It's all about Anticipatory Bail..!!

Anticipatory Bail

There are many misconceptions floating around regarding Anticipatory Bail. One such misconception is that a 498a case is an automatic arrest warrant. However, it does not necessarily have to be so. In 498A cases, the moment you get an anticipatory bail, the police are eliminated as a factor and you’ve pretty much won the most difficult part of this fight. Another misconception is that the filing of FIR is a must before getting Anticipatory Bail. Again, this is simply not true.

Most of the times, lawyers don’t fully understand the provision of anticipatory bail given in Section 438 of Cr. P. C. This article tries to explain the meaning, usage, conditions applicable, regarding Anticipatory Bail with the help of recent Supreme Court Judgments.

What is Anticipatory Bail?

Section 438 of the Code of Criminal Procedure, 1973 provides that 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 Sessions 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.

As observed in Balchand Jain Vs. State of M.P., `anticipatory bail' means `bail in anticipation of arrest'. 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. When a competent court grants `anticipatory bail', it makes an order that in the event of arrest, a person shall be released on bail. There is no question of release on bail unless a person is arrested and, therefore, it is only on arrest that the order granting anticipatory bail becomes operative.

Here is one important point to be kept in mind with regard to anticipatory bail:

The filing of First Information Report (FIR) is not a condition precedent to the exercise of power under Section 438. The imminence of a likely arrest   founded on a reasonable belief can be shown to exist even if an FIR is not yet filed.

Here is the coverage from The Hindu

The Supreme Court of India explains the meaning of Anticipatory Bail and lays the conditions for granting it. Here are the 9 guidelines as laid down by a constitution bench, which the  Courts are required to keep in mind while dealing with an application  for grant of anticipatory bail:

i)    Though the power conferred under Section 438 of  the Code can be described as of an extraordinary 

character, but this does not justify the conclusion that the power must be exercised in exceptional  cases only because it is of an extraordinary  character. Nonetheless, the discretion under the Section has to be exercised with due care and circumspection depending on circumstances  justifying its exercise.

ii)   Before power under sub-section (1) of Section 438  of the Code is exercised, the Court must be satisfied that the applicant invoking the provision  has reason to believe that he is likely to be arrested  for a non-bailable offence and that belief must be  founded on reasonable grounds. Mere “fear” is not  belief, for which reason, it is not enough for the  applicant to show that he has some sort of 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. 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.

iii)  The observations made in Balchand Jain’s case  (supra), regarding the nature of the power conferred  by Section 438 and regarding the question whether the conditions mentioned in Section 437 should be  read into Section 438 cannot be treated as conclusive on the point. There is no warrant for  reading into Section 438, the conditions subject to  which bail can be granted under Section 437(1) of  the Code and therefore, anticipatory bail cannot be  refused in respect of offences like criminal breach of  trust for the mere reason that the punishment provided for is imprisonment for life. Circumstances  may broadly justify the grant of bail in such cases  too, though of course, the Court is free to refuse anticipatory bail in any case if there is material  before it justifying such refusal.

iv)   No blanket order of bail should be passed and the  Court which grants anticipatory bail must take care  to specify the offence or the offences in respect of  which alone the order will be effective. While  granting relief under Section 438(1) of the Code,  appropriate conditions can be imposed under Section 438(2) so as to ensure an uninterrupted  investigation. One such condition 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 recovery.  Otherwise, such an order can become a charter of lawlessness and a weapon to stifle prompt investigation into offences which could not possibly be predicated when the order was passed.

v)    The filing of First Information Report (FIR) is not a condition precedent to the exercise of power under Section 438. The imminence of a likely arrest  founded on a reasonable belief can be shown to exist even if an FIR is not yet filed.

vi)   An anticipatory bail can be granted even after an FIR is filed so long as the applicant has not been arrested.

vii)  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.

viii) An interim bail order can be passed under Section 438 of the Code without notice to the Public Prosecutor but notice should be issued to the Public Prosecutor or to the Government advocate forthwith and the question of bail should be re-examined in the light of respective contentions of the parties.  The ad-interim order too must conform to the requirements of the Section and suitable conditions    should be imposed on the applicant even at that stage.

ix)   Though it is not necessary that the operation of an order passed under Section 438(1) of the Code be limited in point of time but the Court may, if there are reasons for doing so, limit the operation of the order to a short period until after the filing of FIR in respect of the matter covered by the order. The applicant may, in such cases, be directed to obtain an order of bail under Section 437 or 439 of the Code within a reasonable short period after the filing of the FIR.

Here is the judgment:

SAVITRI AGARWAL & ORS. -- APPELLANT (S)

VERSUS

STATE OF MAHARASHTRA & ANR. -- RESPONDENT (S)

JUDGMENT: D.K. JAIN, J.

Leave granted.

The appellants herein are the mother-in-law, father- in-law, husband and the younger brother of the father-in-law of the deceased- Laxmi. They are accused of having committed offences punishable under Sections 498A, 304-B read with Section 34 of the Indian Penal Code, 1860 (for short `the IPC') and Sections 3 and 4 of the Dowry Prohibition Act, 1961.

Material facts, leading to the filing of these appeals, are as follows: The deceased-Laxmi got married to appellant No.3 on 26th January, 2006. On 13th October, 2006, they were blessed with a baby boy. On 6th December, 2007 at about 4.30 p.m., appellant No.2 (father-in-law) is stated to have heard the cries of Laxmi and when he rushed to the second floor of the house, he saw her burning. He tried to douse the fire. Laxmi told him that her son was lying in the bathroom. He rushed to the bathroom and found that the child also had burns. Laxmi and her child were removed to the hospital. At about 6.40 p.m., her statement was recorded by the Executive Magistrate wherein she stated that she and her son caught fire when she was pouring kerosene oil in the lamp which accidentally fell down; the oil got spilled over and both of them got burnt. At about 10.55 p.m., the minor child expired. On receiving the intimation, parents of Laxmi reached the hospital at about 11.30 p.m. the same night. On 7th December, 2007, at about 1.40 p.m. another statement of Laxmi was recorded by the Executive Magistrate wherein again she reiterated that she had got burnt accidentally.

On 8th December, 2007, father of Laxmi lodged a complaint with Police against the appellants, inter alia, alleging that after the marriage of his daughter on 26th January, 2006, the appellants were torturing her for not meeting dowry demand of Rs.2 lakhs and earlier on 15th July, 2006, due to torture she had left the matrimonial home, intending to commit suicide but due to intervention of the relatives, she returned back. On the said complaint, the police registered an FIR against the appellants for offences under Section 498A read with Section 34, IPC and Sections 3 and 4 of the Dowry Prohibition Act, 1961.

On 6th December, 2007 the appellants applied for grant of anticipatory bail before the Sessions Judge, Amravati, who, vide order dated 10th December, 2007, initially granted interim protection to them from arrest till the next date of hearing i.e. 17th December, 2007. On 16th December, 2007, Laxmi expired and offence under Section 304-B IPC came to be added against the appellants. On 18th December, 2007, after hearing both sides and upon taking into consideration the said two dying declarations made by the deceased - Laxmi, statements of the complainant and witnesses and after perusing the case diary, the learned Sessions Judge confirmed the anticipatory bail granted to the appellants.

Aggrieved, the State of Maharashtra and the complainant filed petitions before the High Court for cancellation of anticipatory bail granted to the appellants. As noted earlier, by the impugned order, the High Court has cancelled the anticipatory bail granted to the appellants, on the ground that the Sessions Judge had failed to apply his mind to certain vital circumstances viz. - absence of mention of lantern and match stick in the panchnama; necessity of lantern and its lighting at 4 p.m. in the afternoon when the house was equipped with an inverter; the daughter-in-law doing such risky work with one year old child, particularly when elders in the family were present in the house and had everything been well in the house, there was no occasion for the parents of the deceased to implicate her in-laws. Inter alia, observing that the evidence, which directly involved the appellants, had been ignored, rendering the order passed by the Sessions Judge perverse, as noted above, the High Court has set aside the said order. The High Court has also noted that the offences complained of, being of serious nature, there was no ground to grant anticipatory bail to the appellants. Being aggrieved, the appellants are before us in these appeals.

