9911796707
TMI Blog2020 (1) TMI 1193X X X X Extracts X X X X X X X X Extracts X X X X ..... for consideration by a larger Bench: "(1) Whether the protection granted to a person under Section 438 Cr.P.C. should be limited to a fixed period so as to enable the person to surrender before the Trial Court and seek regular bail. (2) Whether the life of an anticipatory bail should end at the time and stage when the accused is summoned by the court." 2. Shri Harin P. Raval, learned Senior Advocate appearing as Amicus Curiae relying upon the decision of this Court in the case of Balchand Jain v. State of M.P. (1976) 4 SCC 572 has submitted that though the expression "anticipatory bail" has not been defined in the Code, as observed by this Court in the aforesaid decision, "anticipatory bail" means "bail in anticipation of arrest". It is submitted that in the aforesaid decision, this Court has further observed that the expression "anticipatory bail" is a misnomer inasmuch as it is not as if bail is presently granted by the Court in anticipation of arrest. It is submitted that when a competent court grants "anticipatory bail", it makes an order that in the event of arrest, a person shall be released on bail. It is submitted that there is no question of release on bai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the bail is granted in anticipation of the arrest, there is no reason to limit the same till the summon is issued by the Court and/or there is no reason to limit the period of bail in anticipation granted. 2.3. Shri Harin P. Raval, learned Senior Advocate appearing as Amicus Curiae has further submitted that in the case of Gurbaksh Singh Sibbia (supra), a Constitution Bench of this Court has observed and held that the facility which Section 438, Cr. P.C. affords is generally referred to as "anticipatory bail", an expression which was used by the Law Commission in its 41st Report. Neither the section nor its marginal note so describes it but, the expression "anticipatory bail" is a convenient mode of conveying that it is possible to apply for bail in anticipation of arrest. It is submitted that any order of bail can, of course, be effective only from the date of arrest because to grant bail as stated in Wharton's Law Lexicon, is to "set at liberty a person arrested or imprisoned, on security being taken for his appearance". It is submitted that thus, bail is basically release from restraint, more particularly, release from the custody of the police. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which can vary from a few weeks to even such duration until charge sheet has been filed and which may also extend to the entire duration of the trial. It is submitted that it is further observed that the sole consideration must be with a view to balance the two competing interests, viz., protecting the liberty of the accused and the sovereign power of the police to conduct a fair investigation. Shri Raval, learned Amicus Curiae has heavily relied upon the observations made by the Constitution Bench of this Court in paragraphs 42 & 43 of Gurbaksh Singh Sibbia (supra). 2.6. It is further submitted by Shri Raval that in the subsequent decision of this Court in the case of Siddharam Satlingappa Mhetre (supra), this Court has taken the view that the order of anticipatory bail once granted ordinarily subsists during the entire duration of the trial. It is submitted that it is further observed that by that the power of the Sessions Court or that of the High Court to revisit its order granting anticipatory bail is curtailed, in case circumstances exist or new exigencies arise which merit interference. Heavy reliance is placed upon observations made by this Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... val, learned Amicus Curiae has concluded as under: 1) that the power vested by the Parliament on superior criminal courts in the order of hierarchy, such as Sessions Court and High Court, is a power entailing conferment of absolute discretion in deciding whether an application for anticipatory bail may be allowed or rejected, and also inheres in this discretion, the additional power to limit the duration of anticipatory bail to any point in time, or to any stage as the Courts may deem fit in the facts and circumstances of the case, and in view of all the attending circumstances; 2) that the order granting anticipatory bail will not interdict the power of the investigating agency to continue investigation of the case or would prevent the investigating agency to ask for and be granted, respectively, Police Custody of the accused for the purposes of the investigation and where the investigating officer feels that the custody of the accused is necessary. Further since police custody can be granted only in the first 14 days of the arrest, the decision to restrict the duration of the bail would balance the twin competing interest, viz., the individual liberty and the sovereign ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f power under Sections 437 and 439 of the Cr.P.C. It is submitted therefore, the prearrest bail granted in anticipation of arrest under Section 438 ought to operate like any other order granting bail till an order of conviction or till an affirmative direction is passed under Section 439(2) of the Cr.P.C. It is submitted that therefore the law laid down by this Court in the cases of Gurbaksh Singh Sibbia (supra) and Siddharam Satlingappa Mhetre (supra) lay down the correct law. It is submitted that the exceptions carved out in Gurbaksh Singh Sibbia (supra) particularly in paras 19, 42 and 43 are well within the scheme of the Code. 3.1 It is further submitted by Shri Vishwanathan, learned Amicus Curiae that the power of arrest of the police is under Section 41 of the Cr.P.C. It is submitted that this Section has two essential parts. One, relating to offences in which the maximum punishment can extend to imprisonment for seven years. Second, relating to offences in which the maximum punishment can extent to imprisonment above seven years or death penalty. It is submitted that though they have different conditions and thresholds, in both cases ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Law Commission and the observations made in the Report of the Committee on Reforms of the Criminal Justice system, headed by Dr. Justice V.S. Malimath, it is submitted by Shri Vishwanathan that Section 438 is a check on the power of arrest of the police. It is submitted that as stated in the above Law Commission Report, it is a check not only against false cases, but also in cases where the need to arrest does not arise. 3.5 It is further submitted that even otherwise a bare reading of the Section shows that there is nothing in the language of the Section which goes to show that the prearrest bail granted under Section 438 has to be timebound. It is submitted that the position is the same as in Sections 437 and 439. It is submitted that at this stage Section 438(3) is relevant to be taken into consideration. It is submitted that there are two very important aspects in Section 438(3) Cr.P.C. which are relevant to be considered to understand the scheme of the Code, viz., (a) a person in whose favour a prearrest bail order has been made under Section 438 has first to be arrested. Such a person is then released on bail on the basis of the prearrest b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id decisions of this Court, has concluded that the prearrest bail granted under Section 438 of the Code is exactly like the orders of bail passed under Sections 437 and 439 of the Code; the Code does not contemplate any power in the hands of the Courts to pass timebound orders under Section 438 for good reason; on the other hand, the investigating agency can approach the Court under Section 439(2) and in the event of the police making out a case, the Court has all the powers to direct the accused to be taken into custody. 4. Shri Tushar Mehta, learned Solicitor General of India has heavily relied upon paras 42 and 43 of Gurbaksh Singh Sibbia (supra) and has submitted that as observed and held by the Constitution Bench of this Court that the Court can in a given case and for justifiable reasons limit the period of anticipatory bail. It is submitted that this Court in the case of Siddharam Satlingappa Mhetre (supra) has misread the judgment in Gurbaksh Singh Sibbia (supra) to a limited extent. It is submitted that to the extent Siddharam Satlingappa Mhetre (supra) states that "in view of the clear declaration of the law by the Constitution Bench, the life of the ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs of bail/anticipatory bail. It is submitted that there are eventualities arising in every case may be different and therefore are required to be dealt with accordingly, in the facts and circumstances of each case. It is submitted that even while granting the anticipatory bail, the right of the investigating agency to seek custodial interrogation cannot be hampered mechanically. 5. Relying upon the decisions of this Court in the cases of HDFC Bank Ltd. (supra) and Satpal Singh (supra), it is submitted by Shri Vikramjit Banerjee, learned Additional Solicitor General of India that as held by this Court in the aforesaid decisions, the purpose of Section 438 is providing protection only during the process of investigation and the accused should seek regular bail upon submission of the charge sheet against him from the court where entire material is placed. It is submitted that in any case grant of the prearrest bail under Section 438 Cr.P.C. shall not affect the right of the investigating agency to seek custodial interrogation and in conducting further investigation. 