Anticipatory bail- Criminal Procedure Code, 1973—Sections 437 and 438Considerations for—Anticipation of foul play—The provision for grant of bail can be invoked to meet such contingency in addition to other grounds.
AIR 1980 SC 1632 : (1980) 3 SCR 383 : (1980) 2 SCC 565 : (1980) CriLJ SC 1125
(SUPREME COURT OF INDIA)
|Gurbaksh Singh Sibbia
|The State of Punjab
|Sarbajit Singh and another
|The State of Punjab
(Before : Y. V. Chandrachud, C.J.I., P. N. Bhagwati, N. L. Untwalia, R. S. Pathak And O. Chinnappa Reddy, JJ.)
Criminal Appeals Nos. 335 to 339, etc. of 1977 and 1, 15 to 17 etc. of 1978 and Spl. Leave Petn. (Criminal) Nos. 260, 272 to 274 etc. of 1978,
Decided on : 09-04-1980.
Criminal Procedure Code, 1973—Section 438—Reason to believe—Meaning of—Mere fear is no belief—The grounds forming belief must be capable of examination by court.
Precedent—Anticipatory bail—Decisions dealing with the grant of post arrest bail, are not relevant.
Criminal Procedure Code, 1973—Sections 437 and 438—Anticipatory bail—Status of accused—Effect of—No presumption that poor shall flee from justice.
Criminal Procedure Code, 1973—Sections 437 and 438—Anticipatory bail—Special case—Necessity to make out—Accused has to make out a prima facie case but it cannot be asked to make out a special case.
Criminal Procedure Code, 1973—Sections 437 and 438—Anticipatory bail—Considerations for—Discretion of Court—Exercise of—The considerations for grant of regular bail though cannot be read into the provision for anticipatory bail but High Court or Court of Session may impose conditions on such similar considerations.
Criminal Procedure Code, 1973—Sections 437 and 438—Anticipatory bail—Procedure—Notice to Public Prosecutor—Necessity of—Order granting bail without notice—Order must be re-examined after promptly issuing notice to Public Prosecutor.
Criminal Procedure Code, 1973—Sections 437 and 438—Anticipatory bail—Investigation—Likelihood of discovery of facts by accused—Grant of anticipatory bail does not affect investigation.
Criminal Procedure Code, 1973—Sections 437 and 438—Anticipatory bail—Considerations for—Likelihood of disappearance of accused—There is no presumption that accused will flee from justice—A person seeking anticipatory bail is entitled to bail on conditions to this effect.
Criminal Procedure Code, 1973—Sections 437 and 438—Anticipatory bail—Gravity of offence—Effect of refusal to grant bail in connection with economic offence—Refusal without looking into facts is not proper.
Criminal Procedure Code, 1973—Sections 437 and 438—Anticipatory bail—Nature of—Though power to grant anticipatory bail is extraordinary but it does not justify conclusion that it should be exercised in exceptional cases only.
Criminal Procedure Code, 1973—Sections 437 and 438—Anticipatory bail—Operation of order—Period of—Court may limit operation of order to a short period but normal rule is not to limit the operation of order.
Counsel for the Parties: [SEE BELOW]
Chandrachud, C, J—These appeals by Special Leave involve a question of great public importance bearing, at once, on personal liberty and the investigational powers of the police. The society has a vital stake in both of these interests, though their relative importance at any given time depends upon the complexion and restraints of political conditions. Our task in these appeals is how best to balance these interests while determining the scope of S. 438 of the Cr. P. C., 1973 (Act No. 2 of 1974).
2. Section 438 provides for the issuance of direction for the grant of bail to a person who apprehends arrest. It reads thus:
“488. (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.
(2) When the High Court or the Court of Session makes a direction under sub sec. (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including.
(i) a condition that the persons shall make himself available for interrogation by a police officer as and when required;
(ii) a condition that the person shall 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;
(iii) a condition that the person shall not leave India without the previous permission of the Court;
(iv) such other condition as may be imposed under sub-sec. (3) of S. 437, as if the bail were granted under that section.
(3) If such person is thereafter arrested without warrant by an officer in charge 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-sec. (1).”
3. Criminal Appeal No. 335 of 1975 which is the first of the many appeals before us, arises out of a judgment dated Sept. 13, 1977 of a Full Bench of the High Court of Punjab and Haryana.  The appellant therein, Shri 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 were filed in the High Court of Punjab and Haryana under S.438, 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 Sept. 13, 1977 dismissed them.
4. The Cr. P.C. 1898 did not contain any specific provision corresponding to the present S. 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 Cr. P.C. 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 Sept. 24, 1969 pointed out the necessity of introducing a provision in the Code enabling the High Court and the Court of Session to grant “anticipatory bail”.
It observed in para. 39.9 of its report (Vol. I):
“39.9. The suggestion for directing the release of a person on bail prior to his arrest (commonly known as “anticipatory bail”) was carefully considered by us. Though there is a conflict of judicial opinion about the power of a Court to grant anticipatory bail, the majority view is that there is no such power under the existing provisions of the Code. The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. In recent times, with the accentuation of political rivalry, this tendency is showing signs of steady increase. Apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail.