The appellants contended that the High Court has failed to appreciate the factual background of the case, particularly the fact that in both the dying declarations recorded by the Executive Magistrate, the deceased had not levelled any allegation against the appellants for demanding any dowry or for torturing her for any other purpose. It was strenuously urged that the second dying declaration recorded on 7th December, 2007 at about 1.40 p.m. was in the presence and perhaps at the instance of the father of the deceased, who admittedly had arrived in the hospital on 6th December, 2007 at 11.30 p.m., yet the deceased did not level any allegation against the appellants. Learned counsel argued that the anticipatory bail having been granted by the Sessions Judge upon consideration of the relevant material placed before him by the prosecution, viz. the dying declarations, the statements recorded by the investigating officer and the case diary, in the absence of any complaint by the Investigating Officer that the appellants were not cooperating in the investigations after the grant of interim protection on 10th December, 2007, or that they had misused the anticipatory bail granted to them, there was no other overwhelming circumstance before the High Court, warranting interference with the judicial discretion exercised by the Sessions Judge and cancellation of bail.

Section 438 of the Code confers on the High Court and the Court of Session, the power to grant `anticipatory bail' if the applicant has `reason to believe' that he may be arrested on accusation of having committed a non-bailable offence. The expression `anticipatory bail' has not been defined in the Code. But as observed in Balchand Jain Vs. State of M.P., `anticipatory bail' means `bail in anticipation of arrest'. 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. When a competent court grants `anticipatory bail', it makes an order that in the event of arrest, a person shall be released on bail. There is no question of release on bail unless a person is arrested and, therefore, it is only on arrest that the order granting anticipatory bail becomes operative. The Court went on to observe that the power of granting `anticipatory bail' is somewhat extraordinary in character and it is only in `exceptional cases' where it appears that a person might be falsely implicated, or a frivolous case might be launched against him, or "there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail" that such power may be exercised. The power being rather unusual in nature, it is entrusted only to the higher echelons of judicial service, i.e. a Court of Session and the High Court. Thus, the ambit of power conferred by Section 438 of the Code was held to be limited.

Keeping in view the reports of the Law Commission, Section 438 was inserted in the Code. Sub-section (1) of Section 438 enacts that 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 to the Court of Session for a direction that in the event of his arrest he shall be released on bail, and the Court may, if it thinks fit, direct that in the event of such arrest he shall be released on bail. Sub-section (2) empowers the High Court or the Court of Session to impose conditions enumerated therein. Sub- section (3) states that if such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, he shall be released on bail.

In Gurbaksh Singh Sibbia (supra), the Constitution Bench was called upon to consider correctness or otherwise of principles laid down by the Full Bench of High Court of Punjab & Haryana in Gurbaksh Singh Sibbia Vs. State of Punjab. The Full Bench of the High Court summarized the law relating to anticipatory bail as reflected in Section 438 of the Code and laid down eight principles which were to be kept in view while exercising discretionary power to grant anticipatory bail.

The Court felt that wide discretionary power conferred by the Legislature on the higher echelons in the criminal justice delivery system cannot be put in the form of straight-jacket rules for universal application as the question whether to grant bail or not depends for its answer upon a variety of circumstances, the cumulative effect of which must enter into the judicial verdict. A circumstance which, in a given case, turns out to be conclusive, may or may not have any significance in another case. While cautioning against imposition of unnecessary restrictions on the scope of the Section, because, in its opinion, over generous 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:

i) Though the power conferred under Section 438 of the Code can be described as of an extraordinary character, but this does not justify the conclusion that the power must be exercised in exceptional cases only because it is of an extraordinary character. Nonetheless, the discretion under the Section has to be exercised with due care and circumspection depending on circumstances justifying its exercise.

ii) Before power under sub-section (1) of Section 438 of the Code is exercised, the Court must be satisfied that the applicant invoking the provision has reason to believe that he is likely to be arrested for a non-bailable offence and that belief must be founded on reasonable grounds. Mere "fear" is not belief, for which reason, it is not enough for the applicant to show that he has some sort of 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. 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.

iii) The observations made in Balchand Jain's case (supra), regarding the nature of the power conferred by Section 438 and regarding the question whether the conditions mentioned in Section 437 should be read into Section 438 cannot be treated as conclusive on the point. There is no warrant for reading into Section 438, the conditions subject to which bail can be granted under Section 437(1) of the Code and therefore, anticipatory bail cannot be refused in respect of offences like criminal breach of trust for the mere reason that the punishment provided for is imprisonment for life. Circumstances may broadly justify the grant of bail in such cases too, though of course, the Court is free to refuse anticipatory bail in any case if there is material before it justifying such refusal.

iv) No blanket order of bail should be passed and the Court which grants anticipatory bail must take care to specify the offence or the offences in respect of which alone the order will be effective. While granting relief under Section 438(1) of the Code, appropriate conditions can be imposed under Section 438(2) so as to ensure an uninterrupted investigation. One such condition 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 recovery. Otherwise, such an order can become a charter of lawlessness and a weapon to stifle prompt investigation into offences which could not possibly be predicated when the order was passed.

v) The filing of First Information Report (FIR) is not a condition precedent to the exercise of power under Section 438. The imminence of a likely arrest 1 founded on a reasonable belief can be shown to exist even if an FIR is not yet filed.

vi) An anticipatory bail can be granted even after an FIR is filed so long as the applicant has not been arrested.

vii) 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.

viii) An interim bail order can be passed under Section 438 of the Code without notice to the Public Prosecutor but notice should be issued to the Public Prosecutor or to the Government advocate forthwith and the question of bail should be re-examined in the light of respective contentions of the parties. The ad-interim order too must conform to the requirements of the Section and suitable conditions should be imposed on the applicant even at that stage.

ix) Though it is not necessary that the operation of an order passed under Section 438(1) of the Code be limited in point of time but the Court may, if there are reasons for doing so, limit the operation of the order to a short period until after the filing of FIR in respect of the matter covered by the order. The applicant may, in such cases, be directed to obtain an order of bail under Section 437 or 439 of the Code within a reasonable short period after the filing of the FIR.

At this juncture, it would be appropriate to note that the view expressed by this Court in Adri Dharan Das Vs. State of W.B. to the effect that while dealing with an application under Section 438 of the Code, the Court cannot pass an interim order restraining arrest as it will amount to interference in the investigation, does not appear to be in consonance with the opinion of the Constitution Bench in Sibbia's case (supra). Similarly, the observation that power under Section 438 is to be exercised only in exceptional cases seems to be based on the decision in Balchand's case (supra), which has not been fully approved by the Constitution Bench. On this aspect, the Constitution Bench stated thus:

"The observations made in Balchand Jain regarding the nature of the power conferred by Section 438 and regarding the question whether the conditions mentioned in Section 437 should be read into Section 438 cannot therefore be treated as concluding the points which arise directly for our consideration. We agree, with respect, that the power conferred by Section 438 is of an extraordinary character in the sense indicated above, namely, that it is not ordinarily resorted to like the power conferred by Sections 437 and 439. We also agree that the power to grant anticipatory bail should be exercised with due care and circumspection but beyond that, it is not possible to agree with the observations made in Balchand Jain in an altogether different context on an altogether different point". (Emphasis Supplied)

It would also be of some significance to mention that Section 438 has been amended by the Code of Criminal Procedure (Amendment) Act, 2005. The amended Section is more or less in line with the parameters laid down in Sibbia's case (supra). However, the amended provision has not yet been brought into force.

Having considered the case in hand on the touchstone of the aforementioned parameters, we are of the opinion that the High Court has committed a serious error in reversing the order passed by the Additional Sessions Judge, Amravati granting anticipatory bail to the appellants. The learned Sessions Judge passed the order after due consideration of the facts and circumstances of the case, in particular, the two dying declarations, one recorded in the presence of the parents of the deceased and the statements of the members of the Women Cell who had dealt with the case when on 15th July, 2006, the deceased had left the house with intention to commit suicide and therefore, it cannot be said that the judicial discretion exercised in granting anticipatory bail was perverse or erroneous, warranting interference by the High Court. The order passed by the Sessions Judge was supported by reasons to the extent required for exercise of judicial discretion in the matter of grant of bail. It may be true that some of the circumstances, noticed by the High Court in the impugned order, viz., no reference to lantern in the spot panchnama or the necessity of cleaning the lantern at 4 p.m. and/or availability of an inverter in the house etc., could have persuaded the Sessions Judge to take a different view but it cannot be said that the factors which weighed with the Sessions Judge in granting bail were irrelevant to the issue before him, rendering the order as perverse. Moreover, merely because the High Court had a different view on same set of material, which had been taken into consideration by the Sessions Judge, in our view, was not a valid ground to label the order passed by the Sessions Judge as perverse.

