or a Court releasing any person on bail under subsection (1) or sub- section (2), shall record in writing his or its reasons or special 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 accusedof 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 accusedof a non- bailable offence and before judgment is delivered, the Court is of opinion that there are reasonable gro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court (IB) The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice.] ----------------------------------------------------------------------------------------------- The unamended portion- Section 438 (2) and (3), and the newly introduced sub-section (4) read as follows: (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 forinterrogation by a police officer as and when required; (ii) a condition that the person shall not, directly or indirectly, make anyinducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (IA) The presence of the informant or any person authorised by him shall be obligatory at the time of hearing of the application for bail to the person under sub-Section (3) of the Section 376 or Section 376 AB or Section 376 DA or Section 376 DB of the Indian Penal Code (45 of 1860) (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. Contentions of parties 14. Mr. Abhay Kumar, for the petitioner, argued that it is not correct to find any limitation on the life span of an order of anticipatory bail in terms of its duration by reading the para 42 of Sibbia Case; and that the life of anticipatory bail is coterminous with the life of criminal case, whether the criminal case gets over either at the stage of trial or before it, in a given case. He further urged that personal liberty is a cherished freedom, even more important than the other freedoms guaranteed under the Constitution. The Constitution framers therefore enacted safeguards in Article 22 in the Constitution to limit the power of the State to detain a person without trial, which may otherwise pass the test of Ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the appeal and release of appellant on bail - postconviction and during pendency of Appeal). Section 438 manifests the principle of liberty. 17. Counsel highlighted that anticipatory bail is panacea for apprehension of arrest in false case. Anticipatory bail protects from trauma and stigma of arrest of an innocent (in most of the cases, full of various responsibilities and even being sole bread earner of her/his family members), consequently prohibiting in creating reverse victims by way of dependent upon the said accused. An elementary postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus is placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception. Counsel relied on Dataram Sin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a suitable case, upon showing proper and inspiring subsequent chance in circumstances in favour of accused, is sufficient indicative factor of the proposition that a rejection of anticipatory will generate no automatic warrant for an accused to surrender and seek regular bail. If subsequent and material change or circumstance can be a plausible reason for cancellation of bail, is should definitely, considering the valuable right of an accused, equally there can be a reason for applying fresh application for anticipatory bail in a suitable case. Having regard to all these factors, counsel urged this court to endorse the reasoning in Mhetre which according to him is conformity with the larger bench ruling in Sibbia, and accommodates the flexibilities in the Code. 20. Mr. Rao relied on the observations in Gurcharan Singh v State (Delhi Admn) 1978 (1) SCC 118. The observations are as follows: under Section 439 (2) of the new Code a High Court may commit a person released on bail under Chapter XXXIII by any Court including the Court of Session to custody, if it thinks appropriate to do so. It must, however, be made clear that a Court of Session cannot cancel a bail which has alr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years; (ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub- section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;.. amounts to deemed bail under Chapter XXXIII of the Code: Under the first proviso to S.167 (2) no Magistrate shall authorise the detention of an accused in custody under that section for a total period exceeding 60 days on the expiry of which the accused shall be released on bail if he is prepared to furnish the same- This type of release under the proviso shall be deemed to be a release under the provisions of Chapter XXXIII relating to bail. 21. It was submitted that the decisions in Aslam Babalal Desai v State of Maharastra (1992 (4) SCC 272) is an authority for the proposition that there can be no cancellation of the bail granted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustice System by Dr. Justice V.S. Malimath. Reliance on para 7.26.3. The Report remarked after considering 3rd Report of the National Police Commission that the power of arrest was one of the chief sources of corruption in the police. The report suggested that by and large nearly 60% of the arrests were either unnecessary or unjustified and that such unjustified police action accounted for 43.2% of the expenditure of the prison department . 