We recommend the acceptance of this suggestion. We are further of the view that this special power should be conferred only on the High Court and the Court of Session, and that the order should take effect at the time of arrest or thereafter.
In order to settle the details of this suggestion, the following draft of a new section is placed for consideration:
“497A. (1) When any person has a reasonable apprehension that he would be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section. That Court may, in its discretion, direct that in the event of his arrest, he shall be released on bail.
(2) A Magistrate taking cognizance of an offence against that person shall, while taking steps under S. 204 (1), either issue summons or a bailable warrant as indicated in the direction of the Court under sub-sec. (1).
(3) If any person in respect of whom such a direction is made is arrested without warrant by an officer-in-charge of a police station on an accusation of having committed that offence, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, such person shall be released on bail.”
We considered carefully the question of laying down in the statute certain conditions under which alone anticipatory bail could be granted. But we found that it may not be practicable to exhaustively enumerate 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, accepted by the Central Government which introduced cl. 447 in the Draft Bill of the Cr. P.C. 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 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.
(2) If such person is thereafter arrested without warrant by an officer-in-charge 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-sec. (1)”
6. The Law Commission, in para. 31 of its 48th Report (1972). made the following comments on the aforesaid Clause.
“31. The Bill introduces a provision for the grant of anticipatory bail. This is substantially in accordance with the recommendation made by the previous Commission. We agree that this would be a useful addition, though we must add that it is in very exceptional cases that such a power should be exercised.
We are further of the view that in order to ensure that the provision is not put to abuse at the instance of unscrupulous petitioners, the final order should be made only after notice to the Public Prosecutor. The initial order should only be an interim one. Further, the relevant section should make it clear that the direction can be issued only for reasons to be recorded, and if the court is satisfied that such a direction is necessary in the interests of justice.
It will also be convenient to provide that notice of the interim order as well as of the final orders will be given to the Superintendent of Police forthwith.”
Clause 447 of the Draft Bill of 1970 was enacted with certain modifications and became S.438 of the Cr.P.C. 1973 which we have extracted at the outset of this judgment.
7. The facility which S. 438 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. Any order of bail can, of course, be effective only from the time 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’. Thus, 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 recognisance, 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 at the trial of offence or offences of which he is charged and for which he was arrested. 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 he 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 threrafter arrested on the accusation in respect of which the direction is issued, he shall be released on bail. S. 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 S. 438 is intended to confer conditional immunity from this ‘touch’ or confinement.
8. No one can accuse the police of possessing a healing tough nor indeed does anyone have misgivings in regard to constraints consequent upon confinement in police custody. But, society has come to accept and acquiesce in all that follows upon a police arrest with a certain amount of sang-froid, in so far as the ordinary rule of criminal investigation is concerned. It is the normal day-to-day business of the police to investigate into charges brought before them and, broadly and generally, they have nothing to gain, not favours at any rate, by subjecting ordinary criminals to needless harassment. But the crimes, the criminals and even the complainants can occasionally possess extraordinary features. When the even flow of life becomes turbid, the police can be called upon to inquire into charges arising out of political antagonism . The powerful processes of criminal law can then be perverted for achieving extraneous ends. Attendant upon such investigations, when the police are not free agents within their sphere of duty is a great amount of inconvenience, harassment and humiliation. That can even take the form of the parading of a respectable person in hand-cuffs, apparently on way to a court of justice. The foul deed is done when an adversary, is exposed to social ridicule and obloquy, no matter when and whether a conviction is secured or is at all possible. It is in order to meet such situations, though not limited to these contingencies, that the power to grant anticipatory bail was introduced into the Code of 1973.
9. Are we right in saying that the power conferred by S. 438 to grant anticipatory bail is “not limited to these contingencies”? In fact that is one of the main points of controversy between the parties. Whereas it is argued by Shri M. C. Bhandare. Shri. O. P. Sharma and the other learned counsel who appear for the appellants that the power to grant anticipatory bail ought to be left to the discretion of the court concerned, depending on the facts and circumstances of each particular case, it is argued by the learned Additional Solicitor General on behalf of the State Government that the grant of anticipatory bail should at least be conditional upon the applicant showing that he is likely to be arrested for an ulterior motive, that is to say, that the proposed charge or charges are evidently baseless and are actuated by mala fides. It is argued that anticipatory bail is an extraordinary remedy and therefore. Whenever it appears that the proposed accusations are prima facie plausible, the applicant should be left to the ordinary remedy of applying for bail under S. 437 or S. 439, Criminal Procedure Code, after he is arrested.