It also appears to us that the High Court has overlooked the distinction of factors relevant for rejecting bail in a non-bailable case in the first instance and the cancellation of bail already granted. In Dolat Ram & Ors. Vs. State of Haryana, while dealing with a similar situation where the High Court had cancelled the anticipatory bail granted by the Sessions Judge in a dowry death case, this Court had observed that rejection of bail in a non- bailable case at the initial stage and the cancellation of bail had to be considered or dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of bail already granted, which, in our opinion, were missing in the instant case. Nothing was brought to our notice from which it could be inferred that the appellants have not co-operated in the investigations or have, in any manner, abused the concession of bail granted to them. As a matter of fact, Mr. Naphade, learned senior counsel representing the State, stated that after grant of anticipatory bail to the appellants, no investigation in the case has been conducted.

For the foregoing reasons, in our judgment, the impugned order setting aside the anticipatory bail granted to the appellants by the learned Additional Sessions Judge, cannot be sustained. Accordingly, the appeals are allowed; impugned order is set aside and the order dated 18th December, 2007 passed by the Additional Sessions Judge confirming the ad-interim anticipatory bail to the appellants, is restored. It goes without saying that nothing said by the High Court or by us hereinabove shall be construed as expression of any opinion on the merits of the case.

Both the appeals stand disposed of, accordingly.

..................................J. (D.K. JAIN)

..................................J. (R.M. LODHA)

NEW DELHI;

JULY 10, 2009.

BALCHAND JAIN Vs. STATE OF MADHYA PRADESH

Coram: BHAGWATI, P.N.

05/11/1976

, , , ,

Subject

Defence and Internal Security of India Rules,  1971--r. 184--If supersedes S. 438. Cr. P.C. 1973.

Head Notes

                    Section  438  of the Code of  Criminal  Procedure, 1973 provides that 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. Rule 184 of the Rules made under Defence and Internal Security of India  Act, 1971 enacts that notwithstanding  anything contained in the Code of Criminal Procedure, 1898, no  person accused or  convicted of a contravention of  the  Rules  or orders made thereunder shall, if in custody, be released on bail or on his own bond unless (a) the prosecution has been given  an  opportunity to oppose the  application  for such release and (b) where the prosecution opposes the  application  and the contravention is of any such provision of the Rules or orders made thereunder as the Central Government or the State Government may, by notified order specify in this behalf, the  Court is satisfied that there  are  reasonable grounds for believing that he is not guilty of such  contravention.

                    A  Food Inspector raided the shop of the appellant, who was  a merchant dealing in kiryana goods and  kerosene  oil etc.,  and  seized his account books. Apprehending  that  he might  be arrested on a charge of non-bailable offence  for contravention of the provisions of the Defence and  Internal

Security  of  India  Act and the Rules, the  appellant  approached  the Sessions Judge for an anticipatory bail  under s.  438 of the Code of Criminal Procedure, 1973.   The Sessions  Judge rejected the application. Dismissing  his appeal, the High Court held that the express provisions of  r. 184 of the Rules superseded s. 438 of the Code in so far  as offences set out in r. 184 were concerned.

Allowing  the  appeal  and remanding the case  to  the High Court:

                HELD: (P. N. Bhagwati and A.C. Gupta,JJ.)

                    Section 438 and r. 184 operate at different stages, one prior  to arrest.and the other after arrest and there is  no overlapping between these two provisions. Rule 184 does not stand  in  the way of a Court of Sessions or  a High  Court granting anticipatory bail under s. 438.  [57G]

                    1.        The term 'anticipatory bail' is a misnomer.  It is not  as if the bail is presently granted by  the  court  in anticipation of arrest. When the court grants anticipatory bail it makes an order that in the event of arrest a  person shall  be  released on bail. This somewhat  extraordinary power is exercised only in exceptional cases and is entrusted to the higher echelons of the judicial service namely the court of Sessions and the High Court. [55H]

                    2. Rule 184 postulates the existence of power in the court under the Code and seeks to place a curb on its  exercise  by  providing that a person accused  or  convicted  of contravention of any rule or order, if in custody, shall not be  released on bail unless the conditions mentioned in the rule  are satisfied.   Rule 184 does not lay down a self-contained code for grant of bail. 1t cannot be construed as displacing  altogether the provisions of the Code in regard to bail.  The provisions  of the Code must be read alongwith r.  184  and full  effect must be given to them except in so far as they are  by reason of the non-obstante clause overridden  by  r. 184.  [57B-C]

                    An application under s. 438 is an application on  an apprehension of arrest. On such an application, the  direction that may be given under s. 438 is that in the event  of his  arrest the applicant shall be released on bail.

                 Section 438 of the Code has not been repealed by r. 184 of  the Rules, but both have to be read harmoniously. Rule 184  is only supplemental to 8. 438 and contains  guidelines which have to be followed by the Court in passing orders for anticipatory  bail in relation to cases covered by  r.184. [70A]

                    1.        (a)  Section  438 of the Cede  is  an  extraordinary remedy and  should be resorted to only in special cases. [70C]

                              (b) Section 438 applies only to non-bailable  offences. Anticipatory   bail being an extraordinary remedy  available in  special  cases,  this power has been  conferred  on  the higher echelons of judicial service, namely, the  Court  of Sessions  or the High Court.  What the section contemplates is  not anticipatory bail but merely an order  releasing  an accused on bail in the event of his arrest. There can be  no question  of  bail  unless a person is under  detention  or custody. The object of s. 438 is that the moment a person is arrested,  if  he  had already obtained an  order  from the Sessions  Judge  or  the High Court, he  would be  released immediately  without having to undergo the rigours of jail even for a few days.  [63B-D]

                    2. (a) While interpreting statutes, the Court must infer repeal                of a former statute by the latter only if it  causes inconvenience or where it is couched in negative terms. The legislature does not intend to keep contradictory enactments on the statute book and, therefore, a construction should be accepted which offers an escape from it.  [66A-C]  Aswini  Kumar Ghosh and Anr. v. Arabinda Bose  and Anr. [1953] S.C.R. 1 referred to.

                    2. (b) If the intention of r. 184 were to override the provisions  of s 438, then the Legislature should  have  expressly stated that the provisions of s. 438 shall not apply to offences contemplated by r. 184.  Therefore, the Legislature  in  its wisdom left it to the Court to bring  about  a harmonious construction of the two statutes so that the two may work and stand together.  [65F-G]

 Northern  India  Cateres Pvt. Ltd. & Anr.  v.  State  of Punjab and Anr. [1967] 3 S.C.R. 399 followed.

                    3. (a) Section 438 does not contain unguided or  uncanalised power to pass an order for anticipatory bail; but such an order being of an exceptional type can only be passed if, apart  from the conditions mentioned in s. 437. there  is  a special case for passing the order.  The words 'for a direction  under this section' and 'Court may, if it thinks fit, direct' clearly show that the Court has to be guided  by  a large number of considerations, including those mentioned in s.  437. When a Court is dealing with offences contemplated by  r. 184 it is obvious that though the offences  are not punishable  with  death or imprisonment for life  so  as  to attract the provisions of s. 437, the conditions laid down by  r. 184 would have to be complied with before  an  order under s. 438 could be passed. [67A-B]  In re V. Bhuvaraha Iyengar, A.I.R. [1942] Mad. 221, 223, In  re Surajlal Harilal Majumdar & others, A.I.R. 1943 Bom 82,  and Saligram Singh & Ors. v. Emperor, AIR 1945 Pat.  69 distinguished.