5.1 It is further submitted by Shri Banerjee, learned ASG that as held by this Court in the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsequent judgments following Salauddin Abdulsamad Shaikh (supra) are all per incuriam. 6.2 It is further submitted by the learned Counsel appearing on behalf of respondent no.2 that as a normal rule, it is not required to limit the duration of anticipatory bail. It is submitted that however, court while granting anticipatory bail may, keeping in view the peculiar facts and circumstances of the case, limit the duration of anticipatory bail. It is submitted that the life of anticipatory bail would not end on filing of charge sheet. 6.3 It is further submitted by the learned counsel appearing on behalf of respondent no.2 that both the questions of law framed for consideration by the larger Bench does not arise for consideration. It is submitted that considering the elaborate reasons given by the Constitution Bench in not putting any fetters or limitations on the discretionary power of a court to grant anticipatory bail and as there is no ambiguity in the judgment of the Constitution Bench, this Court may reiterate the judgment of the Constitution Bench in Gurbaksh Singh Sibbia (supra). 7. We have heard the learned counsel for the respective parties at length ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is arrest and the order of bail under Sections 437 and 439 is after a person is arrested. A bare reading of Section 438 of the Cr.P.C. shows that there is nothing in the language of the Section which goes to show that the prearrest bail granted under Section 438 has to be time bound. The position is the same as in Section 437 and Section 439 of the Cr.P.C. 7.2 While considering the issues referred to a larger Bench, referred to hereinabove, the decision of the Constitution Bench of this Court in Gurbaksh Singh Sibbia (supra) is required to be referred to and considered in detail. The matter before the Constitution Bench in the case of Gurbaksh Singh Sibbia (supra) was arising out of the decision of the Full Bench of the Punjab and Haryana High Court. The High Court rejected the application for bail after summarising, what according to it was the true legal position, thus, "(1) The power under Section 438, Criminal Procedure Code, is of an extraordinary character and must be exercised sparingly in exceptional cases only; (2) Neither Section 438 nor any other provision ofthe Code authorises the grant of blanket anticipatory bail for offences not yet committed or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng an unprecedented step, insofar as the right to apply for bail is concerned. It had before it two cognate provisions of the Code: Section 437 which deals with the power of courts other than the Court of Session and the High Court to grant bail in nonbailable cases and Section 439 which deals with the "special powers" of the High Court and the Court of Session regarding bail..... The provisions of Sections 437 and 439 furnished a convenient model for the legislature to copy while enacting Section 438. If it has not done so and has departed from a pattern which could easily be adopted with the necessary modifications, it would be wrong to refuse to give to the departure its full effect by assuming that it was not intended to serve any particular or specific purpose. The departure, in our opinion, was made advisedly and purposefully: Advisedly, at least in part, because of the 41st Report of the Law Commission which, while pointing out the necessity of introducing a provision in the Code enabling the High Court and the Court of Session to grant anticipatory bail, said in para 39.9 that it had "considered carefully the question of laying down in the statute certain conditions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... striking dissimilarity with the situation in which a person who is arrested for the commission of a nonbailable offence asks for bail. In the latter situation, adequate data is available to the court, or can be called for by it, in the light of which it can grant or refuse relief and while granting it, modify it by the imposition of all or any of the conditions mentioned in Section 437. 13. This is not to say that anticipatory bail, if granted, must be granted without the imposition of any conditions. That will be plainly contrary to the very terms of Section 438. Though subsection (1) of that section says that the court "may, if it thinks fit" issue the necessary direction for bail, subsection (2) confers on the court the power to include such conditions in the direction as it may think fit in the light of the facts of the particular case, including the conditions mentioned in clauses (i) to (iv) of that subsection. The controversy therefore is not whether the court has the power to impose conditions while granting anticipatory bail. It clearly and expressly has that power. The true question is whether by a process of construction, the amplitude of judicial d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s alleged to have committed a nonbailable offence, is arrested or detained without warrant or appears or is brought before a court. Section 438 applies before the arrest is made and, in fact, one of the preconditions of its application is that the person, who applies for relief under it, must be able to show that he has reason to believe that "he may be arrested", which plainly means that he is not yet arrested. The nexus which this distinction bears with the grant or refusal of bail is that in cases falling under Section 437, there is some concrete data on the basis of which it is possible to show that there appear to be reasonable grounds for believing that the applicant has been guilty of an offence punishable with death or imprisonment for life. In cases falling under Section 438 that stage is still to arrive and, in the generality of cases thereunder, it would be premature and indeed difficult to predicate that there are or are not reasonable grounds for so believing. The foundation of the belief spoken of in Section 437(1), by reason of which the court cannot release the applicant on bail is, normally, the credibility of the allegations contained in the first inform ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 subsection (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 Evidence Act, the person released on bail shall be liable to be taken in police custody for facilitating the discovery. Besides, if and when the occasion arises, it may be possible for the prosecution to claim the benefit of Section 27 of the Evidence Act in regard to a discovery of facts made in pursuance of information supplied by a person released on bail by invoking the principle stated by this Court in State of U.P. v. Deoman Upadhyaya [AIR 1960 SC 1125 : (1961) 1 SCR 14, 26 : 1960 Cri LJ 1504] to the effect t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cial 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 by Section 438 is "of an extraordinary character and must be exercised sparingly in exceptional cases only". It may perhaps be right to describe the power as of an extraordinary character because ordinarily the bail is applied for under Section 437 or Section 439. These sections deal with the power to grant or refuse bail to a person who is in the custody of the police and that is the ordinary situation in which bail is generally applied for. But this does not justify the conclusion that the power must be exercised in exceptional cases only, because it is of an extraordinary character. We will really be saying once too often that all discretion has to be exercised with care and circums ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ension that some one is going to make an accusation against him, in pursuance of which he may be arrested. The grounds on which the belief of the applicant is based that he may be arrested for a nonbailable offence, must be capable of being examined by the court objectively, because it is then alone that the court can determine whether the applicant has reason to believe that he may be so arrested. Section 438(1), therefore, cannot be invoked on the basis of vague and general allegations, as if to arm oneself in perpetuity against a possible arrest. Otherwise, the number of applications for anticipatory bail will be as large as, at any rate, the adult populace. Anticipatory bail is a device to secure the individuals liberty; it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations, likely or unlikely 36. Secondly, if an application for anticipatory bail is made to the High Court or the Court of Session it must apply its own mind to the question and decide whether a case has been made out for granting such relief. It cannot leave the question for the decision of the Magistrate concerned under Section 437 of the Code, as and wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the fact that the very language of the statute compels this construction, there is an important principle involved in the insistence that facts, on the basis of which a direction under Section 438(1) is sought, must be clear and specific, not vague and general. It is only by the observance of that principle that a possible conflict between the right of an individual to his liberty and the right of the police to investigate into crimes reported to them can be avoided. A blanket