10. Shri V. M. Tarkunde, appearing on behalf of some of the appellants, while supporting the contentions of the other appellants, said 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 S. 438, when no such restrictions are imposed by the legislature in the terms of that Section. The learned counsel added a new dimension to the argument by invoking Art. 21 of the Constitution. He urged that S. 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 therefore be presumed to be innocent. The validity of that section must accordingly be examined by the test of fairness and reasonableness which is implicit in Art. 21. If the legislature itself were to impose an unreasonable restriction on the grant of anticipatory bail, such a restriction could have been struck down as being violating of Art. 21. Therefore, while determining the scope of S. 438, the Court should not impose any unfair or unreasonable limitation on the individual’s right to obtain an order of anticipatory bail. Imposition of an unfair or unreasonable limitation, according to the learned counsel, would be violative of Art. 21. irrespective of whether it is imposed by legislation or by judicial decision.
11. The Full Bench of the Punjab and Haryana High Court rejected the appellant’s application for bail after summarising, what according to it is the true legal position, thus:
(1) The power under S. 438, Cr. P. C. is of an extraordinary character and must be exercised sparingly in exceptional cases only.
(2) Neither S. 438 nor any other provision of the Code authorises the grant of blanket anticipatory bail for offence 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 S. 437, are implicit therein and must be read into S. 438.
(4) In addition to the limitations mentioned in S. 437, the petitioner must make out a 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 S. 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 S. 438 should not be exercised.
(6) The discretion under S. 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 ad 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 S. 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.
It was urged before the Full Bench that the appellants were men of substance and position who were hardly likely to abscond and would be prepared willingly to face trial. This argument was rejected 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 S. 409 which 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.
12. We find ourselves unable to accept, in their totality, the submissions of the learned Additional Solicitor General or the constraints which the Full Bench of the High Court has engrafted on the power conferred by S. 438. Cl. (1) of Section 438 is couched in terms, broad and unqualified. By any known canon of construction, words of width and amplitude ought not generally to be cut down so as to read into the language of the statute restraints and conditions which the legislature itself did not think it proper or necessary to impose. This is especially true when the statutory provision which falls for consideration is designed to secure a valuable right like the right to secure a valuable right like the right to personal freedom and involves the application of a presumption as salutary and deep-grained in our Criminal Jurisprudence as the presumption of innocence. Though the right to apply for anticipatory bail was conferred for the first time by S.438, while enacting that provision the legislature was not writing on a clean slate in the sense of taking an unprecedented step, in so far saw the right to apply for bail is concerned. It had before it two cognate provisions of the Code:S. 437 which deals with the power of courts other than the Court of Session and the High Court of grant bail in non-bailable cases and S. 439 which deals with the “special powers” of the High Court and the Court and the Court of Session regarding bail. The whole of Session regarding bail. The whole of Section 437 is riddled and hedged in by restrictions on the power of certain courts to grant bail. That section reads thus:
437. “When bail may be taken in case of non-bailable offence – (1) When any person accused of or suspected of the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of a offence punishable with death or imprisonment for life.
Provided that the Court may direct that any person under the age of sixteen years or any woman or any sick or infirm person accused of such an offence be released on bail:
Provided further 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.
(2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial as the case may be, that there are not reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, the accused shall, pending such inquiry be released on bail. or, at the discretion of such officer or Court, on the execution by him or a bond without sureties for his appearance as hereinafter provided.
(3) When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chap. VI, Chap. XVI or Chap. XVII of the I.P.C. or abetment of, or conspiracy or attempt to commit, any such offence, is released on bail under sub-section(1), the Court may impose any condition which the Court considers necessary-
(a) in order to ensure that such person shall attend in accordance with the conditions of the bond executed under this Chapter, or
(b) in order to ensure that such person shall not commit an offence similar to the offence of which he is accused or of the commission of which he is suspected, or
(c) otherwise in the interests of justice.
(4) An officer or a Court releasing any person on bail under sub-sec. (1) or sub-section (2), shall record in writing his or its reasons for so doing.
(5) Any Court which has released a person on bail under sub-section (1) or sub-sec. (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody.
(6) If, in any case triable by a Magistrate the trial of a person accused of any non-bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs.
(7) If, at any time after the conclusion of the trial of a person accused of 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.” Section 439 (1) (a) incorporates the conditions mentioned in S. 437 (3) if the offence in respect of which the bail is sought is of the nature specified in that sub-section. Section 439 reads thus:
439. “Special powers of High Court or Court of Session regarding bail – (1) A High Court or Court of Session may direct –
(a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-sec. (3) of S. 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section;
(b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified:
Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice.
(2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody.”
The provisions of Ss. 437 and 439 furnished a convenient model for the legislature to copy while enaction S. 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 under which alone anticipatory bail could be granted but had come to the conclusion that the question of granting such bail should be left “to the discretion of the court” and ought not to be fettered by the statutory provision itself, since the discretion was being conferred upon superior courts which were expected to exercise it judicially. 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 Ss.437 and 439, S. 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 S. 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 Cls. (i) to (iv) of sub-sec. (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 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 imposing of all or any of the conditions mentioned in S. 437.