                    (b) The scope of r. 184. is wider than that of  s.  438 inasmuch  as  while s. 438 can be invoked only in  cases  of non-bailable offences and not in cases of bailable offences, r. 184 is applied not only to non-bailable offences but also to  bailable  offences and, therefore, the  conditions mentioned in r. 184, would have to be impliedly imported into s.  436 which deals with orders for bail regarding  bailable offences. [69D]

GURBAKSH SINGH SIBBIA ETC. Vs. STATE OF PUNJAB

Coram: CHANDRACHUD, Y.V. (CJ), BHAGWATI, P.N., UNTWALIA, N.L., PATHAK, R.S., REDDY, O. CHINNAPPA (J)

09/04/1980

1980 AIR 1632, 1980( 3  )SCR 383, 1980( 2  )SCC 565, ,

Subject

     Bail-Anticipatory Bail-Section  438 of  the  Code  of Criminal Procedure  Code, 1973       (Act 2    of 1974),  Scope of Judicial   balancing of personal liberty and the investigational powers of the Police, explained.

Head Notes

     The appellant  herein, Sri Gurbaksh Singh Sibbia was a Minister of Irrigation and Power in the Congress Ministry of the Government of Punjab.  Grave allegations  of  political corruption  were  made against   him and others  whereupon applications were  filed in  the High  Court of Punjab and Haryana under  section 438  of the  Criminal Procedure Code, praying that  the appellants  be directed  to be released on bail, in the event of their arrest on the aforesaid charges.

Considering the                importance of the matter, a learned single Judge referred the applications  to a Full Bench, which by its judgment dated September, 13, 1977 dismissed them, after summarising,  what   according to  it is  the true  legal position, of  s. 438 of the Code of Criminal Procedure, 1973 (Act 2 of 1974) thus:

                  (1)          The  power  under  Section  438,  Criminal Procedure  Code, is  of  an  extra-ordinary       character and  must be exercised sparingly in exceptional cases only.

                  (2)        Neither Section                438 nor any other provision of the  Code authorizes the grant of blanket anticipatory  bail for offences   not yet committed or  with regard  to accusations not so far levelled.

                  (3)        The said power is not unguided or uncanalised but  all the  limitations  imposed  in the        preceding Section  437, are  implicit therein and must be read into Section 438.

                  (4)        In addition  to the limitations mentioned Section 437,  the petitioner  must make out special case for the exercise of the power to grant anticipatory bail.

                  (5)  Where a legitimate case for the remand of the offender to  the police custody under Section 167(2) can  be made  out by the investigating agency  or   a  reasonable  claim  to  secure incriminating   material  from information  likely to be received from the offender under Section 27  of the  Evidence Act can be made out, the power under  Section 438 should not be exercised.

                  (6)        The discretion   under Section  438 cannot be  exercised with  regard to offences punishable  with death  or imprisonment  for life  unless the Court  at that  very stage  is  satisfied

 that such  a charge  appears to  be false  or  groundless.

                  (7)        The larger  interest of the public and State  demand that  in serious cases like  economic  offences involving  blatant corruption at the higher rungs  of the  executive and political power, the  discretion under  Section 438  of the Code should not be exercised; and

                  (8)  Mere general allegations of mala fides in the  petition are  inadequate. The  court must  be satisfied on  materials before  it  that the allegations of mala fides are substantial and the  accusation appears  to  be  false and groundless.

The argument  that the appellants were men of substance and position who  were hardly  likely to  abscond and  would  be prepared willingly  to face  trial was  rejected by the Full Bench with  the observation  that  to accord differential treatment to  the appellants on account of their status will amount to negation of the concept of equality before the law and that  it could  hardly be  contended that  every man  of status, who  was intended  to be charged with serious crimes including the one under section 409 was punishable with life imprisonment, "was  entitled to  knock at  the door  of  the Court for anticipatory bail". The possession of high status, according to  the Full Bench, is  not only  an  irrelevant consideration for  granting anticipatory  bail, but  is,  if anything, an  aggravating circumstance. Hence the appeals by special leave.

     The appellants  contended: (a)  The power conferred by section 438  to grant  anticipatory bail  is "not limited to the contigencies"  summarised by  the High  Court;  (b)  The power to  grant anticipatory  bail ought  to be left to the discretion of  the Court  concerned, depending on the facts and circumstances  of each  particular case;  (c) Since the denial of  bail amounts  to deprivation of personal liberty; Courts should  lean against  the imposition  of             unnecessary restrictions on  the scope  of Section 438,  when  no such restrictions are  imposed by the legislature in the terms of that section (d) Section 438 is a procedural provision which is concerned  with the personal liberty of an individual who has not been convicted of the offence in respect of which he seeks bail  and who  must be  presumed to  be innocent.  The validity of that section must accordingly be examined by the test of fairness and which is implicit in Article 21. Imposition  of an unfair or unreasonable limitation would be  violative of  Article  21 irrespective of  whether it  is imposed by legislation or by judicial decision.  Allowing the appeals in part, the Court,

     HELD: 1. The society has a vital stake in both of these interests namely,  personal liberty  and the investigational power of the police.  The  Court's  task  is  how  best  to balance these  interests  while       determining  the  scope  of section 438 of the Code of Criminal Procedure, 1973. [393 C-D]

     2. The  High Court and the  Court of Session should be left to exercise their  jurisdiction under section 438 by a wise and careful use of their discretion which by  their      long  training and  experience,  they are ideally suited to do. The ends  of justice  will be better served by  trusting these  courts to  act objectively and in consonance with principles governing the grant of bail. [417 B-D]

     3. Section 438(1) of  the Code  lays down a condition  which has  to be  satisfied before  anticipatory bail can be granted. The  applicant must  show that he has  "reason  to believe" that he may be arrested for a non-bailable offence. The use of the expression "reason to believe" shows that the belief that the applicant may be so arrested must be founded on reasonable  grounds. Mere  'fear' is not  'belief',  for which reason it is not enough for the applicant to show that he has                some sort  of a vague apprehension that some one is going to  make an  accusation against  him, in pursuance of

which he may be arrested. The grounds on which the belief of the applicant  is based that he  may be arrested for a non-bailable offence,  must be  capable of being examined by the court objectively,  because it is then alone that the court can determine  whether the  applicant has  reason to believe

that he may be so  arrested. Section  438(1),  therefore, cannot                be  invoked  on the  basis  of  vague and  general  allegations, as  if to arm oneself  in perpetuity against a possible arrest.  Otherwise, the  number of applications for anticipatory bail  will be  as large,  as, at  any rate, the adult populace.  Anticipatory bail is a device to secure the individual's liberty;  it  is  neither a  passport  to the commission of  crimes nor a shield against any and all kinds of accusation, likely or unlikely. [417 E-H, 418 A]

     Secondly, if  an application  for anticipatory  bail is made to the High Court or the Court of Session it must apply its own mind to  the question and decide whether a case has been made  out for granting such relief. It cannot leave the question for  the decision of the Magistrate concerned under Section 437  of the  Code, as  and when  an occasion arises. Such a course will  defeat the very object of Section 438.