24. It was urged that the power of arrest with the police is under Section 41 of the CrPC. That provision is in two parts. One, relating to offences in which the maximum punishment can extend to imprisonment for seven year. Second, relating to offences in which the maximum punishment can extend to imprisonment to above seven years or death penalty. Though they have different conditions and thresholds, in both cases it is clear from a bare reading of the section that the power of arrest cannot be exercised in ever FIR that is registered u/s 154 Cr.PC. This power is circumscribed by the conditions laid down in this section. Moreover, this principle that the power of arrest is not required to be exercised in every case was recognized in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relief under Section 438 ought not to be arrested at the stage of cognizance because of the said pre-arrest bail order. Considering this express provision, no other interpretation can be given to the said section. The second question referred here squarely covered by this sub-section. This order passed under Section 438, is a pre-arrest direction (to release on bail, in the event of arrest), is subject to the power granted to the Court of Session and the High Court under Section 439(2) Cr. P.C. It is clear from the provision that a bail granted under Section 438 is further governed by Section 439(2) which gives the power to the Court of Session or the High Court to direct the arrest of the accused at any time. This ensures that through judicial intervention the balance between the two competing principles can again be revisited if the need arises. In other words, considering any relevant change in circumstances the prosecution can seek the arrest of the accused. The only difference is that the power of arrest in these cases is exercised only after judicial scrutiny. This provision envisions that the Code presupposes that orders once passed under Sections 438 and 439 will cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the application. He however submitted that this discretion should be exercised with caution and circumspection. Counsel submitted that there could be three situations when anticipatory bail applications are to be considered: one, when the application is filed in anticipation of arrest, before filing FIR; two, after filing FIR, but before the filing of the charge sheet; and three, after filing charge sheet. It was submitted that as a matter of prudence and for good reasons, articulated in Salauddin, K.L. Verma, Adri Dharan Das and decisions adopting their reasoning, it would be salutary and in public interest for courts to impose time limits for the life of orders of anticipatory bail. Counsel submitted that if anticipatory bail is sought before filing of an FIR the courts should grant relief, limited till the point in time, when the FIR is filed. In the second situation, i.e. after the FIR is filed, the court may limit the grant of anticipatory bail till the point of time when a charge sheet is filed; in the third situation, if the application is made after filing the charge sheet, it is up to the court, to grant or refuse it altogether, looking at the nature of the charge. Likew ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 437(3) to say that the conditions spelt out in that provision are to be considered, while granting anticipatory bail, by virtue of Section 438(2). 32. Mr. Tushar Mehta, learned Solicitor General and Mr. Vikramjit Banerjee, learned Additional Solicitor General, submitted that the decision in Mhetre (supra) is erroneous and should be overruled. It was submitted that though Section 438 does not per se pre-suppose imposition of conditions for grant of anticipatory bail, nevertheless, given Section 438(2) and Section 437(3), various factors must be taken into account. Whilst exercising power to grant (or refuse) a direction in the nature of anticipatory bail, the court is bound to strike a balance between the individual's right to personal freedom and the right of investigation of the police. For this purpose, in granting relief under Section 438(1), appropriate conditions can be imposed under Section 438(2) to ensure an unimpeded investigation. The object of imposing conditions is to avoid the possibility of the person or accused hampering investigation. Thus, any condition, which has no reference to the fairness or propriety of the investigation or trial, cannot be cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wal v. State of Maharashtra Anr 2009 (8) SCC 325, and Sibbia were referred to, to argue that before granting an order of anticipatory bail, the court should be satisfied that the applicant seeking it has reason to believe that he is likely to be arrested for a non-bailable offence and that belief must be founded on reasonable grounds. Mere fear is not belief; it is insufficient for an applicant to show that he has some sort of vague apprehension that someone is going to accuse him, for committing an offence pursuant to which he may be arrested. An applicant s grounds on which he believes he may be arrested for a non-bailable offence, must be capable of examination by the Court objectively. Specific events and facts should be disclosed to enable the Court to judge of the reasonableness of his belief, the existence of which is the sine qua non of the exercise of power conferred by the Section. It was pointed out that the provisions of Section 438 cannot be invoked after the arrest of the accused. After arrest, the accused must seek his remedy under Section 437 or Section 439 of the Code, if he wants to be released on bail in respect of the offence or offences for which he is arre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thing all the ramifications involved in a conspiracy. Public interest also would suffer as consequence. Reference was invited to State of A.P. v. Bimal Krishna Kundu 1997 (8) SCC 104 in this context. Likewise, attention of the court was invited to Muraleedharan v. State of Kerala 2001 (4) SCC 638 which held that Custodial interrogation of such an accused is indispensably necessary for the investigating agency to unearth all the links involved in the criminal conspiracies committed by the person which ultimately led to the capital tragedy. It was highlighted that statements made during custodial interrogation are qualitatively more relevant to those made otherwise. Granting an unconditional order of anticipatory bail would therefore thwart a complete and objective investigation. 