order of anticipatory bail is bound to cause serious interference with both the right and the duty of the police in the matter of investigation because, regardless of what kind of offence is alleged to have been committed by the applicant and when, an order of bail which comprehends allegedly unlawful activity of any description whatsoever, will prevent the police from arresting the applicant even if he commits, say, a murder in the presence of the public. Such an order can then become a charter of lawlessness and a weapon to stifle promp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls concerned and least interference with the investigational rights of the police. The court has attempted through those orders to strike a balance between the individual's right to personal freedom and the investigational rights of the police. The appellants who were refused anticipatory bail by various courts have long since been released by this Court under Section 438(1) of the Code." 7.4 The aforesaid decision of the Constitution Bench in the case of Gurbaksh Singh Sibbia (supra) holds the field for number of years and the same has been followed by all the Courts in the country. While granting anticipatory bail, normally following conditions are imposed by the court/courts which as such are in consonance with the decision of the Constitution Bench in the case of Gurbaksh Singh Sibbia (supra) and Section 438(2) read with Section 437(3) of the Cr.P.C: 1. the applicant namely________________ shall furnish personal bond of Rs.______________ with his recent selfattested photograph and surety of the like amount on the following conditions at the satisfaction of the Investigating Officer; 2. the applicant shall remain present before the concerned police station on __________ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 under Section 438, Cr. P.C. granting bail cannot be curtailed. Despite the clear cut observations made by the Constitution Bench in Gurbaksh Singh Sibbia (supra) made in paragraphs 42 and 43, in the case of Salauddin Abdulsamad Shaikh (supra), a three Judge Bench of this Court has observed and held that the order of "anticipatory bail" has to be necessarily limit in time frame. In many cases subsequently the decision in the case of Salauddin Abdulsamad Shaikh (supra) has been followed, despite the specific observations made by the Constitution Bench in Gurbaksh Singh Sibbia (supra) made in paragraphs 42 and 43 which, as such, are just contrary to the view taken in subsequent decisions in the cases of Siddharam Satlingappa Mhetre (supra) and Salauddin Abdulsamad Shaikh (supra). At this stage, it is required to be noted that in the case of Salauddin Abdulsamad Shaikh (supra), this Court had not at all considered the decision of the Constitution Bench in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ever, 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 judgment. However, I am supplementing the conclusions arrived at by Shah, J with this separate judgment since I am of the view that while there is no disagreement on the essential reasoning, some aspects need to be discussed, in addition. 2. The following questions have been referred to this larger bench of five judges: (1) Whether the protection granted to a person under Section 438 Cr. PC shouldbe limited to a fixed period so as to enable the person to surrender before the Trial Court and seek regular bail. (2) Whether the life of an anticipatory bail should end at the time and stagewhen the accused is summoned by the court. Background 3. First, a background. The judgment of a five-judge bench of this court in Shri Gurbaksh Singh Sibbia and others v. State of Punjab [1980 (2) SCC 565] considered the available views on the provision for anticipatory bail (a concept not in existence till the enactment of the Criminal Proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... initely- 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 forty first report of the Law Commission, on whose recommendations the provision was introduced. Sibbia traced the history of the provision, from the stage of the recommendation, to the draft bill and later its enactment, observing as follows: "4. The CrPC, 1898 did not contain any specific provision corresponding to the present Section 438. Under the old Code, there was a sharp difference of opinion amongst the various High Courts on the question as to whether courts had the inherent power to pass an order of bail, in anticipation of arrest, the preponderance of view being that it did not have such power. The need for extensive amendments to the CrPC was felt for a long time and various suggestions were made in different quarters in order to make the Code more effective and comprehensive. The Law Commission of India, in its 41st Report dated September 24, 1969 pointed put the necessity of introducing a provision in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such person shall be released on bail." We considered carefully the question of laying down in the statute certain conditions under which alone anticipatory bail could be granted. But we found that it may not be practicable to exhaustively enumerate those conditions; and moreover, the laying down of such conditions may be construed as prejudging (partially at any rate) the whole case. Hence we would leave it to the discretion, of the; court and prefer not to fetter such discretion in the statutory provision itself. Superior Courts will, undoubtedly, exercise their discretion properly, and not make any observations in the order granting anticipatory bail which will have a tendency to prejudice the fair trial of the accused.' 5. The suggestion made by the Law Commission was, in principle, acceptedby the Central Government which introduced Clause 447 in the Draft Bill of the CrPC, 1970 with a view to conferring an express power on the High Court and the Court of Session to grant anticipatory bail. That Clause read thus : '447. (1) When any person has reason to believe that he would be arrested on an accusation of having committed a non-bailable offence, he may apply to the High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 further that where a legitimate case for remand to police custody is made or a reasonable claim to secure incriminating material from information likely to be received from the offender "under Section 27 of the Evidence Act can be made out, the power Under Section 438 should not be exercised." The full bench held that Section 438 cannot be availed in respect of offences punishable with death or life imprisonment "unless the court at that very stage is satisfied that such a charge appears to be false or groundless." Likewise, in larger public interest and the state's interest Section 438 cannot be resorted to in "economic offences involving blatant corruption at the higher rungs of the executive and political power" and that "(8) Mere general allegation of mala fides in the petition are inadequate. The court must be satisfied on materials before it that the allegations of mala fides are substantial and the accusation appears to be false and gro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... articular 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 the latter situation, adequa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to the Court of Session and the High Court in granting anticipatory bail because, firstly, these are higher courts manned by experienced persons, secondly, their orders are not final but are open to appellate or revisional scrutiny and above all because, discretion has always to be exercised by courts judicially and not according to whim, caprice or fancy. On the other hand, there is a risk in foreclosing categories of cases in which anticipatory bail may be allowed because life throws up unforeseen possibilities and offers new challenges. Judicial discretion has to be free enough to be able to take these possibilities in its stride and to meet these challenges. While dealing with the necessity for preserving judicial discretion unhampered by rules of general application. -------- -------------- ------ 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iate conditions can be imposed under Section 438(2) so as to ensure an uninterrupted investigation. One of such conditions can even be that in the event of the police making out a case of a likely discovery under Section 27 of the Evidence Act, the person released on bail shall be liable to be taken in police custody for facilitating the discovery. Besides, if and when the occasion arises, it may be possible for the prosecution to claim the benefit of Section 27 of the Evidence Act in regard to a discovery of facts made in pursuance of information supplied by a person released on bail by invoking the principle stated by this Court in State of U.P. v. Deoman Upadhyaya [AIR 1960 SC 1125 : (1961) 1 SCR 14, 26 : 1960 Cri LJ 1504] to the effect that when a person not in custody approaches a police officer investigating an offence and offers to give information leading to the discovery of a fact, having a bearing on the charge which may be made against him, he may appropriately be deemed so have surrendered himself to the police. The broad foundation of this rule is stated to be that Section 46 of the Code of Criminal Procedure does not contemplate any formality before a person can be sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l to a person who is in the custody of the police and that is the ordinary situation in which bail is generally applied for. But