[418 A-B]

     Thirdly, the  filing of  a First  Information Report is not a condition precedent to the exercise of the power under Section 438. The imminence  of a likely arrest founded on a reasonable belief can be shown to exist even if an F.I.R. is not yet filed. [418 B-C]

     Fourthly, anticipatory  bail can  be granted even after an F.I.R.  is filed,  so long  as the applicant has not been arrested. [418 C]

     Fifthly,  the  provisions of  Section  438  cannot  be invoked after  the arrest  of  the  accused.  The  grant  of "anticipatory bail"  to an  accused  who  is  under  arrest involves a  contradiction in terms, in so far as the offence or offences  for which he is arrested, are concerned. After arrest, the  accused must  seek his remedy under Section 437 or Section  439 of  the Code,  if he wants to be released on bail in         respect of  the offence or offences for which he is arrested. [418 C-E]

     4. However,  a "blanket  order"  of  anticipatory bail should not  generally be  passed. This flows from  the very language of the section which requires the appellant to show that he has "reason  to believe" that he may be arrested. A belief can  be said to be founded on reasonable grounds only if there  is something tangible to  go by  on the  basis of which it  can be said that the applicant's apprehension that he may be arrested  is genuine.  That is  why, normally,  a direction should  not issue  under  Section  438(1)  to the effect that the  applicant shall  be  released  on bail "whenever arrested  for which ever offence whatsoever". That is what is meant by a 'blanket order' of anticipatory bail, an order  which serves as a blanket to cover or protect any and every  kind of  allegedly unlawful activity, in fact any eventuality, likely or unlikely regarding which, no concrete information  can possibly  be bad. The rationale  of  a direction  under   Section  438(1)  is the  belief  of the applicant founded  on reasonable  grounds  that he  may  be arrested for  a non-bailable  offence. It  is unrealistic to expect the  applicant to  draw up  his application  with the meticulousness of a pleading in a civil case and such is not requirement of the section.  But specific  events and facts must be disclosed by  the applicant  in order to enable the court to  judge of  the reasonableness of his             belief, the existence of  which is the sine  qua non of the exercise of power conferred by the section. [418 E-H, 419 A]

          A blanket order of anticipatory bail is bound to cause serious interference with both the right and the duty of the police in the matter of investigation because, regardless of what kind  of offence  is alleged  to have been committed by the applicant  and when,  an order of bail which comprehends allegedly unlawful  activity of any description whatsoever, will prevent the police from arresting the applicant even if the commits,  say, a  murder in the presence of the public. Such an order can  then become a charter of lawlessness and weapon to  stifle prompt  Investigation into  offences which could not  possibly be predicated when the order was passed. Therefore, the court which  grants anticipatory  bail must take care  to specify  the offence or offences in respect of which alone  the order will be  effective. The power should not be exercised in a vacuum. [419 C-E]

     5. An  order of bail can be passed under section 438(1) of the Code without  notice to the Public  Prosecutor. But notice should  issue to the public  prosecutor  or  the Government Advocate  forthwith and  the  question  of bail should be  re-examined in  the  light of  the  respective contentions of the parties.  The ad-interim  order too must conform to  the requirements  of the  section  and  suitable conditions should  be imposed  on the applicant even at that stage. [419 E-F]

     6. Equally the operation of  an order  passed  under section 438(1) need not  necessarily be limited in point of time. The  Court may,  if there are reasons  for doing so, limit the  operation of      the order  to a  short period until after the  filing of  an F.I.R.  in respect  of the  matter covered by  the order. The applicant  may in  such cases be directed to obtain an order of bail under Section 437 or 439  of theCode within  a reasonably  short  period  after  the filing of the F.I.R.  as aforesaid. But this need not be followed as an invariable rule. The  normal rule should be not to limit the operation of the order in relation to a period of time. [419 F-H]

     7. Bail  is  basically  release  from  restraint, more particularly release from the custody of the police. The act of arrest directly affects freedom of movement of the person arrested by  the police, and speaking generally, an order of bail gives  back to  the accused  that freedom on condition that he will appear to take his trial. Personal recognizance suretyship bonds  and such other modalities are the means by which an  assurance is secured from the accused that though he has been released on bail, he will present himself as the trial of  offence or offences of which he is charged and for which he was arrested. [397 E-G]

     The distinction  between an  ordinary order of bail and an order  of anticipatory bail is that whereas the former is granted after  arrest and  therefore means  release from the custody of the police, the latter is granted in anticipation of arrest  and is  therefore effective at the very moment of arrest. Police custody is  an  inevitable  concomitant  of arrest for  non-bailable offences.  An order of anticipatory bail constitutes,  so to  say, an  insurance against  police custody following  upon arrest for offence  or offences  in respect of which the order is issued. In other words, unlike a post-arrest  order of bail, it  is a  pre-arrest  legal process which  directs that if the person in whose favour it is issued  is  thereafter  arrested  on  the  accusation  in respect of  which the  direction  is  issued,  he  shall  be released on  bail. Section  46(1) of  the Code of  Criminal Procedure which deals with  how arrests  are  to  be  made, provides that  in making  the arrest  the police  officer or other person  making the  arrest "shall  actually  touch  or confine the  body of the person to be arrested, unless there be a  submission to  the  custody  by  word  or action".  A direction  under  section  438  is  intended  to confer conditional immunity  from this 'touch' or confinement. [397 G-H. 398 A-B]

    

     The legislature conferred a wide discretion on the High Court and  the Court  of Session  to grant anticipatory bail because  it  evidently felt,  firstly, that  it  would  be difficult  to   enumerate   the                 conditions   under   which anticipatory bail  should  or  should  not  be granted and secondly; because  the intention  was to  allow the  higher courts in  the echelon a somewhat free hand in the grant of relief in  the nature  of anticipatory bail. That  is why, departing from the terms  of Sections 437 and 439, Section 438(1) uses the language that the High Court or the Court of Session "may, if it thinks fit" direct that the applicant be released on  bail. Sub-section (2)  of Section  438  is  a further and  clearer manifestation  of the  same legislative intent to  confer  a  wide  discretionary  power  to  grant anticipatory bail.  It provides that the  High Court or the Court of Session, while issuing a direction for the grant of anticipatory bail,  "may include  such conditions  in such directions in the light of the facts of the particular case, as it  may think fit" including the conditions which are set out in clauses (i) to (iv) of sub-section (2). The proof of legislative intent  can best  be found in the language which the  legislature   uses.  Ambiguities can  undoubtedly  be resolved by resort to extraneous aids but words, as wide and explicit as  have been used in  Section 438,  must be given their full  effect, especially when to refuse to do so will result in  undue impairment of the freedom of the individual and the presumption of innocence. It has to be borne in mind that anticipatory  bail is  sought  when  there  is  a mere apprehension of arrest on the accusation that the applicant has committed  a non-bailable  offence. A person who has yet to lose his freedom  by being arrested asks for freedom in the event  of arrest.  That is the stage  at  which  it  is imperative to protect his freedom, in so far as one may, and to give full play to the presumption that he is innocent. In fact, the  stage at  which anticipatory       bail  is  generally sought brings  about its  striking  dissimilarity  with  the situation  in  which  a  person who  is  arrested  for  the commission of  a non-bailable offences asks for bail. In the latter situation,  adequate data  is available to the Court, or can be called  for by  it, in  the light of which it can grant or  refuse relief  and while granting it, modify it by the imposition of all or any of the conditions mentioned in Section 437. [404 A-G]

     10. The amplitude of judicial discretion which is given to the   High Court and the Court of Sessions, to impose such conditions as they may think fit while granting anticipatory bail, should  not be cut down, by a process of construction, by reading  into the  statute conditions which are not to be found therein like those evolved by the High Court. The High Court and  the Court  of Session to whom the application for anticipatory bail  is made  ought to  be left  free  in the exercise of  their judicial discretion to grant bail if they consider it  fit so  to do  on  the  particular  facts and circumstances of the case and on such conditions as the case may warrant.  Similarly, they  must be left free  to refuse bail if the  circumstances  of  the  case  so       warrant,  on considerations similar to those mentioned in Section 437 or which are  generally considered to be relevant under Section 439 of the Code. [405 B-D]

     Generalisations on matters which rest on discretion and the attempt  to discover  formulae of  universal application when facts  are bound  to differ from case to case frustrate the very  purpose of conferring discretion. No two cases are alike on  facts and  therefore, Courts have to be allowed a

Little free  play in the  joints if the  conferment  of discretionary power  is to  be meaningful.  There is no risk involved in  entrusting a  wide discretion  to the  Court of Session and  the High  Court in granting anticipatory bail because,  firstly  these  are higher  courts manned  by experienced persons,  secondly their order are not final but are open  to appellate or revisional scrutiny and above all because, discretion  has always to be exercised by  courts judicially and not according  to whim, caprice or fancy. On the other hand, there is a risk in foreclosing categories of cases in which anticipatory bail may be allowed because life throws up unforeseen possibilities and offers new challenges. Judicial  discretion has to be free enough to be able to  take these  possibilities in its stride and to meet these challenges. [405 D-G] Hyman and Anr. v. Rose, 1912 A.C. 623; referred to