37. Mr. Aman Lekhi, learned Additional Solicitor General, urged that the general drift of reasoning in Sibbia was not in favour of a generalized imposition of conditions- either as to the period (in terms of time, or in terms of a specific event, such as filing of charge sheet) limiting the grant of anticipatory bail. It was submitted that the text of Section 439(2) applied per se to all forms of orders ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not provide for any corresponding provision to Section 438 of the code of 1973. Under the old code, there was a sharp difference of opinion amongst the various High Courts on the question as to whether courts had the inherent power to pass an order of bail in anticipation of arrest. The predominant position was that courts did not have such a power. Subsequently, the need for various amendments to make the code more comprehensive resulted in the enactment of the Code of Criminal Procedure in 1973. Interestingly, Section 438 does not expressly use the term anticipatory bail ; its language instead empowers the concerned to court to issue directions for grant of bail. 41. The Law Commission of India, in its 41st Report of 1969, noted that the necessity for granting anticipatory bail arises mainly due to influential persons attempting to implicate their rivals in false cases, or disgracing them by getting them detained in jail. The report further noted that apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail, there seems to be no justification to require h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch as the possibility that the police may use their investigative powers to humiliate the person sought to be arrested, or pervert the course of justice and abuse their powers of investigation. One of the arguments raised in Sibbia, as also in the present case, was that the power to grant anticipatory bail ought to be left to the discretion of the court concerned, depending on the facts and circumstances of each case. The State, on the other hand, argued that the grant of anticipatory bail should at least be conditional upon the bail applicant showing that he is likely to be arrested for an ulterior motive that the proposed charges are baseless or motivated by malafides. The State also argued that anticipatory bail is an extraordinary remedy and therefore, whenever it appears that the proposed accusations are prima facie plausible, the applicant should be left to the ordinary remedy of applying for bail under Section 437 or Section 439 of the Cr.PC, after being arrested. 44. Counsel for the appellants in Sibbia, on the other hand, argued that since the denial of bail amounts to deprivation of personal liberty, courts should lean against the imposition of unnecessary restriction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lief under Section 438) is moved, discretion has to be always exercised judiciously, and with caution, having regard to the facts of every case. (Para 21, Sibbia). (iv) While the power of granting anticipatory bail is not ordinary, at the same time, its use is not confined to exceptional cases (Para 22, Sibbia). (v) It is not justified to require courts to only grant anticipatory bail in special casesmade out by accused, since the power is extraordinary, or that several considerations spelt out in Section 437- or other considerations, are to be kept in mind. (Para 24-25, Sibbia). (vi) Overgenerous introduction (or reading into) of constraints on the power to grantanticipatory bail would render it Constitutionally vulnerable. Since fair procedure is part of Article 21, the court should not throw the provision (i.e. Section 438) open to challenge by reading words in it which are not to be found therein. (Para 26). (vii) There is no inexorable rule that anticipatory bail cannot be granted unless theapplicant is the target of mala fides. There are several relevant considerations to be factored in, by the court, while considering whether to grant or refuse anticipatory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 438; an ad interim order can be made. The application should be reexamined in the light of the respective contentions of the parties. The ad interim order too must conform to the requirements of the section and suitable conditions should be imposed on the applicant even at that stage. Should the operation of an order passed under Section 438(1) be limited in point of time? Not necessarily. The court may, if there are reasons for doing so, limit the operation of the order to a short period until after the filing of an FIR in respect of the matter covered by the order. The applicant may in such cases be directed to obtain an order of bail under Section 437 or 439 of the Code within a reasonably short period after the filing of the FIR as aforesaid. But this need not be followed as an invariable rule. The normal rule should be not to limit the operation of the order in relation to a period of time. (Para 42, Sibbia). 46. It is quite evident, therefore, that the pre-dominant thinking of the larger, Constitution Bench, in Sibbia (supra), was that given the premium and the value that the Constitution and Article 21 placed on liberty- and given that a tendency was noticed, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onvict is fundamental, suffering lawful eclipse only in terms of procedure established by law . 