this does not justify the conclusion that the power must be exercised in exceptional cases only, because it is of an extraordinary character. We will really be saying once too often that all discretion has to be exercised with care and circumspection, depending on circumstances justifying its exercise. It is unnecessary to travel beyond it and subject the wide power conferred by the legislature to a rigorous code of self-imposed limitations. --------- ---------- --------- 26. We find a great deal of substance in Mr Tarkunde's submission that since denial of bail amounts to deprivation of personal liberty, the court should lean against the imposition of unnecessary restrictions on the scope of Section 438, especially when no such restrictions have been imposed by the legislature in the terms of that section. Section 438 is a procedural provision which is concerned with the personal liberty of the individual, who is entitled to the benefit of the presumption of innocence since he is not, on the date of his application for anticipatory bail, convicted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r a non-bailable offence. The use of the expression "reason to believe" shows that the belief that the applicant may be so arrested must be founded on reasonable grounds. Mere 'fear' is not 'belief', for which reason it is not enough for the applicant to show that he has some sort of a vague apprehension that some one is going to make an accusation against him, in pursuance of which he may be arrested. The grounds on which the belief of the applicant is based that he may be arrested for a non-bailable offence, must be capable of being examined by the court objectively, because it is then alone that the court can determine whether the applicant has reason to believe that he may be so arrested. Section 438(1), therefore, cannot be invoked on the basis of vague and general allegations, as if to arm oneself in perpetuity against a possible arrest. Otherwise, the number of applications for anticipatory bail will be as large as, at any rate, the adult populace. Anticipatory bail is a device to secure the individuals liberty; it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations, likely or unlikely 36. Secondly, if an application for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 the fact that the very language of the statute compels thisconstruction, there is an important principle involved in the insistence that facts, on the basis of which a direction under Section 438(1) is sought, must be clear and specific, not vague and general. It is only by the observance of that principle that a possible conflict between the right of an individual to his liberty and the right of the police to investigate into crimes reported to them can be avoided. A blanket order of anticipatory bail is bound to cause serious interference with both the right and the duty of the police in the matter of investigation because, regardless of what kind of offence is alleged to have been committed by the applicant and when, an order o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 right to personal freedom and the investigational rights of the police. The appellants who were refused anticipatory bail by various courts have long since been released by this Court under Section 438(1) of the Code." 8. The judgment in Sibbia was understood and no apprehensions were reflected about the duration of anticipatory bail orders, in the next decade and a half. While so, in Salauddin Abdulsamad Shaikh V. State of Maharashtra, (1996) 1 SCC 667 for the first time, a discordant note appears to have been struck. It was stated in Salauddin (supra) that grant of anticipatory bail should not mean that the regular court, which is to try the offender, would be "bypassed". This court approved the approach of the High Court, which ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used 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 merit s. The decision in Salauddin case [(1996) 1 SCC 667] has to be so understood." 10. Again, Sunita Devi; Nirmal Jeet Kaur and Adri Dharan Das (supra) are three later decisions where this court applied the ratio in Salauddin and echoed the concern that the " protective umbrella" of Section 438 cannot be extended beyond the time period indicated in the previous case (Salauddin) or till the applicant avails remedies up to high courts and that doing so would mean that the regular court would be bypassed. The court reiterated that Section 439 would be rendered a dead letter if the applicant is allowed the benefit of an order under Section 438 till, he avails the remedy of regular bail up to higher courts. In HDFC Bank Ltd. v. J.J. Mannan 2010 (1) SCC 679, this court followed and applied the reasoning in Salauddin, to the extent that certain limitations must be imposed, while granting anticipatory bail. A new axiom too was added, that if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w in arresting the accused. The courts considering the bail application should try to maintain fine balance between the societal interest vis-à-vis personal liberty while adhering to the fundamental principle of criminal jurisprudence that the accused that the accused is presumed to be innocent till he is found guilty by the competent court. 94. The complaint filed against the accused needs to be thoroughly examined including the aspect whether the complainant has filed false or frivolous complaint on earlier occasion. The court should also examine the fact whether there is any family dispute between the accused and the complainant and the complainant must be clearly told that if the complaint is found to be false or frivolous, then strict action will be taken against him in accordance with law. If the connivance between the complainant and the investigating officer is established then action be taken against the investigating officer in accordance with law. 95. The gravity of charge and exact role of the accused must be properly comprehended. Before arrest, the arresting officer must record the valid reasons which have led to the arrest of the accused in the case diary. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, 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. 100. The Constitution Bench in the same judgment also observed that a person seeking anticipatory bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints and conditions on his freedom, by the acceptance of conditions which the court may deem fit to impose, in consideration of the assurance that if arrested, he shall enlarged on bail. 101. The proper course of action ought to be that after evaluating the averments and accusation available on the record if the court is inclined to grant anticipatory bail then an interim bail be granted and notice be issued to the public prosecutor. After hearing the public prosecutor the court may either reject the bail application or confirm the initial order of granting bail. The court would certainly be entitled to impose conditions for the grant of bail. The public prosecu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the provisions of the General Clauses Act but ordinarily after hearing the public prosecutor when the bail order is confirmed then the benefit of the grant of the bail should continue till the end of the trial of that case. 106. The judgment in Salauddin Abdulsamad Shaikh (supra) is contrary to legislative intent and the spirit of the very provisions of the anticipatory bail itself and has resulted in an artificial and unreasonable restriction on the scope of enactment contrary to the legislative intention. 107. The restriction on the provision of anticipatory bail under section 438 Cr.P.C. limits the personal liberty of the accused granted under Article 21 of the constitution. The added observation is nowhere found in the enactment and bringing in restrictions which are not found in the enactment is again an unreasonable restriction. It would not stand the test of fairness and reasonableness which is implicit in Article 21 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usation 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 from his power to do so. This finding of the said judgment (supra) is contrary to the legislative intention and law which has been declared by a Constitution Bench of this court in Sibbia's case (supra). 112. The validity of the restrictions imposed by the Apex Court, namely, that the accused released on anticipatory bail must submit himself to custody and only thereafter can apply for regular bail . This is contrary to the basic intention and spirit of section 438 Cr.P.C. It is also contrary to Article 21 of the Constitution. The test of fairness and reasonableness is implicit under Article 21 of the Constitution of India. Directing the accused to surrender to custody after the limited period amounts to deprivation of his personal liberty. 113. It is a settled legal position crystallized by the Constitution Bench of this court in Sibbia's case (supra) that the courts s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uate 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 implication in the cases is a matter of common knowledge and concern; viii. While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused; ix. The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; x. Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail. 123. The arrest should be the last option and it s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Provided that the Court may direct that a person referred to in clause (i) or clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm. Provided further that the Court may also direct that a person referred to in clause (ii) be released on bail if it is satisfied that it is just and proper so to do for any other special reason. Provided also that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court. Provided also that no person shall if the offence alleged to have been committed by him is punishable with death imprisonment for l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riod, 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 grounds for believing that the accused is not guilty of any such offence, it shall release the accused, if he is in custody, on the execution by him of a bond without sureties for his appearance to hear judgment delivered. 438. Direction for grant of bail to person apprehending arrest. (1) When any person has reason to believe that he may be arrested on an accusation of having committed a non- bailable offence, he may apply to the High Court or the Court of Session for a direction under this section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.* * By amendment, made in 2005, Subsection (1) has been substituted as follows (the amended portion is brackets; the amendment has not yet been brought into force): ----------------------------------------------------------------------------------- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 facts to the Court or to any police officer; (iii) a condition that the person shall not leave India without theprevious permission of the Court; (iv) such other condition as may be imposed under sub- section (3) ofsection 437, as if the bail were granted under that section. (3) If such person is thereafter arrested without warrant by an officer incharge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail; and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person he shall issue a bailable warrant in conformity with the direction of the Court under sub-section (1). (4) Nothing in this Section shall apply to any case involving the arrestof any person on accusation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 Article 21, by humanizing the harsh authority over individual liberty. 15. It is submitted, therefore that the substantive constitutional right of personal liberty can be denied or curtailed only in accordance with the procedure established by a law that is fair, just and reasonable. That substantial right is procedurally enforced, apart from others, in terms of grant of Bail to an accused in a criminal case. Chapter XXXIII of the Code contains elaborate provisions relating to grant of bail. Bail is granted to one who is arrested in a non-bailable offence or has been convicted of an offence after trail. The effect of granting bail is to release the accused from internment though the court would still retain constructive control over him through the sureties. In case the accused is released on his own bond such constructive control could still be exercised throug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot 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 Singh v. State of U.P (2018) 3 SCC 22). 18. Counsel submitted that the provision in Section 438 read with Section 439 (2) of the Code, contain clear guidelines and limitations. It was highlighted that the discretion to impose (or not impose) condition is left to the concerned court and the Code therefore cannot be interpreted to cut short its duration either till filing of charge-sheet or unearthing of alleged fresh materials during investigation. It is submitted that the power to curtail or to diminish, the duration of anticipatory bail, in a suitable case, is governed by Section 439(2) of the Code in the same manner which is enumerated in Section 437 of the Code (which is applicable to a Court other than High Court or Court of Session). The counsel urged that there have been instances of courts passing orders, including in some of the orders/judgmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 already been granted by the High Court unless new circumstances arise during the progress of the trial after an accused person has been admitted to bail by the High Court. If, however, a Court of Session had admitted an accused person to bail, the State has two options. it may move the Sessions Judge if certain new circumstances have arisen which were not earlier known to the State and necessarily, therefore, to that Court. The State may as well approach the High Court being the superior Court under Section 439 (2) to commit the accused to custody. When, however, the State is aggrieved by the order of the Sessions Judge granting bail and there are no new circumstances that leave copied up except those already existed, it is futile for the State to move the Sessions Judge again and it is competent in law to move the High Court for cancellation of the bail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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, or deemed to be granted, under Section 167 (2) merely upon the later filing of a charge sheet. The court had observed as follows, in Aslam Babalal Desai (supra) in this context: "It will thus be seen that once an accused person has been released on bail by the thrust of the proviso to Section 167 (2), the mere fact that subsequent to his release a challan has been filed is not sufficient to cancel his bail. In such a situation his bail can be cancelled only if considerations germane to cancellation of bail under Section 437 (5) or for that matter Section 439 (2) exist. That is because the release of a person under Section Section 167 (2) is equated to his release under Chapter XXXIII of the Code." It was submitted that therefore, the mere filing of a charge sheet per se cannot be an event which compels an accused who has the benefit of anticipato ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lds, in both cases it is clear from a bare reading of the section that the power of arrest cannot be exercised in ever FIR that is registered u/s 154 Cr.PC. This power is circumscribed by the conditions laid down in this section. Moreover, this principle that the power of arrest is not required to be exercised in every case was recognized in the case of Joginder Kumar v. State of U.P 1994 (4) SCC 260; Lalitha Kumari v. State of U.P 2014 (2) SCC 1; and Arnesh Kumar v. State of Bihar 2014 (8) SCC 273. This Court in M.C. Abraham v. State of Maharastra 2003 (2) SCC 649 held that it was not mandatory for the police to arrest a person only because his/her anticipatory bail had been rejected. It was further stated that the power of arrest is then further circumscribed by Section 438. As recognized by the Law Commission, there are cases where the power of arrest is not required or allowed to be exercised. Exercising power of arrest in such cases would be a grave violation of a person's right and liberty. Such exercise of power would amount to misuse of Section 41. The check on the power of arrest and custody provided by Sections 437 or 439 is limited as the ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rinciples can again be revisited if the need arises. In other words, considering any relevant change in circumstances the prosecution can seek the arrest of the accused. The only difference is that the power of arrest in these cases is exercised only after judicial scrutiny. This provision envisions that the Code presupposes that orders once passed under Sections 438 and 439 will continue till a contrary order is passed under Section 439(2). The order passed under Sections 438 or 439 are not and temporary or time bound. Therefore, a person enjoying the benefit of orders under these sections can be taken into custody only when a specific direction is passed under Section 439(2). This direction for arrest under Section 439 (2) is different from seeking cancellation of bail. 27. It was argued that undoubtedly violation of a condition imposed in an order passed under Section 438 can lead to a direction of arrest under Section 439(2). However, the scope of Section 439(2) is not limited to only cancellation of bail. Counsel stated that this proposition of law was considered by this court in Pradeep Ram v. State of Jharkhand 2019 SCC Online (SC) 825.&n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filing of an FIR the courts should grant relief, limited till the point in time, when the FIR is filed. In the second situation, i.e. after the FIR is filed, the court may limit the grant of anticipatory bail till the point of time when a charge sheet is filed; in the third situation, if the application is made after filing the charge sheet, it is up to the court, to grant or refuse it altogether, looking at the nature of the charge. Likewise, if arrest is apprehended, the court should consider the matter in an entirely discretionary manner, and impose such conditions as may be deemed appropriate. 