     11. Judges  have to  decide cases as they  come before them, mindful  of the  need to               keep passions and prejudices out of their decisions.  And it  will be  strange  if,  by employing judicial artifices and techniques, this Court cuts down the  discretion so wisely conferred upon the Courts, by devising a  formula which  will confine the power  to grant anticipatory bail  within a strait-jacket. While laying down cast-iron rules in a matter like granting anticipatory bail, as the High Court has done, it is apt to be overlooked that even Judges can have but an imperfect awareness of the needs of new situations. Life is never static and every situation has to be assessed  in the  context of emerging concerns as and when  it arises.  Therefore, even  if this Court were to frame a  'Code for  the grant  of anticipatory bail', which really is  the business of the legislature, it can at best furnish broad  guidelines and cannot compel blind adherence. In which case to grant bail and in which to refuse it is, in the very nature of things, a matter of discretion. But apart from the  fact that  the question  is inherently  of a kind which calls for the use of discretion from case to case, the legislature has, in terms express, relegated the decision of that question  to the  discretion of the Court, by providing that it  may grant  bail "if it thinks fit". The concern the Courts generally  is to preserve their discretion  without meaning to  abuse it.  It  will be  strange  if  the  Court exhibits concern  to stultify  the discretion conferred upon the Courts by law. [406 D-H]

     Discretion, therefore,  ought to be permitted to remain in the domain of discretion, to be exercised objectively and open to                correction by the higher  courts.  The  safety  of discretionary power  lies  in  this  twin  protection  which provides a safeguard against its abuse. [407 F-G]

     12. It  is true that the functions of judiciary and the police are  in a sense complementary and not overlapping. An order of  anticipatory bail does not in any way, directly or indirectly,  take  away             from  the  police  their  right  to investigate into  charges made or to  be made against the person released   on  bail.  In  fact,  two  of  the  usual conditions incorporated in a direction issued under section 438(1) are  those recommended in Sub-section (2)(i) and (ii) which require  the applicant  to co-operate  with the police and to assure that  he shall  not tamper with the witnesses during and  after the investigation. While  granting relief under Section  438(1), appropriate conditions can be imposed under Section  438(2), so  as  to  ensure  an  uninterrupted investigation. One of such conditions can even be that in the event of the police making out  a case of a likely discovery under Section 27 of the Evidence  Act, the person released on  bail  shall  be liable to  be taken  in police custody for facilitating the discovery. Besides,  if and when the occasion arises, it may be possible  for the  prosecution to  claim the benefit  of Section 27  of the  Evidence Act in regard to a discovery of facts made  in pursuance of information supplied by a person released on bail. [409 D, 410 A-D] King Emperor v. Khwaja Nazir Ahmed, 71 I.A., 203, State of U.P.  v. Deoman  Upadhyaya, [1961]  1 S.C.R.  p. 14 @ 26; referred to.

     13. In Balchand Jain v. State of Madhya Pradesh, [1977] 2 SCR  52, this Court was considering whether the provisions of Section 438 relating to anticipatory bail stand overruled or repealed  by virtue of  Rule  184  of  the Defence and Internal Security  of India  Rules, 1971 or whether both the provisions can by rule of harmonious interpretion,  exist side by side. It  was in  that context that it was observed that "As  section 438  immediately follows Section 437 which is the main provision for bail  in respect of non-bailable offences, it  is manifest  that the conditions imposed by s. 437(1) are implicitly contained in Section 438 of the Code". These  observations regarding the  nature  of  the  power conferred by  section 438 and regarding the question whether the conditions mentioned in Section 437 should be read into section 438 cannot, therefore be treated as the ratio of the decision. [413 C-D, E]

     The power conferred by  section 438  is of  an "extra ordinary" character  only  in  the  sense  that it  is not ordinarily resorted  to like the power conferred by sections 437 and 439. [413 E-F] Bal Chand Jain v. State of  M.P., [1977] 2 S.C.R. 52, distinguished.

     14. Since denial of  bail amounts  to  deprivation  of personal  liberty,   the  Court should  lean against  the imposition of  unnecessary  restrictions  on  the  scope  of section 438,  especially when no such restrictions have been imposed by  the legislature  in the  terms of  that section. Section 438  is a  procedural provision which is  concerned with the personal liberty of the individual, who is entitled to the benefit of  the presumption of innocence since he is not, on the date  of his application for anticipatory bail, convicted of  the offence in respect of which he seeks bail.  An over-generous  infusion  of constraints  and  conditions which are  not to  be found  in Section  438 can  make  its provisions constitutionally  vulnerable since  the right  to personal freedom cannot be made to depend on compliance with unreasonable restrictions. [413 F-H, 414 A] Maneka Gandhi  v. Union  of India, [1978] 1 S.C.C. 248; applied.

     15. In  regard to anticipatory bail,  if the  proposed accusation appears  to stem  not from  motives of furthering the ends  of justice  but from         some ulterior  motive, the object being to injure and humiliate the applicant by having him arrested a direction for the release of the applicant on bail in the event of his arrest would generally, be made. On the  other  hand,  if  it  appears  likely  considering the

antecedents of the applicant, that taking advantage of the order of  anticipatory bail  he will flee from justice, such an order  would not  be made.  But  the converse  of  these propositions is not necessarily  true. That  is to  say  it cannot be  laid down as an inexorable rule that anticipatory bail  cannot  be  granted  unless  the proposed  accusation appears to be actuated by mala fides; and, equally,  that anticipatory  bail must  be granted  if there is  no fear that the applicant will abscond. There are several other  considerations, too numerous to enumerate the combined effect of which  must weigh  with the  court while granting or  rejecting anticipatory  bail. The               nature and seriousness of the proposed  charges, the  context  of the events likely  to lead to the making of  the charges,  a reasonable possibility of the applicant's presence not being secured at  the  trial,  a  reasonable  apprehension that  witnesses will be tampered with and "the larger interests of the public  or the  state" are some of the  considerations which the  court has  to keep  in  mind while deciding  an application for anticipatory bail. [415 G-H, 416 A-C] State v.  Captain Jagjit  Singh, [1962]  3 S.C.R. 622, followed.

Adri Dharan Das Vs. State of West Bengal

Coram: ARIJIT PASAYAT, S.H. KAPADIA

21/02/2005

2005 AIR 1057, 2005(2   )SCR188 , 2005(4   )SCC303 , 2005(2   )SCALE212 , 2005(2   )JT548

Subject

Code of Criminal Procedure, 1973 :

Sections 438-Protection under-Scope of-Complaint under S.406, 467, 468, 471 and 420 IPC-Prayer by accused for protection in terms of S.438-On facts, held: the prayer was rightly rejected by High Court.

Section 438-Application under-Held: Legality of proposed arrest cannot be gone into in such an application-Interim order restraining arrest, if passed while dealing with an application under S.438, will amount to interference in the investigation, which cannot be done under S.438.

Sections 438 and 439-Distinction between-Discussed.

Complaint was lodged alleging commission of various offences more particularly those under Sections 406, 467, 468, 471 and 420 IPC against the appellant and five others. Prayer was made to the Judicial Magistrate for taking action in terms of Section 156(3) CrPC who directed the officer-in-charge of the concerned Police Station to investigate after taking the petition of complaint as FIR and to submit report before the Sub-Divisional Judicial Magistrate (SDJM). The accused filed application under Section 438 CrPC before High Court alleging that they were victims of a conspiracy. High Court declined to accept the prayer made by appellant-accused to extend the protection available under Section 438 CrPC . Hence the present appeal.

Head Notes

Disposing of the appeal, the Court

HELD : 1. The facility which Section 438 of the Code gives is generally referred to as `anticipatory bail'. The distinction between an ordinary order of bail and an order under Section 438 of the Code is that whereas the former is granted after arrest, and therefore means release from custody of the Police, the latter is granted in anticipation of arrest and is therefore effective at the very moment of arrest. [193-F, H; 194-A] Gur Baksh Singh v. State of Punjab, [1980] 2 SCC 565, relied on. Balachand Jain v. State of Madhya Pradesh, AIR (1977) SC 366, referred to.