49. The reason for enactment of Section 438 in the Code was Parliamentary acceptance of the crucial underpinning of personal liberty in a free and democratic country. Parliament wished to foster respect for personal liberty and accord primacy to a fundamental tenet of criminal jurisprudence, that everyone is presumed to be innocent till he or she is found guilty. Life and liberty are the cherished attributes of every individual. The urge for freedom is natural to each human being. Section 438 is a procedural provision concerned with the personal liberty of each individual, who is entitled to the benefit of the presumption of innocence. As denial of bail amounts to deprivation of personal liberty, the court should lean against the imposition of unnecessary restrictions on the scope of Section 438, especially when not imposed by the legislature. In Sibbia, it was observed that: Anticipatory bail is a device to secure the individual's liberty; it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations, likely or unlikely. 50. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the accusation; (ii) the antecedents of the applicant including the fact as to whether he haspreviously undergone imprisonment on conviction by a Court in respect of any cognizable offence; (iii) the possibility of the applicant to flee from justice; and (iv) where the accusation has been made with the objection of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail: Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub-section or has rejected the application for grant of anticipatory bail, it shall be open to an officer-in-charge of a police station to arrest, without warrant the applicant, if there are reasonable grounds for such arrest. (1-A) Where the Court grants an interim order under sub-s. (1), it shall forthwithcause a notice being not less than seven days notice, together with a copy of such order to be served on the Public Prosecutor and the Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olonial despite six decades of independence, that the power of arrest is is largely considered as a tool of harassment, oppression and surely not considered a friend of public. The need for caution in exercising the drastic power of arrest has been emphasized time and again by Courts but has not yielded desired result. Power to arrest greatly contributes to its arrogance so also the failure of the Magistratcy to check it. Not only this, the power of arrest is one of the lucrative sources of police corruption. The attitude to arrest first and then proceed with the rest is despicable. It has become a hand tool to the police officers who lack sensitivity or act with oblique motive. The latest report of the Law Commission 268th Report, 2017 notes that 67 per cent of the prison population is awaiting trial in India . Therefore, the need for a provision to ensure anticipatory bail, is as crucial, as it was at the time of its introduction, and at the time Sibbia (supra) was decided. 53. Various reasons- given in judgments, rendered after Sibbia (supra), starting with Salauddin (supra), have highlighted that anticipatory bail orders have to be constrained by conditions, nota ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he investigating agency in interrogating the accused and in collecting the useful information and also the materials which might have been concealed. Success in such interrogation would elude if the accused knows that he is protected by the order of the court. Grant of anticipatory bail, particularly in economic offences would definitely hamper the effective investigation. Having regard to the materials said to have been collected by the respondent Enforcement Directorate and considering the stage of the investigation, we are of the view that it is not a fit case to grant anticipatory bail. The court cited other previous decisions, i.e. State v. Anil Sharma (1997) 7 SCC 187; Sudhir v. State of Maharashtra 2016 (1) SCC 146; and Directorate of Enforcement v. Hassan Ali Khan (2011) 12 SCC 684. 54. A fuller consideration of the various decisions cited earlier, especially those which emphasized the need to limit the life of an order of anticipatory bail, are premised on the understanding that the grant of an unconditional order of bail would thwart investigation. In the first place, this premise is unfounded, given that Sibbia (supra) stated (in para 13, SCC reports) that such an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case may be the Court of Session has not passed any interim order under this sub-section or has rejected the application for grant of anticipatory bail it shall be open to an officer in charge of police station to arrest without warrant the applicant on the basis of the accusation apprehended in such application (IA) Where the Courts grants an interim order under sub-section (1), it shall forthwith cause a notice being not less than seven days notice, together with the copy of such order to be served on the Public Prosecutor and the Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court (IB) The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice.] The 203rd Report of the Law Commission, which reviewed the entire law on the subject and noticed later decisions, such as Salauddin, Adari Narain Das, etc, recommended no change in la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the accused s non-cooperation in the course of investigation, (such as, for example, difficulty in securing his person, evasion by him, reluctance to answer questions during the investigation or providing statements for purposes of recovery of articles in terms of Section 27 of the Evidence Act); involvement in very serious or grave offences such as murder, kidnapping, causing death under unusual circumstances and offences which undermine the economy; disclosure of information that the offence involves large scale fraud and several individuals or victims, and, the filing of charge-sheet. Each of or all of them put together, in the opinion of the court, neither hold insurmountable problem, nor are unforeseen situations or not anticipated in Sibbia (supra). 