30. Mr. Raval submitted that in every contingency, the court is not powerless after the grant of an order of anticipatory bail; it retains the discretion to revisit the matter if new material relevant to the issue, is discovered and placed on record before it. He highlighted Section 439(2) and argued that that provision exemplified the power of the court to modify its previous approach and even revoke altogether an earlier order granting anticipatory bail. It was submitted that the bar under Section 362 of the Code (against review of an order by a criminal court) is inapplicable to matte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al freedom and the right of investigation of the police. For this purpose, in granting relief under Section 438(1), appropriate conditions can be imposed under Section 438(2) to ensure an unimpeded investigation. The object of imposing conditions is to avoid the possibility of the person or accused hampering investigation. Thus, any condition, which has no reference to the fairness or propriety of the investigation or trial, cannot be countenanced as permissible under the law. Consequently, courts should exercise their discretion in imposing conditions with care and restraint. 33. The law presumes an accused to be innocent till his guilt is proved. As a presumably innocent person, he is entitled to all the fundamental rights including the right to liberty guaranteed under Article 21 of the Constitution. Counsel stated that at the same time, while granting anticipatory bail, the courts are expected to consider and keep in mind the nature and gravity of accusation, antecedents of the applicant, namely, about his previous involvement in such offence and the possibility of the applicant to flee from justice. It is also the duty of the Court to ascertain whether accusation has been mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt to judge of the reasonableness of his belief, the existence of which is the sine qua non of the exercise of power conferred by the Section. It was pointed out that the provisions of Section 438 cannot be invoked after the arrest of the accused. After arrest, the accused must seek his remedy under Section 437 or Section 439 of the Code, if he wants to be released on bail in respect of the offence or offences for which he is arrested. The following passages in Savitri Agarwal (supra) were relied upon: "24. While cautioning against imposition of unnecessary restrictions on the scope of the section, because, in its opinion, overgenerous infusion of constraints and conditions, which were not to be found in Section 438 of the Code, could make the provision constitutionally vulnerable, since the right of personal freedom, as enshrined in Article 21 of the Constitution, cannot be made to depend on compliance with unreasonable restrictions, the Constitution Bench laid down the following guidelines, which the courts are required to keep in mind while dealing with an application for grant of anticipatory bail: ********** **************** (iv) No blanket order of bail should be passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould therefore thwart a complete and objective investigation. 37. Mr. Aman Lekhi, learned Additional Solicitor General, urged that the general drift of reasoning in Sibbia was not in favour of a generalized imposition of conditions- either as to the period (in terms of time, or in terms of a specific event, such as filing of charge sheet) limiting the grant of anticipatory bail. It was submitted that the text of Section 439(2) applied per se to all forms of orders including an order or direction to release an applicant on bail (i.e. grant of anticipatory bail), upon the court's satisfaction that it is necessary to do so. Such order (of cancellation, under Section 439(2) or direction to arrest) may made be where the conditions made applicable at the time of grant of relief, are violated or not complied with, or where the larger interests of a fair investigation necessitate it. Analysis and Conclusions Re Point No 1: Whether the protection granted to a person under Section 438, CrPC should be limited to a fixed period so as to enable the person to surrender before the Trial Court and seek regular bail 38. The concept of bail, i.e. preserving the liberty of citizen - even accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the necessity for granting anticipatory bail arises mainly due to influential persons attempting to implicate their rivals in false cases, or disgracing them by getting them detained in jail. The report further noted that apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail, there seems to be no justification to require him first to submit to custody, remain in prison for some days and then apply for bail. The report recommended that a provision be included for the direction to grant bail in such cases, and that this power vest in the High Courts and Courts of Session only. The report, however, did not include the conditions for grant of anticipatory bail in the suggested language for the provision. Certain conditions that courts may include were, however included in the provision that was enacted as Section 438 of the Cr.PC, 1973. 42. The term 'anticipatory bail' finds no place in the Cr.PC itself but was used by the Law Commission of India in its 41st Report. The term was used to convey that it was an application for bail in anticipation of arrest, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edy 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 restrictions on the scope of Section 438, when no such restrictions are prescribed by the legislature under that provision. The Court observed that Section 438(1) is couched in broad and unqualified terms and was of the opinion that such broad language ought not to be infused with restraints and conditions which the legislature itself did not think proper or necessary to impose. The court laid emphasis on the primacy of the presumption of innocence in criminal jurisprudence, and observed that Section 438 was not enacted on a clean slate, but rather within the context of the existing provisions, Sections 437 (dealing with the power of courts other than the Court of Session and the High Court to grant bail in nonbailable cases) and Section 439 (which dea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure 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 bail. Nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the accused's presence not being secured during trial; a reasonable apprehension that the witnesses might be tampered with, and "the larger interests of the public or the state" are some of the considerations. A person seeking relief (of anticipatory bail) continues to be a man presumed to be innocent. (Para 31, Sibbia). (viii) There can be no presumption that any class of accused- i.e. those accused ofparticular crimes, or those belonging to the poorer sections, are likely to abscond. (Para 32, Sibbia). (ix) Courts should exercise their discretion while considering applications foranticipatory bail (a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, of harassment - at times by unwarranted arrests, the provision for anticipatory bail was made. It was not hedged with any conditions or limitations- either as to its duration, or as to the kind of alleged offences that an applicant was accused of having committed. The courts had the discretion to impose such limitations (likeco-operation with investigation, not tampering with evidence, not leaving the country etc) as were reasonable and necessary in the peculiar circumstances of a given case. However, there was no invariable or inflexible rule that the applicant had to make out a special case, or that the relief was to be of limited duration, in a point of time, or was unavailable for any particular class of offences. 47. At this stage, it would be essential to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deprivation of personal liberty, the court should lean against the imposition of unnecessary restrictions on the scope of Section 438, especially when not imposed by the legislature. In Sibbia, it was observed that: "Anticipatory bail is a device to secure the individual's liberty; it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations, likely or unlikely." 50. The interpretation of Section 438- that it does not encapsulate Article 21, is erroneous. This court is of the opinion that the issue is not whether Section 438 is an intrinsic element of Article 21: it is rather whether that provision is part of fair procedure. As to that, there can be no doubt that the provision for anticipatory bail is pro-liberty and enables one anticipating arrest, a facility of approaching the court for a direction that he or she not be arrested; it was specifically enacted as a measure of protection against arbitrary arrests and humiliation by the police, which Parliament itself recognized as a widespread malaise on the part of the police. 51. The forty first and forty-eight reports of the Law Commission were noticed by this court in Sibbia ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rant 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 shall be finally heard by the Court. (1-B) The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice." Interestingly, the 177th report of the Law Commission lamented that the power of arrest was being misused by police in a widespread manner. One hundred and seventy seventh [177th] Report, submitted in December 2001 (Law Commission of India, 177th Report, Annexure-III para1.8 said that: "Misuse of power of arrest:- Notwithstanding the safeguards contained in the Code of Criminal Procedure and the Constitution referred to above, the fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the prison population is awaiting trial in India". Therefore, the need for a provision to ensure anticipatory bail, is as crucial, as it was at the time of its introduction, and at the time Sibbia (supra) was decided. 