13. This is not to say that anticipatory bail, if granted, must be granted, must be granted without the imposition of any conditions. That will be plainly contrary to the very terms of S. 438. Though sub-sec. (1) of that section says that the Court “may, if it thinks fit” issue the necessary direction for bail, sub-sec. (2) confers on the Court the power to include such conditions in he direction as it may think fit in the light of the facts of the particular case, including the conditions mentioned in Cls. (i) to (iv) of that sub-section. 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 discretion which is given to the High Court and the Court of Session, to impose such conditions as they may think fit while granting anticipatory bail, should be cut down by reading into the statute conditions which are not to be found therein, like those evolved by the High Court or canvassed by the learned Additional Solicitor General. Our answer, clearly and emphatically, is in the negative. 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 S. 437 or which are generally considered to be relevant under S. 439 of the Code.
14. 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 orders are not final but are open to appellate or revisional scrutiny and above all because, discretion has always to be excised 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, Earl Loreburn L.C. said in Hyman v. Rose, 1912 AC 623.
“I desire in the first instance to point out that the discretion given by the section is very wide …….. Now it seems to me that when the Act is so express to provide a wide discretion ……… it is not advisable to lay down any rigid rules for guiding that discretion. I do not doubt that the rules enunciated by the Master of the Rolls in the present case are useful maxims in general, and that in general they reflect the point of view from which judges would regard an application for relief. But I think it ought to be distinctly understood that there may be cases in which any or all of them may be disregarded. If it were otherwise, the free discretion given by the statute would be fettered by limitations which have nowhere been enacted. It is one thing to decide what is the true meaning of the language contained in an Act of Parliament. It is quite a different thing to place conditions upon a free discretion entrusted by statute to the Court where the conditions are not based upon statutory enactment at all. It is not safe, I think, to say that the Court must and will always insist upon certain things when the Act does not require them, and the facts of some unforeseen case may make the Court wish it had kept a free hand.”
15. 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, we cut 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 we 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 of the courts generally is to preserve their discretion without meaning to abuse it. It will be strange if we exhibit concern to stultify the discretion conferred upon the Courts by law.
16. A close look at some of the rules in the eight-point code formulated by the High Court will show how difficult it is to apply them in practice. The seventh proposition says:
“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 S. 438 of the Code should not be exercised.”
17. How can the Court, even if it had a third eye, assess the blatantness of corruption at the stage of anticipatory bail? And will it be correct to say that blatantness of the accusation will suffice for rejecting bail, even if the applicant’s conduct is painted in colours too lurid to be true? The eighth proposition framed by the High Court says:
Mere general allegations of mala fides in the petition are inadequate. The Court must be satisfied on materials before it that the allegations of mala fides are substantial and the accusation appears to be false and groundless.”
Does this rule mean, and that is the argument of the learned Additional Solicitor General, that 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.
18. According to the sixth proposition framed by the High Court, the discretion under S. 438 cannot 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. S. 438 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 an accusation of having committed “a non-bailable offence”. We see no warrant for reading into this provision the conditions subject to which bail can be granted under S. 437 (1) of the Code. That section, while conferring the power to grant bail in cases of non-bailable offences, provides by way of an exception that a person accused or suspected of the commission of a non-bailable offence “shall not be so released” if there appears to be reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life. If it was intended that the exception contained in S. 437 91) should govern the grant of relief S. 438 (1), nothing would have been easier for the legislature than to introduce into the latter section a similar provision. We have already pointer out the basic distinction between these two sections. S. 437 applies only after a person, who is alleged to have committed a non-bailable offence, is arrested or detained without warrant or appears or is brought before a court. Section 438 applies before the arrest is made and, in fact, one of the pre-conditions 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 S. 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 S. 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 S. 437 (1), by reason of which the court cannot release the applicant on bail is, normally, the credibility of the allegations contained in the First Information Report. In the majority of cases falling under S. 438, that data will be lacking for forming the requisite belief. If at all the conditions mentioned in S. 437 are to be read into the provisions of S. 438, the transplantation shall have to be done without amputation.That is to say, on the reasoning of the High Court, S. 438 (1) shall have to read as containing the clause that the applicant “shall not” be released on bail “if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life.” In this process one shall have overlooked that whereas, the poser under S. 438 (1) can be exercised if the High Court or the Court of Session “thinks fit to do so, S. 437 (1) does not confer the power to grant bail in the same wide terms. The expression “if it thinks fit” which occurs in S. 438 (1) in relation to the power of the High Court or the Court of Session is conspicuously absent in Section 437(1). We see no valid reason for re-writing S. 438 with a view, not to expanding the scope and ambit of the discretion conferred on the High Court and the Court of Session but, for the purpose of limiting it. Accordingly, we are unable to endorse the view of the High Court that anticipatory bail cannot be granted in respect of offences like criminal breach of trust for the mere reason that the punishment provided therefor is imprisonment for life. Circumstances may broadly justify the grant of bail in such cases too, though of course, the Court is free to refuse anticipatory bail in any case if there is material before it justifying such refusal.