59. The controlling expressions under Section 438(2) spell out three distinct conditions, which the court granting anticipatory bail can include as directions. These are- that the applicant makes himself available for interrogation by police officer, as and when required; that such applicant should not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and in a judicious manner. 61. The imposition of conditions under Section 438(2) with reference to Section 437(3), in the opinion of this court, is enough safeguard for the authorities including the police and other investigating agencies, who have to investigate into crimes and the possible complicity of the applicants who seek such relief. Taking each concern, i.e. the addition of more serious offences; presence of a large number of individuals or complainants; possibility of non-cooperation - non-cooperation in the investigation or the requirement of the accused s statement to aid the recovery of articles and incriminating articles in the course of statements made during investigations it is noticeable, significantly, that each of these is contemplated as a condition and is invariably included in every order granting anticipatory bail. In the event of violation or alleged violation of these, the concerned authority is not remediless; recourse can be had to Section 438(2) read with Section 437(3). Any violation of these terms would attract a direction to arrest him. This power or direction to arrest is found in Section 437(5). However, that provision has no textual applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ace. 63. Likewise, in Directorate of Enforcement v Deepak Mahajan 1994 (3) SCC 440 this court referred to Maxwell on Interpretation of Statutes, Tenth Edn., to the effect that if the ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words 64. This court, long back, in State of Haryana Ors. v. Sampuran Singh Ors 1975 (2) SCC 810. observed that by no stretch of imagination a Judge is entitled to add something more than what is there in the statute by way of a supposed intention of the legislature. The cardinal principle of construction of statute is that the true or legal meaning of an enactment is derived by considering the meaning of the words used in the enactment in the light of any discernible purpose or object which comprehends the mischief and its remedy to which the enactment is directed. It is sufficient, therefore to notice that when Section 438 in the form that exists today, (which is not substantially different from the text of what ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of articles that incriminate the accused (and therefore can be used under Section 27, Evidence Act), this court perceives such views to be vague and based apparently pre-conceived notions. If there is non-cooperation by an accused in the course of investigation, the remedy of seeking assistance of the court exists. Moreover, on this aspect too, Sibbia had envisioned the situation; the court had cited State of U.P. v Deoman Upadhyaya 1961 (1) SCR 14, where this court had observed as follows: When a person not in custody approaches a police officer investigating an offence and offers to give information leading to the discovery of a fact, having a bearing on the charge which may be made against him he may appropriately be deemed to have surrendered himself to the police. Section 46 of the Code of Criminal Procedure does not contemplate any formality before a person can be said to be taken in custody : submission to the custody by word or action by a person in sufficient. A person directly giving to a police officer by word of mouth information which may be used as evidence against him, may be deemed to have submitted himself to the custody of the police officer within the mea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that there appear to be reasonable grounds for believing that the applicant has been guilty of an offence punishable with death or imprisonment for life. In cases falling under Section 438 that stage is still to arrive and, in the generality of cases thereunder, it would be premature and indeed difficult to predicate that there are or are not reasonable grounds for so believing. The foundation of the belief spoken of in Section 437 (1), by reason of which the court cannot release the applicant on bail is, normally, the credibility of the allegations contained in the First Information Report. 68. For the above reasons, the answer to the first question in the reference made to this bench is that there is no offence, per se, which stands excluded from the purview of Section 438, - except the offences mentioned in Section 438 (4). In other words, anticipatory bail can be granted, having regard to all the circumstances, in respect of all offences. At the same time, if there are indications in any special law or statute, which exclude relief under Section 438 (1) they would have to be duly considered. Also, whether anticipatory offences should be granted, in the given facts and circu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ikelihood of evading or fleeing justice- to impose special conditions. Imposing such conditions, would have to be on a case to case basis, and upon exercise of discretion by the court seized of the application under Section 438. In conclusion, it is held that imposing conditions such as those stated in Section 437 (2) while granting bail, are normal; equally, the condition that in the event of the police making out a case of a likely discovery under Section 27 of the Evidence Act, person released on bail shall be liable to be taken in police custody for facilitating the discovery. Other conditions, which are restrictive, are not mandatory; nor is there any invariable rule that they should necessarily be imposed or that the anticipatory bail order would be for a time duration, or be valid till the filing of the FIR, or the recording of any statement under Section 161, Cr. PC, etc. Other conditions may be imposed, if the facts of the case so warrant. Re Question No. 2: Whether the life of an anticipatory bail should end at the time and stage when the accused is summoned by the court. 