53. Various reasons- given in judgments, rendered after Sibbia (supra), starting with Salauddin (supra), have highlighted that anticipatory bail orders have to be constrained by conditions, notably with reference to time (i.e. three months, etc) or till the happening of a certain event. The reasons, and observations, limiting the duration of grant of anticipatory bail are outlined below: (1) "such anticipatory bail orders should be of a limited duration only and ordinarily on the expiry of that duration or extended duration the court granting anticipatory bail should leave it to the regular court to deal with the matter on an appreciation of evidence placed before it after the investigation has made progress or the charge-sheet is submitted". (Saluddin and K.L. Verma, supra). (2) An order of anticipatory bail can be granted in cases of "serious nature as for example murder". Consequently, its duration should "be limited and ordinarily the Court granting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... san 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 order would be "contrary to the terms" of Section 438; and furthermore, that conditions mentioned in Section 438(2) could be imposed while granting anticipatory bail. Here, one is conscious of the fact that the requirement of imposing conditions is not compulsive (noticing the use of the term "may" which precedes the requirement of imposing conditions). Nevertheless, an unconditional order, in the sense of an order not even imposing conditions mentioned in Section 438(2) can impede or hamper investigation, Sibbia (supra) held that the conditions mentioned in that provision should be imposed. This requirement is more a matter of prudence, while granting relief. 55. This court cannot lose sight of the fact that the Law Commission's 41st and 48th report focused on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ipatory 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 law on this aspect relating to conditions. In this background, it is important to notice that the only bar, or restriction, imposed by Parliament upon the exercise of the power (to grant anticipatory bail) is by way of a positive restriction, i.e. in the case where accused are alleged to have committed offences punishable under Section 376(3) or Section 376AB or Section 376DA or Section 376DB of the Indian Penal Code. In other words, Parliament has now denied jurisdiction of the courts (i.e. Court of Session and High Courts) from granting anticipatory bail to those accused of such offences. The amendment (Code of Criminal Procedure Amendment Act, 2018) introduced Section 438(4)) reads as follows: "(4) Nothing in this secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icipated in Sibbia (supra). 59. The controlling expressions under Section 438(2) spell out three distinct conditions, which the court granting anticipatory bail can include as directions. These are- that the applicant makes himself available for interrogation by police officer, as and when required; that such applicant should not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer; a condition that the person should not leave India without the permission of the court. Further conditions as may be deemed essential, may also be imposed by the court, under Section 437(3). The Court in Sibbia (supra) was alive to the necessity of imposing conditions as is evident from para 13 of its judgment. The court observed that there was nothing in law which stated that whenever anticipatory bail is granted, it should be without imposing any of those conditions. Sibbia (supra) went on to state that such unconditional orders would be plainly contrary to the very terms of Section 438. The court also noted that though couched in discretionary terms, whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ach of these is contemplated as a condition and is invariably included in every order granting anticipatory bail. In the event of violation or alleged violation of these, the concerned authority is not remediless; recourse can be had to Section 438(2) read with Section 437(3). Any violation of these terms would attract a direction to arrest him. This power or direction to arrest is found in Section 437(5). However, that provision has no textual application to regular bail granted by the Court of Sessions or High Courts under Section 439 or directions not to arrest, i.e. order of anticipatory bail under Section 438. Secondly, Section 439(2) which is cast in wide terms, adequately covers situations when an accused does not cooperate during the investigation or threatens to, or intimidates witness[es] or tries to tamper with other evidence. 62. It is important to notice, here that there is nothing in the provisions of Section 438 which suggests that Parliament intended to restrict its operation, either as regards the time period, or in terms of the nature of the offences in respect of which, an applicant had to be denied bail, or which special considerations were to apply. In this co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cardinal principle of construction of statute is that the true or legal meaning of an enactment is derived by considering the meaning of the words used in the enactment in the light of any discernible purpose or object which comprehends the mischief and its remedy to which the enactment is directed. It is sufficient, therefore to notice that when Section 438 - in the form that exists today, (which is not substantially different from the text of what was introduced when Sibbia was decided, except the insertion of sub-section (4)) was enacted, Parliament was aware of the objective circumstances and prevailing facts, which impelled it to introduce that provision, without the kind of conditions that the state advocates to be intrinsically imposed in every order under it. 65. The narrower interpretation preferred by this Court - in line of decisions starting with Salauddin (supra) highlighting the concerns with respect to the stages of investigation and enquiry and the nature and seriousness of the offence, in the opinion of the Court, ought not to lead one to cutting down the amplitude and the power and discretion otherwise available with the Courts. The danger of this Court pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have surrendered himself to the police. Section 46 of the Code of Criminal Procedure does not contemplate any formality before a person can be said to be taken in custody : submission to the custody by word or action by a person in sufficient. A person directly giving to a police officer by word of mouth information which may be used as evidence against him, may be deemed to have submitted himself to the "custody" of the police officer within the meaning of Section 27 of the Indian Evidence Act : Legal Remembrancer v Lalit Mohan Singh ((1921) I.L.R. 49 Cal.167), Santokhi Beldar v. King Emperor ((1933) I.L.R. 12 Pat. 241). Exceptional cases may certainly be imagined in which a person may give information without presenting himself before a police officer who is investigating an offence. For instance, he may write a letter and give such information or may send a telephonic or other message to the police officer." This view was reiterated and applied in Vallabhdas Liladhar v Asst. Collector of Customs 1965 (3) SCR 854 . The observations in Sibbia (supra) are relevant, and are reproduced again, for facility of reference: "One of such conditions can even be that in the event of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the argument of the learned Additional Solicitor-General, that the anticipatory bail cannot be granted unless it is alleged (and naturally, also shown, because mere allegation is never enough) that the proposed accusations are mala fide ? It is understandable that if mala fides are shown anticipatory bail should be granted in the generality of cases. But it is not easy to appreciate why an application for anticipatory bail must be rejected unless the accusation is shown to be mala fide. This, truly, is the risk involved in framing rules by judicial construction. Discretion, therefore, ought to be permitted to remain in the domain of discretion, to be exercised objectively and open to correction by the higher courts. The safety of discretionary power lies in this twin protection which provides a safeguard against its abuse. According to the sixth proposition framed by the High Court, the discretion under Section 438cannot be exercised in regard to offences punishable with death or imprisonment for life unless, the court at the stage of granting anticipatory bail, is satisfied that such a charge appears to be false or groundless. Now, Section 438 confers on the High Court and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nds 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 circumstances of any case, where the allegations relating to the commission of offences of a serious nature, with certain special conditions, is a matter of discretion to be exercised, having regard to the nature of the offences, the facts shown, the background of the applicant, the likelihood of his fleeing justice (or not fleeing justice); likelihood of co-operation or non-co-operation with the investigating agency or police, etc. There can be no inflexible time frame for which an order of anticipatory bail can continue. 