19. A great deal has been said by the High Court on the fifth proposition framed by it, according to which, inter alia, the power under S. 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 S. 27 of the Evidence Act. According to the High Court, it is the right and the duty of the police to investigate into offences brought to their notice and therefore, courts should be careful not to exercise their powers in a manner which is calculated to cause interference therewith. It is true that the functions of the Judiciary and the police are in a sense complementary and not overlapping. And, as observed by the Privy Council in King Emperor v. Khwaja Nazir Ahmed, 71 Ind App 203:
“Just as it is essential that every one accuse of a crime should have free access to a court of justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes on them the duty of inquiry ….. The functions of the judiciary and the police are complementary, not overlapping, and the combination of the individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function….”.
But, these remarks, may it be remembered, were made by the Privy Council while rejecting the view of the Lahore High Court that it had inherent jurisdiction under the old S. 561-A, Cr. P.C. to quash all proceedings taken by the police in pursuance of two F.I.Rs. made to them. An order quashing such proceedings puts an end to the proceedings with the inevitable result that all investigation into the accusation comes to a halt. Therefore, it was held that the Court cannot, in the exercise of its inherent powers, virtually direct that the police shall not investigate into the charges contained in the F.I.R. We are concerned here with a situation of an altogether different kind. An order of anticipatory bail does not in any way, directly or indirectly, take away from the police their right to investigate into charges made or to be made against the person released on bail. In fact, two of the e usual conditions incorporated in a direction issued under S. 438 (1) are those recommended in sub-sec. (2) (i) and (ii) which require the applicant to co-operate with the police and to assure that he shall not tamper with the witness during and after the investigation. While granting relief under S. 438 (1), appropriate conditions can be imposed under S. 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 S. 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 S. 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, (1961) 1 SCR 14 at page No. 26 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 to have surrendered himself to the police. The broad foundation of this rule is stated to be that S. 46 of the Cr. P. C. does not contemplate any formality before a person can be said to be taken in custody sub-mission to the custody by word or action by a person is sufficient. For similar reasons, we are unable to agree that anticipatory bail should be refused if a legitimate case for the remand of the offender to the police custody under S. 167 (2) of the Code is made out by the investigating agency.
20. It is unnecessary to consider the third proposition of the High Court in any great details because we have already indicated that there is no justification for reading into S. 438 the limitations mentioned in S. 437. The High Court says that such limitations are implicit in S. 438 but, with respect, no such implications arise or can be read into that section. The plenitude of the section must be given its full play.
21. The High Court says in its fourth proposition that in addition to the limitations mentioned in S. 437, the petitioner must make out a “special case” for the exercise of the power to grant anticipatory bail. This, virtually, reduced the salutary power conferred by S. 438 to a dead letter. In its anxiety, otherwise just, to show that the power conferred by S. 438 is not “unguided or uncanalised”, the High Court has subjected that power to a restraint which will have the effect of making the power utterly unguided. To say that the applicant must make out a “special case” for the exercise of the power to grant anticipatory bail is really to say nothing. The applicant has undoubtedly to make out a case for the grant of anticipatory bail. But one cannot go further and say that he must make out a “special case.” We do not see why the provisions of S. 438 should be suspected as containing something volatile or incendiary, which needs to be handled with the greatest care and caution imaginable. A wise exercise of judicial power inevitable takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness of the context in which the discretion is required to be exercised and of the reasonable foreseeable consequences of its use, is the hall-mark 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 S. 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 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.
23. It remains only to consider the second proposition formulated by the High Court, which is the only one with which we are disposed to agree but we will say more about it a little later.
24. It will be appropriate at this stage to refer to a decision of this Court in Balchand Jain v. State of Madhya Pradesh (1977) 2 SCR 562 on which the High Court has leaned heavenly in formulating its propositions. One of us, Bhagwati J. who spoke for himself and A. C. Gupta, J. observed in that case 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 is to be exercised.”
Fazal Ali, J. who delivered a separate judgment of concurrence also observed that:
“an order for anticipatory bail is an extraordinary remedy available in special cases.”
and proceeded to say:
“As S. 438 immediately follows S. 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 implicity contained in Section 438 of the Code. Otherwise the result would be that a person who is accused of murder can get away under S. 438 by obtaining an order for anticipatory bail without the necessity of proving that there were reasonable grounds for believing that he was not guilty of offence punishable with death or imprisonment for life. Such a course would render the provisions of S. 437 nugatory and will give a free license to the accused persons charged with non-bailable offences to get easy bail by approaching the Court under S. 438 and by-passing S. 437 of the Code. This, we feel, could never have been the intention of the Legislature. Section 438 does not contain unguided or uncanalised powers 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 made out for passing, the order. The words “for a direction under this section” and “Court may, if it thinks fit, direct” clearly slow that the Court has to be guided by a large number of considerations including those mentioned in S. 437 of the Code.”
While stating his conclusion Fazal Ali, J. reiterated in conclusion No. 3 that “S. 438 of the Code is an extraordinary remedy and should be restorted to only in special cases.”