70. The question here is whether there is anything in the law which per se requires that upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 438(2) or the violation of any other condition imposed in the given facts of a case, recourse can always be had under Section 439(2). 71. Section 438 (3) states that when a person is granted anticipatory bail, is later arrested without warrant by an officer in charge of a police station on such accusation , and is willing to give bail, he shall be released on bail; and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person he shall issue a bailable warrant in conformity with the direction of the Court under sub-section (1) . The order granting anticipatory bail, is also- as noticed earlier, and in several previous decisions, a direction under this Section 438 that in the event of such arrest the applicant be released on bail. Therefore, when an accused in fact is granted bail, and the conditions outlined in Section 438 (2) are included as part of the direction to release him in the event of arrest, all the necessary conditions which he is obliged to follow exist. Section 438 (3) outlines the steps to be taken, in the event of arrest of one who has been granted relief under Section 438 (1). In the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his earlier bail. A discretion has been given to the Court to pass such orders to direct for such person be arrested and commit him to the custody which direction may be with an order for cancellation of earlier bail or permission to arrest such accused due to addition of graver and non- cognizable offences. Two Judge Bench judgment in Mithabhai Pashabhai Patel (supra) uses the word ordinarily in paragraph 18 of the judgment which cannot be read as that mandatorily bail earlier granted to the accused has to be cancelled before Investigating Officer to arrest him due to addition of graver and non-cognizable offences. ********* ******** ******** 27. Relying on the above said order, learned counsel for the appellantsubmits that respondent State ought to get first the order dated 10.03.2016 granting bail to appellant cancelled before seeking custody of the appellant. It may be true that by mere addition of an offence in a criminal case, in which accused is bailed out, investigating authorities itself may not proceed to arrest the accused and need to obtain an order from the Court, which has released the accused on the bail. It is also open for the accused, who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rant of bail to an accused, further cognizable and non-bailable offences are added:- (i) The accused can surrender and apply for bail for newly addedcognizable and non-bailable offences. In event of refusal of bail, the accused can certainly be arrested. (ii) The investigating agency can seek order from the court under Sections 437 (5) or 439 (2) for arrest of the accused and his custody. (iii) The Court, in exercise of power under Sections 437 (5) or 439 (2) of Cr.PC., can direct for taking into custody the accused who has already been granted bail after cancellation of his bail. The Court in exercise of power under Sections 437 (5) as well as 439 (2) can direct the person who has already been granted bail to be arrested and commit him to custody on addition of graver and non-cognizable offences which may not be necessary always with order of cancelling of earlier bail. (iv) In a case where an accused has already been granted bail, theinvestigating authority on addition of an offence or offences may not proceed to arrest the accused, but for arresting the accused on such addition of offence or offences it need to obtain an order to arrest the accused from the Court whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the High Court was withdrawn, after which a second anticipatory bail was granted. The High Court cancelled the grant of relief. This court affirmed the High Court s view. In that judgment, Bipin Bhadresh Sheth was noticed, while considering the scope of the power under Section 439 (2). In another decision, Arvind Tiwary v. State of Bihar 2018 (8) SCC 475 the issue was whether the anticipatory bail, granted subject to certain conditions, earlier, which had been considered by this court, could be cancelled. The conditions included, inter alia, that sums were to be secured by bank guarantee. The aggrieved corporation directed that the defalcated sum specified in respect of every accused should be secured through such guarantee. Upon failure to comply with that demand, an order of cancellation was sought. This court held that cancellation could not be resorted to on the assumption that the applicants were guilty. Similarly, in Mahant Chand Yogi v. State of Haryana 2003 (1) SCC 236, Padmakar Tukaam Bhavnagare v. State of Maharastra 2012 (13) SCC 720, X v. State of Telangana (2018) 16 SCC 511, and several other judgments the same views were expressed. 