69. Therefore, this court holds that the view expressed in Salauddin Abdulsamad Shaikh, K.L. Verma, Nirmal Jeet Kaur, Satpal Singh, Adri Dharan Das, HDFC Bank, J.J. Manan and Naresh Kumar Yadav (supra) about the Court o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l order would be for a time duration, or be valid till the filing of the FIR, or the recording of any statement under Section 161, Cr. PC, etc. Other conditions may be imposed, if the facts of the case so warrant. Re Question No. 2: Whether the life of an anticipatory bail should end at the time and stage when the accused is summoned by the court. 70. The question here is whether there is anything in the law which per se requires that upon filing of the charge-sheet, or the summoning of the accused, by the court - (or even the addition of an offence in the charge-sheet, of which an applicant on bail is accused of freshly), his liberty ought to be forfeited and that he should be asked to surrender and apply for regular bail. The observations about the width and amplitude of the power under Section 438, made in answer to the first question, are equally relevant here too. In the present context, further, the judgment and observations of this Court in its interpretation of Section 167(2) are telling. It was held in Gursharan Singh (supra), the release by grant of bail of an accused under Section 167(2) amounts to "deemed bail". This is borne out by Section 167(2) w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is Section 438 "that in the event of such arrest" the applicant be released on bail. Therefore, when an accused in fact is granted bail, and the conditions outlined in Section 438 (2) are included as part of the direction "to release" him in the event of arrest, all the necessary conditions which he is obliged to follow exist. Section 438 (3) outlines the steps to be taken, in the event of arrest of one who has been granted relief under Section 438 (1). In the event of non-compliance with any or all conditions, imposed by the court, the concerned agency or the police, a direction can be sought from the court under Section 439 (2). 72. The view that this court expresses about the prosecution's option to apply for a direction to arrest the accused, finds support in Pradeep Ram (supra) where this court held as follows: "21. Both Sections 437 (5) and 439 (2) empowers the Court to arrest an accused and commit him to custody, who has been released on bail under Chapter XXXIII. There may be numerous grounds for exercise of power under 437 (5) and 439 (2). The principles and grounds for cancelling a bail are well settled, but in the present case, we are concerned only with one aspect of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; ******** 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 is already on bail and with regard to whom serious offences have been added to apply for bail in respect of new offences added and the Court after applying the mind may either refuse the bail or grant the bail with regard to new offences. In a case, bail application of the accused for newly added offences is rejected, the accused can very well be arrested. In all cases, where accused is bailed out under orders of the Court and new offences are added including offences of serious nature, it is not necessary that in all cases earlier bail should be cancelled by the Court before granting permission to arrest an accused on the basis of new offences ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 which had granted the bail." 73. Earlier, in the decision reported as Dolat Ram v State of Haryana 1995 (1) SCC 349 this court had observed that "bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial." 74. This decision was followed, and its ratio applied, in Hazari Lal Das v State of West Bengal & Anr 2009 (10) SCC 652. The decision in Bhadresh Bipinbhai Sheth v. State of Gujarat stated 2016 (1) SCC 152, after culling out the principles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ified 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 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. This answers question No. 2 referred to the present Bench. Conclusions 77. This court answers the referenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (c)Section 438 Cr. PC does not compel or oblige courts to impose conditions limiting relief in terms of time, or upon filing of FIR, or recording of statement of any witness, by the police, during investigation or inquiry, etc. While weighing and considering an application (for grant of anticipatory bail) the court has to consider the nature of the offence, the role of the person, the likelihood of his influencing the course of investigation, or tampering with evidence (including intimidating witnesses), likelihood of fleeing justice (such as leaving the country), etc. The courts would be justified - and ought to impose conditions spelt out in Section 437 (3), Cr. PC [by virtue of Section 438 (2)]. The necessity to impose other restrictive conditions, would have to be weighed on a case by case basis, and depending upon the materials produced by the state or the investigating agency. Such special or other restrictive conditions may be imposed if the case or cases warrant, but should not be imposed in a routine manner, in all cases. Likewise, conditions which limit the grant of anticipatory bail may be granted, if they are required in the facts of any case or cases; however, such lim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... investigation, evasion, intimidation or inducement to witnesses with a view to influence outcome of the investigation or trial, etc. The court - in this context is the court which grants anticipatory bail, in the first instance, according to prevailing authorities. (i)The correctness of an order granting bail, can be considered by the appellate or superior court at the behest of the state or investigating agency, and set aside on the ground that the court granting it did not consider material facts or crucial circumstances. (See Prakash Kadam & Etc. Etc vs Ramprasad Vishwanath Gupta & 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 439 (2), Cr. PC. (j)The judgment in Mhetre (and other similar decisions) restrictive conditions cannot be imposed at all, at the time of granting anticipatory bail are hereby overruled. Likewise, the decision in Salauddin and subsequent decisions (including K.L. Verma, Nirmal Jeet Kaur) which state that such restrictive conditions, or terms limiting the grant of anticipatory bail, to a period of time are hereby overruled. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iteration and further that the restrictive manner in which Section 438 of the Cr.PC has been interpreted in Salauddin Abdulsamad Shaikh v. State of Maharashtra 1996 (1) SCC 667 is incorrect. Therefore, we agree that Salauddin (supra) and other cases which have followed it needs to be overruled. Similarly, the wide interpretation in Siddharam Satlingappa Mhetre v. State of Maharashtra & Ors. 2011 (1) SCC 694, i.e. that no conditions can be imposed while granting an order of anticipatory bail, is incorrect. Mhetre (supra) to that extent and other judgments which have followed it are accordingly overruled. In view of the said conclusions, we are in agreement with the answers to the reference made to the larger Bench. FINAL CONCLUSIONS: In view of the concurring judgments of Justice M.R. Shah and of Justice S. Ravindra Bhat with Justice Arun Mishra, Justice Indira Banerjee and Justice Vineet Saran agreeing with them, the following answers to the reference are set out: (1) Regarding Question No. 1, this court holds that the protectiongranted to a person under Section 438 Cr. PC should not invariably be limited to a fixed period; it should inure in favour of the accused without any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tigation or inquiry, etc. While considering an application (for grant of anticipatory bail) the court has to consider the nature of the offence, the role of the person, the likelihood of his influencing the course of investigation, or tampering with evidence (including intimidating witnesses), likelihood of fleeing justice (such as leaving the country), etc. The courts would be justified - and ought to impose conditions spelt out in Section 437 (3), Cr. PC [by virtue of Section 438 (2)]. The need to impose other restrictive conditions, would have to be judged on a case by case basis, and depending upon the materials produced by the state or the investigating agency. Such special or other restrictive conditions may be imposed if the case or cases warrant, but should not be imposed in a routine manner, in all cases. Likewise, conditions which limit the grant of anticipatory bail may be granted, if they are required in the facts of any case or cases; however, such limiting conditions may not be invariably imposed. (4)Courts ought to be generally guided by considerations such as the nature and gravity of the offences, the role attributed to the applicant, and the facts of the case, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rants 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 439 (2), Cr. PC. (12) The observations in Siddharam Satlingappa Mhetre v. State of Maharashtra & Ors 2011 (1) SCC 694 (and other similar judgments) that no restrictive conditions at all can be imposed, while granting anticipatory bail are hereby overruled. Likewise, the decision in Salauddin Abdulsamad Shaikh v. State of Maharashtra (1996 (1) SCC 667) and subsequent decisions (including K.L. Verma v. State & Anr 1998 (9) SCC 348 ; Sunita Devi v. State of Bihar & Anr 2005 (1) SCC 608; Adri Dharan Das v. State of West Bengal 2005 (4) SCC 303; Nirmal Jeet Kaur v. State of M.P. & Anr 2004 (7) SCC 558; HDFC Bank ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