25. We hold the decision in Balchand Jain (supra) in great respect but it is necessary to remember that the question as regards the interpretation of Section 438 did not at all arise in that case. Fazal Ali, J. has stated in Para 3 of his judgment that “the only point” which arose for consideration before the Court was whether the provisions of Section 438 relating to anticipatory bail stand overruled and repealed by virtue of R. 184 of the Defence and Internal Security of India Rules, 1971 or whether both the provisions can. By the rule of harmonious interpretation, exist side by side. Bhagwati, J. has also stated in his judgment, after adverting to S. 438 that Rule 184 is what the Court was concerned with in the appeal. The observations made in Balchand Jain regarding the nature of the power conferred by S. 438 and regarding the question whether the conditions mentioned in S. 437 should be read into S. 438 cannot therefore be treated as conclusion the points which arise directly for our consideration. We agree, with respect, that the power conferred by S. 438 is of an extraordinary character in the sense indicated above, namely that it is not ordinarily resorted to like the power conferred by Ss. 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.
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 S. 438, especially when no such restrictions have been imposed by the legislature in the terms of that section. S. 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 S. 438 can make its provisions constitutionally vulnerable since the right to personal freedom cannot be made to depend on compliance with unreasonable restrictions. The beneficent provision contained in S. 438 must be saved, not jettisoned. No doubt can linger after the decision in Maneka Gandhi, (1978) 1 SCC 248 that in order to meet the challenge of Art. 21 of the Constitution, the procedure established by law for depriving a person of his liberty must be fair, just and reasonable. S. 438, in the form in which it is conceived by the legislature, is open to no exception on the ground that it prescribes a procedure which is unjust of unfair. We ought, at all costs, to avoid throwing it open to a Constitutional challenge by reading words in it which are not to be found therein.
27. It is not necessary to refer to decisions which deal with the right to ordinary bail because that right does not furnish an exact parallel to the right to anticipatory bail. It is, however, interesting that as long back as in 1924 it was held by the High Court of Calcutta in Nagendra v. King Emperor, AIR 1924 Cal 476. (479, 480) that the object of bail is to secure the attendance of the accused at the trial, that the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial and that it is indisputable that bail is not to be withheld as a punishment. In two other cases which, significantly, are the ‘Meerut Conspiracy cases observations are to be found regarding the right to bail which deserve a special mention. In K.N. Joglekar v. Emperor AIR 1931 All 504 (SB) it was observed, while dealing with S. 498 which corresponds to the present S. 439 of the Code, that it conferred upon the Sessions Judge or the High Court wide powers to grant bail which were not handicapped by the restrictions in the preceding S. 497 which corresponds to the present S. 437. It was observed by the Court that there was no hard and fast rule and no inflexible principle governing the exercise of the discretion conferred by S. 498 and that the only principle which was established was that the discretion should be exercised judiciously. In Emperor v. H. L. Hutchinson AIR 1931 All 356 at page No. 358 it was said that it was very unwise to make an attempt to lay down any particular rules which bind the High Court, having regard to the fact that the legistature itself left the discretion of the Court unfettered. According to the High Court, the variety of cases that may arise from time to time cannot be safely classified and it is dangerous to make an attempt to classify the cases and to say that in particular classes a bail may be granted but not in other classes. It was observed that the privciple to be deduced from the various sections in the Cr. P.C. was that grant of bail is the rule and refusal is the exception. An accused person who enjoys freedom is in a much better position to look after his case and to properly defend himself than if he were in custody. As a presumably innocent person he is therefore entitled to freedom and every opportunity to look after his own case. A presumably innocent person must have his freedom to enable him to establish his innocence.
28. Coming nearer home, it was observed by Krishna Iyer. J., in Gudikanti Narasimhulu v. Public Prosecutor. High Court of Andhra Pradesh (1978) 1 SCC 240 that “the issue of bail is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process. After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of procedure established by law. The last four words of Art. 21 are the life of that human right.”
29. In Gurcharan Sing v. State (Delhi Admn.) (1978) 1 SCC 118 it was observed by Goswami, J., who spoke for the Court, that “there cannot be an inexorable formula in the matter of granting bail. The facts and circumstances of each case will govern the exercise of judicial discretion in granting or cancelling bail”.
30. In American Jurisprudence (2d, Vol. 8, page 806, para 39) it is stated:
“Where the granting of bail lies within the discretion of the court, the granting or denial is regulated, to a large extent, by the facts and circimstances of each particular case. Since the object of the detention or imprisonment of the accused is to secure his appearance and submission to the jurisdiction and the judgment of the court, the primary inquiry is whether a recognizance or bond would effect that end.”
It is thus clear that 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. Any one single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail
31. 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. The relevance of these considerations was pointed out in State v. Captain Jagjit Singh. (1962) 3 SCR 622 which, though, was a case under the old S. 498 which corresponds to the present S. 439 of the Code. It is of paramount consideration to remember that the freedom of the individual is as necessary for the survival of the society as it is for the egoistic purposes of the individual. A person seeking anticipatory bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints on his freedom, by the acceptance of conditions which the court may think fit to impose, in consideration of the assurance that if arrested, he shall be enlarged on bail.