2. The power exercisable under Section 438 CrPC is somewhat extraordinary in character and it is only in exceptional cases where it appears that the person may be falsely implicated or where there are reasonable grounds for holding that a person accused of an offence is not likely to otherwise misuse his liberty then power is to be exercised under Section 438. The power being of important nature it is entrusted only to the higher echelons of judicial forums, i.e. the Court of Session or the High Court. It is the power exercisable in case of an anticipated accusation of non-bailable offence. The object which is sought to be achieved by Section 438 of the Code is that the moment a person is arrested, if he has already obtained an order from the Court of Session or High Court, he shall be released immediately on bail without being sent to jail. [194-D-F]

3.1. Sections 438 and 439 operate in different fields. It was held in Nirmal Jeet Kaur's case and Sunita Devi's case that for making an application under Section 439 the fundamental requirement is that the accused should be in custody. As observed in Salauddin's case the protection in terms of Section 438 is for a limited duration during which the regular Court has to be moved for bail. Obviously, such bail is bail in terms of Section 439 of the Code, mandating the applicant to be in custody. Otherwise, the distinction between orders under Sections 438 and 439 shall be rendered meaningless and redundant. [194-F; 197-A-B] Salauddin Abdulsamad Shaikh v. State of Maharashtra, AIR (1996) SC 1042 and Niranjan Singh and Anr. v. Prabhakar Rajaram Kharote and Ors., AIR (1980) SC 785, relied on.

K.L. Verma v. State and Anr., (1996) 7 SCALE 20; Nirmal Jeet Kaur v. State of M.P. and Anr., [2004] 7 SCC 558 and Sunita Devi v. State of Bihar and Anr., Criminal Appeal arising out of SLP (Crl.) No. 4601 of 2003 disposed of by Supreme Court on 6.12.2004, referred to.

3.2. If the protective umbrella of Section 438 is extended beyond what was laid down in Salauddin's case the result would be clear by-passing of what is mandated in Section 439 regarding custody. In other words, till the applicant avails remedies upto higher Courts, the requirements of Section 439 become dead letter. No part of a statute can be rendered redundant in that manner. [197-C-D]

4.1. Section 438 is a procedural provision which is concerned with the personal liberty of an individual who is entitled to plead innocence, since he is not on the date of application for exercise of power under Section 438 of the Code convicted for the offence in respect of which he seeks bail. The applicant must show that he has `reason to believe' that he may be arrested in a non-bailable offence. Use of the expression `reason to believe' shows that the applicant may be 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 vague apprehension that someone is going to make an accusation against him in pursuance of which he may be arrested. Grounds on which the belief on the applicant is based that he may be arrested in non-bailable offence must be capable of being examined. [197-D-F]

4.2. The provisions cannot be invoked after arrest of the accused. A blanket order should not be generally passed. It flows from the very language of the section which requires the applicant to show that he has reason to believe that he may be arrested. Normally a direction should not issue to the effect that the applicant shall be released on bail "whenever arrested for whichever offence whatsoever". Such `blanket order' should not be passed as it would serve as a blanket to cover or protect any and every kind of allegedly unlawful activity. An order under Section 438 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. [197-G-H; 198-A-B]

5. An application under Section 438 of the Code can be moved only by a person who has not already been arrested. Once he is arrested, his remedy is to move the concerned Court either under Section 437 or Section 439 of the Code. In the very nature of the direction which the Court can issue under Section 438 of the Code, it is clear that the direction is to be issued only at the pre-arrest stage. The direction becomes operative only after arrest. The condition precedent for the operation of the direction issued is arrest of the accused. This being so, the irresistible inference is that while dealing with an application under Section 438 of the Code the Court cannot restrain arrest. [198-E-F]

6. The legality of the proposed arrest cannot be gone into in an application under Section 438 of the Code. The role of the investigator is well-defined and the jurisdictional scope of interference by the Court in the process of investigation is limited. The Court ordinarily will not interfere with the investigation of a crime or with the arrest of accused in a cognizable offence. An interim order restraining arrest, if passed while dealing with an application under Section 438 of the Code will amount to interference in the investigation, which cannot, at any rate, be done under Section 438 of the Code. [199-A-B]

7. While upholding the rejection of the prayer in terms of Section 438 of the Code, no opinion is expressed on merits of the case. When the bail application is moved in terms of Section 439 of the Code before the concerned Court the same shall be considered in its proper perspective in accordance with law. The SDJM would do well to dispose it of on the day it is filed. In case the prayer for bail is rejected and an application for bail is filed before the District and Sessions Judge, the said Court would do well to dispose of the application as early as practicable. If it is filed at a later date, the District and Sessions Judge would make an effort to dispose it of within three days of its filing. [199-C-E]

Shivaji @ Dadya Shankar Alhat .. Appellant Vs. The State of Maharashtra                           ..Respondent

September 5, 2008

(Dr. ARIJIT PASAYAT)  ( Dr. MUKUNDAKAM SHARMA)                                 

Dr. ARIJIT PASAYAT, J.

A large number of cases in recent times coming before this Court involving rape and murder of young girls, is a matter of concern. In the instant case victim was about nine years of age who was the victim of sexual assault and animal lust of the accused-appellant; she was not only raped but was murdered by the accused appellant.

The Learned Second Additional Judge, Pune tried the appellant for offences punishable under Sections 302 and Section 376 (2)(f) of the Indian Penal Code, 1860 and the trial court found the appellant guilty for the aforesaid offences and he was sentenced to death for the offence of murder and in respect of the other offence sentence to suffer rigorous imprisonment for ten years and to pay fine with default stipulation. Appellant questioned the judgment before the Bombay High Court which heard the same alongwith Confirmation Case which was referred to the High Court as required under Section 366 of the Code of Criminal Procedure, 1973 (in short the `Code'), for confirmation of death sentence. The appeals were heard together, the reference was accepted but the appeal filed by the accused was dismissed.

The Prosecution version

Shivaji-appellant (hereinafter referred to as the `accused') is an educated person was serving as teacher at Pune in the year 1986. He was staying with his mother and sister near the house of Hemlata (hereinafter referred to as the `deceased'), a tiny girl who had not seen ten summers in life. The accused is a married man and has three children. His wife and children were not residing with him. The accused was known to the deceased and her family. The deceased and her family used to sometime give him bread. The deceased was studying in 5th standard. She has two sisters (PW 8). Her mother (PW 2) was working as a maid. All of them were staying with their grandmother (PW 7). The father of the deceased was not staying with them on account of strained relationship between him and the mother of deceased. The incident in question occurred on 14th January, 2002. On that day there was festival of Makarsankranti. At about 11.30 a.m., the deceased and her sister had gone to the borewell to fetch water. The accused was sitting on the slab, where construction work was going on. The accused told the deceased that he would give her fuel wood from the hill. Thereafter they came to deceased's house. The deceased kept the pitcher in the house and she went alongwith the accused towards the hill. Thereafter the deceased did not return home. The mother came home at about 4.30 P.M. She was told that her daughter had gone with the accused and had not returned. They started searching for the deceased but could not find her. On the same day, the grandmother of the deceased gave a missing complaint to the police in which she stated that the deceased had left the house with the accused and had not come back. Search was going on to find out the deceased.  It appears that the mother of deceased got to know from one Sakinabai that dead body of her daughter was lying on hill. She also gave information to the police on 15th January, 2002 regarding missing of her daughter. In this complaint she also stated that the deceased had left the house alongwith the accused. After seeing the dead body of her daughter at Hospital, the mother reported the matter to the police. Her complaint came to be recorded in which she stated that her daughter had left with the accused on 14.1.2002. She specifically stated that she was convinced that, it is the accused who had raped her daughter and assaulted her on her abdomen with a sharp edged weapon, strangulated her with a rope and murdered her. On the basis of this FIR investigation started. The accused was not traceable. He could be arrested only on 16th January, 2002. He was found hiding in the sugarcane crop. After completion of the investigation the accused came to be charged as aforesaid. Since   the   accused abjured guilt trial was held. Seventeen witnesses were examined to further the prosecution version.

Prosecution examined (PW 2), the mother of the deceased and (PW 7), grandmother of the

deceased. (PW 8) the sister of the deceased, (PW 9) and (PW 6) were examined to establish the prosecution case that the accused and the deceased were last seen together on 14th January, 2002 at about 11.30 a.m. going towards Hill.      