76. Therefore, unless c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... extent and reasonableness of the threat or apprehension, its gravity or seriousness and the appropriateness of any condition that may have to be imposed. It is not a necessary condition that an application should be moved only after an FIR is filed; it can be moved earlier, so long as the facts are clear and there is reasonable basis for apprehending arrest. (b) The court, before which an application under Section 438, is filed, depending on the seriousness of the threat (of arrest) as a measure of caution, may issue notice to the public prosecutor and obtain facts, even while granting limited interim anticipatory bail. (c)Section 438 Cr. PC does not compel or oblige courts to impose conditions limiting relief in terms of time, or upon filing of FIR, or recording of statement of any witness, by the police, during investigation or inquiry, etc. While weighing and considering an application (for grant of anticipatory bail) the court has to consider the nature of the offence, the role of the person, the likelihood of his influencing the course of investigation, or tampering with evidence (including intimidating witnesses), likelihood of fleeing justice (such as leaving the coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pra) had observed that if and when the occasion arises, it may be possible for the prosecution to claim the benefit of Section 27 of the Evidence Act in regard to a discovery of facts made in pursuance of information supplied by a person released on bail by invoking the principle stated by this Court in State of U.P. v Deoman Upadhyaya. (h) It is open to the police or the investigating agency to move the court concerned, which granted anticipatory bail, in the first instance, for a direction under Section 439 (2) to arrest the accused, in the event of violation of any term, such as absconding, non-cooperating during investigation, evasion, intimidation or inducement to witnesses with a view to influence outcome of the investigation or trial, etc. The court in this context is the court which grants anticipatory bail, in the first instance, according to prevailing authorities. (i)The correctness of an order granting bail, can be considered by the appellate or superior court at the behest of the state or investigating agency, and set aside on the ground that the court granting it did not consider material facts or crucial circumstances. (See Prakash Kadam Etc. Etc vs Ramp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hrink to a very narrow and unrecognizably tiny portion, thus frustrating the objective behind the provision, which has stood the test of time, these 46 years. 81. The reference is hereby answered in the above terms. JUDGMENT S. RAVINDRA BHAT We have seen the drafts of Justice M.R. Shah and Justice S. Ravindra Bhat and are in agreement with them. Since there is no difference of opinion between the two, we are in agreement with the reasoning of Justice M.R. Shah and Justice S. Ravindra Bhat that the conclusions in Shri Gurbaksh Singh Sibbia and others v. State of Punjab 1980 (2) SCC 565 needs reiteration and further that the restrictive manner in which Section 438 of the Cr.PC has been interpreted in Salauddin Abdulsamad Shaikh v. State of Maharashtra 1996 (1) SCC 667 is incorrect. Therefore, we agree that Salauddin (supra) and other cases which have followed it needs to be overruled. Similarly, the wide interpretation in Siddharam Satlingappa Mhetre v. State of Maharashtra Ors. 2011 (1) SCC 694, i.e. that no conditions can be imposed while granting an order of anticipatory bail, is incorrect. Mhetre (supra) to that extent and other judgments which have followe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only after an FIR is filed; it can be moved earlier, so long as the facts are clear and there is reasonable basis for apprehending arrest. (2) It may be advisable for the court, which is approached with an application under Section 438, depending on the seriousness of the threat (of arrest) to issue notice to the public prosecutor and obtain facts, even while granting limited interim anticipatory bail. (3) Nothing in Section 438 Cr. PC, compels or obliges courts to impose conditions limiting relief in terms of time, or upon filing of FIR, or recording of statement of any witness, by the police, during investigation or inquiry, etc. While considering an application (for grant of anticipatory bail) the court has to consider the nature of the offence, the role of the person, the likelihood of his influencing the course of investigation, or tampering with evidence (including intimidating witnesses), likelihood of fleeing justice (such as leaving the country), etc. The courts would be justified and ought to impose conditions spelt out in Section 437 (3), Cr. PC [by virtue of Section 438 (2)]. The need to impose other restrictive conditions, would have to be judged on a case b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n pursuance of information supplied by a person released on bail by invoking the principle stated by this Court in State of U.P. v Deoman Upadhyaya. (9)It is open to the police or the investigating agency to move the court concerned, which grants anticipatory bail, for a direction under Section 439 (2) to arrest the accused, in the event of violation of any term, such as absconding, noncooperating during investigation, evasion, intimidation or inducement to witnesses with a view to influence outcome of the investigation or trial, etc. (10) The court referred to in para (9) above is the court which grants anticipatory bail, in the first instance, according to prevailing authorities. (11) The correctness of an order granting bail, can be considered by the appellate or superior court at the behest of the state or investigating agency, and set aside on the ground that the court granting it did not consider material facts or crucial circumstances. (See Prakash Kadam Etc. Etc vs Ramprasad Vishwanath Gupta Anr (2011) 6 SCC 189; Jai Prakash Singh (supra) State through C.B.I. vs. Amarmani Tripathi (2005) 8 SCC 21). This does not amount to cancellation in terms of Section 43 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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