32. A word of caution may perhaps be necessary in the evaluation of the consideration whether the applicant is likely to abscond. There can be no presumption that the wealthy and the mighty will submit themselves to trial and that the humble and the poor will run away from the course of justice, any more than there can be a presumption that the former are not likely to commit a crime and the latter are more likely to commit it. In his charge to the grand jury at Salisbury Assizes, 1899 (to which Krishna Iyer, J. has referred in Gudikanti (supra)), Lord Russell of Killowen said:
“…………… it was the duty of magistrates to admit accused persons to bail, wherever practicable, unless there were strong grounds for supposing that such persons would not appear to take their trial. It was not the poorer classes who did not appear for their circumstances were such as to tie them to the place where they carried on their work. They had not the golden wings with which to fly from justice.”
This, incidentally, will serve to show how no hard and fast rules can be laid down in discretionary matters like the grant or refusal of bail, whether anticipatory or otherwise. No such rules can be laid down for the simple reason that a circumstance which, in a given case, turns out to be conclusive, may have no more than ordinary signification in another case.
33. We would, therefore, prefer to leave the High Court and the Court of Session to exercise their jurisdiction under S. 438 by a wise and careful use of their discretion which by their long training and experience they are ideally suited to do. The ends of justice will be better served by trusting these courts to act objectively and in consonance with principles governing the grant of bail which are recognised over the years, than by divesting, them of their discretion which the legislature has conferred upon them, by laying down inflexible rules of general application. It is customary, almost chronic, to take a statute as one finds it on the ground that, after all. “the legislature in its wisdom” has thought it fit to use a particular expression. A convention may usefully grow whereby the High Court and the Court of Session may be trusted to excercise their discretionary powers in their wisdom, especially when the discretion is entrusted in their care by the legislature in its wisdom. if they err, they are liable to be corrected.
34. This should be the end of the matter, but it is necessary to clarify a few points which have given rise to certain misgivings.
35. Section 438 (1) of the Code lays down a condition which has to be satisfied before anticipatory bail can be granted. The applicant must show that he has “reason to believe’ that he may be arrested for a non-bailable offence. The use of the expression “reason to believe” shows that the belief that the applicant may be so arrested must be founded on reasonable grounds. Mere ‘fear’ is not ‘belief’, for which reason it is not enough for the applicant to show that he has somesort 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 S. 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 accusations, likely or unlikely.
Secondly, if an application for anticipatory bail is made to the High Court or the 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 grant-in such relief. It cannot leave the question for the decision of the Magistrate concerned under S. 437 of the Code, as and when an occasion arises. Such a course will defeat the very object of Section 438.
Thirdly, the filing of a First Information Report is not a condition precedent to the excercise of the power under S. 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.
Fourthly, anticipatory bail can be granted even after in F. I. R. is filed, so long as the applicant has not been arrested.
Fifthly, the provisions of S. 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 offences for which he is arrested, are concerned. After arrest, the accused must seek his remedy under S. 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.
36. We have said that there is one proposition formulated by the High Court with which we are inclined to agree. That is proposition No. (2). We agree that a ‘blanket order’ of anticipatory bail should not generally be passed. this flows from the very language of the section which, as discussed above, requires the applicant to show that he has “reason to believe” that he may be arrested. A belief can be said to be founded on reasonable grounds only if there is something tangible to go by on the basis of which it can be said that the applicant’s apprehension that he may be arrested is genuine. That is why, normally, a direction should not issue under S. 438 (1) to the effect that the applicant shall be released on bail “whenever arrested for whichever offence whatsoever”. That is what is meant by a ‘blanket order’ of anticipatory bail, an order which serves as a blanket to cover or protect any and every kind of allegedly unlawful activity, in fact any eventuality, likely or unlikely regarding which. no concrete information can possible be had. The rationale of a direction under Section 438(1) is the belief of the applicant founded on reasonable grounds that he may be arrested for a non-bailable offence. It is unrealistic to expect the applicant to draw up his application with the meticulousness of a pleading in a civil case and such is not requirement of the section. But specific events and facts must be disclosed by the applicant in order to enable the court to judge of the reasonableness of his belief, the existence of which is the sine qua non of the exercise of power conferred by the section.
37. 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 S. 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 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.
38. There was some discussion before us on certain minor modalities regarding the passing of bail orders under S. 438 (1). Can an order of bail be passed under that section without notice to the public prosecutor ? It can be. 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. Should the operation of an order passed under Section 438 (1) be limited in point of time? Not necessarily. The Court may, if there are reasons for doing so, limit the operation of the order to a short period until after the filing of an 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 S. 437 or 439 of the Code 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.
39. During the last couple of years this Court, while dealing with appeals against orders passed by various High Courts, has granted anticipatory bail to many a person by imposing conditions set out in S. 438 (2) (i),(ii) and (iii). The Court has, in addition, directed in most of those cases that (a) the applicant should surrender himself to the police for a brief period if a discovery is to be made under S.27 of the Evidence Act or that he should be deemed to have surrendered himself if such a discovery is to be made. In certain exceptional cases, the Court has, in view of the material placed before it, directed that the order of anticipatory bail will remain in operation only for a week or so until after the filing of the F.I.R. in respect of matters covered by the order. These orders, on the whole, have worked satisfactorily, causing the least inconvenience to the individuals concerned and least interference with the investigational rights of the police. The Court has attempted through those orders to strike a balance between the individual’s right to personal freedom and the investigational rights of the police. The appellants who were refused anticipatory bail by various courts have long since been released by this Court under Section 438 (1) of the Code.