The accused pleaded innocence and false implication. His case was that in fact at the relevant point of time he was not present in the village and has gone to his daughter's house, then to his sister's house.

                Learned trial court found the evidence cogent and found the accused guilty and imposed the sentence. The appeal before the High Court was dismissed and the reference made under Section 366 IPC was confirmed.

In support of the appeal learned counsel for the appellant submitted that the case at hand is based on circumstantial evidence and the circumstances do not warrant conclusion of guilt of the accused. Since the conviction was based on circumstantial evidence, no death sentence should have been awarded and in any event this is not a case where death sentence should have been imposed.

The deceased was thus a helpless poor girl of tender age. She had no protection of the father. She was, therefore, a vulnerable girl.

                When the mother of deceased came back, her mother told her that the deceased had gone to

bring fuel wood along with the accused. Since the deceased did not come back they started searching for her. The grandmother of the deceased gave a missing complaint to police on 14.1.2002.  

So far as the last seen aspect is concerned it is necessary to take note of two decisions of this court. In State of U.P. v. Satish [2005 (3) SCC 114] it was noted as follows:

            "22. The last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence toconclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs. 3 and 5, in addition to the evidence of PW-2."

In Ramreddy Rajeshkhanna Reddy v. State of A.P. [2006 (10) SCC 172] it was noted as follows:

          "27. The last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case the courts should look for some corroboration". (See also Bodh Raj v. State of J&K (2002(8) SCC 45).)"

A similar view was also taken in Jaswant Gir v. State of  Punjab [2005(12) SCC 438], Kusuma Ankama Rao v State of A.P. (2008(9) SCALE 652) and in Manivel & Ors. v. State of Tamil Nadu ( 2008(5) Supreme 577).

Before analyzing factual aspects it may be stated that for a crime to be proved it is not necessary that the crime must be seen to have been committed and must, in all circumstancesbe proved by direct ocular evidence by examining before the Court those persons who had seen its commission. The offence can be proved by circumstantial evidence also. The principal fact or factum probandum may be proved indirectly by means of certain inferences drawn from factum probans, that is, the evidentiary facts. To put   it   differently circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue that taken together they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed.

It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan AIR (1977 SC 1063); Eradu and Ors. v. State of Hyderabad (AIR 1956 SC 316); Earabhadrappa v. State of  Karnataka  (AIR 1983 SC 446); State of U.P. v. Sukhbasi and Ors. (AIR 1985 SC 1224); Balwinder Singh v. State of Punjab (AIR 1987 SC 350); Ashok Kumar Chatterjee v. State of M.P. (AIR 1989 SC 1890). The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab (AIR 1954 SC 621), it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.

We may also make a reference to a decision of this Court in C. Chenga Reddy and Ors. v. State of A.P. (1996) 10 SCC 193, wherein it has been observed thus:

           "In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent  with his innocence....".

In Padala Veera Reddy v. State of A.P. and Ors. (AIR 1990 SC 79), it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:

           "(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

           (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

           (3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and

           (4) the circumstantial evidence in order to sustain conviction must be complete and  incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."

In State of U.P. v. Ashok Kumar Srivastava, (1992 Crl.LJ 1104), it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted.

Sir   Alfred   Wills   in    his    admirable   book   "Wills' Circumstantial Evidence" (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases,whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon  any other   reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted".

A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra, (AIR 1984 SC 1622). Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are:

          (1) the circumstances from which the conclusion of guilt is to be drawn should be fully   established. The circumstances concerned must or should and not may be established;

          (2) the facts so established should be consistent only with the hypothesis of the guilt

          of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

          (3) the circumstances should be of a conclusive nature and tendency;

          (4) they should exclude every possible hypothesis except the one to be proved; and

           (5) there must be a chain of evidence so compete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

         In Damodar v. State of Karnataka [2000 SCC (Crl) 90] it was, inter alia, observed as follows:

           "From the evidence of PWs. 1,6,7 & 8 the prosection has satisfactorily established that the appellant was last seen with the deceased on 30.4.91. The appellant either in his Section 313 Cr.P.C. statement or by any other evidence has not established when and where he and the deceased parted company after being last seen."

Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence.The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. For instance a murder committed due to deep- seated mutual and personal rivalry may not call for penalty of death. But an organised crime or mass murders of innocent people would call for imposition of death sentence as deterrence.   It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc. This position was illuminatingly stated by this Court in Sevaka Perumal etc. v. State of Tamil Naidu (AIR 1991 SC 1463).

In Dhananjoy Chatterjee v. State of W.B. (1994 (2) SCC220), this Court has observed that shockingly large number of criminals go unpunished thereby increasingly, encouraging the criminals and in the ultimate making justice suffer by weakening the system's creditability. The   imposition of appropriate punishment is the manner in which the Court responds to the society's cry for justice against the criminal. Justice demands that Courts should impose punishment befitting the crime so that the Courts reflect public abhorrence of the crime. The Court must not only keep in view the rights of the criminal but also the rights of the victim of the crime and the society at large while considering the imposition of appropriate punishment.

Similar view has also been expressed in Ravji v. State of Rajasthan, (1996 (2) SCC 175). It has been held in the said case that it is the nature and gravity of the crime but not the criminal, which are germane for consideration of appropriate punishment in a criminal trial. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated.

These aspects have been elaborated in State of M.P. v. Munna Choubey [2005 (2) SCC 712].

In Machhi Singh v. State of Punjab [1983 (3) SCC 470] in para 38 the position was summed up as follows: (SCC p. 489)

"38. The following propositions emerge from Bachan Singh's case (supra):

               (i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.

                (ii) Before opting for the death penalty the circumstances of the `offender' also require to be taken into consideration along with   the   circumstances   of the `crime'.

               (iii) Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to  the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the     crime   and   all   the  relevant circumstances.

               (iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised."

               The position was again reiterated in Devender Pal Singh v. State of NCT of Delhi [2002 (5)SCC 234 ] : (SCC p. 271, para58)

          "58. From Bachan Singh 's case (supra) and Machhi Singh's case (supra) the principle culled out is that when the collective conscience of the community is so shocked, that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty, the same can be awarded. It was observed:   

    The community may entertain such sentiment in the following circumstances:

              (1) When the murder is committed in an extremely brutal, grotesque, diabolical, revolting, or dastardly manner so as to arouse intense and extreme indignation of the community.

             (2) When the murder is committed for a motive which evinces total depravity and     meanness; e.g. murder by hired assassin for money or reward; or cold-blooded murder for gains of a person vis-`-vis whom the murderer is in a dominating position or in a position of trust; or murder is committed in the course for betrayal of the motherland.     

            (3) When murder of a member of a Scheduled Caste or minority community, etc. is committed not for personal reasons but in circumstances which arouse social wrath; or in cases of `bride burning' or `dowry deaths' or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.

            (4) When the crime is enormous in proportion. For instance when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed.

            (5) When the victim of murder is an innocent child, or a helpless woman or old or infirm person or a person vis-`-vis whom the murderer is in a dominating position, or a public figure generally loved and respected by the community."

                The plea that in a case of circumstantial evidence death should not be awarded is without any logic. If the circumstantial evidence is found to be of unimpeachable character in establishing the guilt of the accused, that forms the foundation for conviction. That has nothing to do with the question of sentence as has been observed by this Court in various cases while awarding death sentence. The mitigating circumstances and the aggravating circumstances have to be balanced. In the balance sheet of such circumstances, the fact that the case rests on circumstantial evidence has no role to play. In fact in most of the cases where death sentence are awarded for rape and murder and the like, there is practically no scope for having an eye witness. They are not committed in the public view. But very nature of things in such cases, the available evidence is circumstantial evidence. If the said evidence has been found to be credible, cogent and trustworthy for the purpose of recording conviction, to treat that evidence as a mitigating circumstance, would amount to consideration of an irrelevant aspect. The plea of learned Amicus Curiae that the conviction is based on circumstantial evidence and, therefore, the death sentence should not be awarded is clearly unsustainable.

The case at hand falls in the rarest of rare category. The circumstances highlighted above, establish the depraved acts of the accused, and they call for only one sentence, that is death sentence.

Source:

http://www.hanumant.com/articles/RC_AnticipatoryBail.html