40. The various Appeals and Special Leave Petitions before us will stand disposed of in terms of this judgment. The judgment of the Full Bench of the Punjab and Haryana High Court, which was treated as the main case under appeal, is substantially set aside as indicated during the course of this judgment.
. Reported in AIR 1978 Punj and Har 1 (FB)
Mr. M. C. Bhandare, Sr. Advocate (335, 430, 431, 438);
Mr. Gobind Das, Sr. Advocate (153), Mr. K. S. Thapar, Advocate (506 and 154/78), Mr. Dilip Singh, Advocate (506 and 154/78)
Mrs. Sunanda Bhandare, Advocate, M/s. A. N. Karkhanis, Deepak Thaper, Advocates (in 335, 430, 431, 506/77 and 154/78) and Miss Malini, Advocate for Appellants in Crl. A. Nos. 335, 365, 430, 431, 506, 508, 499/77, 130, 141, 142, 153, 154 and Petitioners in SLPs. 272-274/78
Mr. Frank Anthony, Sr. Advocate (350), Mr. V. C. Mahajan, Sr. Advocate (338), Mr. O. P. Sharma, Advocate MR. R. C. Bhatia, Advocate for Appellants in Crl A. Nos. 336 to 338, 350, 396, 397-399, 473, 474/77 and 1, 15 to 17, 69, 70, 81,82, 98 and 149 and 109/78
Mr. Harjinder Singh, Advocate for Appellant in Crl. A. No. 339/77
Mr. B. S. Bindra, Sr. Advocate Mr. S. M. Ashri, Advocate Mrs. Lakshmi Arvind, Advocate for Appellants in Crl. As. Nos. 347, 366, 415-420, 477, 511, 512, 469/77 and 145/78
Mr. P.R. Mridul, Sr. Advocate (M/s. H. K. Puri, Aruneshwar Prasad and Vivek Seth, Advocate for Appellant in Crl. A. No. 346/77)
Mr. L. N. Sinha, Sr. Advocate (406 and 352), M/s. R. P. Singh, L. R. Singh, Suman Kapoor and Sukumar Sahu (406 and 352), Mr. M. C. Bhandare, Sr. Advocate (436), M/s. P. P. Singh, Advocate (435) and Mr. R. K. Jain, Advocate for Appellants in Crl. A. Nos. 351, 352, 406, 438-40, 463/77
Mr. S. K. Jain, Advocate for Appellant in Crl. A. No. 53/78
Mr. V. M. Tarkunde, Sr. Advocate (367), M/s. M. M. L. Srivastava R. Satish and E. C. Agrawala, Advocate for Appellant in Crl. A Nos. 367/77 and SLP 383/78
Mr. V. C. Mahajan, Sr. Advocate Mr. Harbhagwan Singh, Sr. Advocate M/s. S. K. Mehta, K. R. Nagaraja and P. N. Puri, Advocates for Appellant in Crl. A. Nos. 383/78 and 498/77
Mr. K. K. Mohan, Advocate for Appellant in SLP 260/78
Mr. A. K. Sen, Sr. Advocate Mr. Rathin Dass, Advocate for Appellant in Crl. A. Nos. 40, 41/78
Mr. M. M. L. Srivastava, Advocate for Appellant in SLP 388/78
Mr. L. M. Singhvi, Sr. Advocate Mr. N. S. Dass Behl, Advocate for Appellants in Crl. A. Nos. 38/78 and SLP 479/78
Mr. Soli J Sorabjee, Addl. Sol. Genl. (335), M/s. Bishamber Lal Khanna (355), Hardev Singh, R. S. Sodhi, and B. B. Singh, Advocates for Appellants in Cr. As. Nos. 447-449/77 and Respondents in Crl. A. Nos. 335-339, 347, 350-52 366, 367, 388, 396-398, 406, 415-420, 438-440, 463, 473, 474, 477, 498, 511/77, 1, 15-17/78, 469, 510/77, 109/78 and SLP Nos. 388/78, Crl. A. No. 98/78 and SLP No. 260/78
Mr. Soli J. Sorabjee, Addl. Sol Genl. (430), Mr. Thakur Naubat Singh, Dy. Adv. Genl. Haryana, (M/s. S. N. Anand, Advocate (431 and 499), Mr. R. N. Sachthey, Advocate for Respondents in Crl. A. Nos. 365, 430 and 431/77, 508, 499/77 and 38, 141 and 142/78
Mr. M. M. Kshatriya and G. S. Chatterjee, Advocates for Respondents in Crl. A. Nos. 40 and 41/78
Mr. M. M. Punchi and P. C. Bhartari, Advocates for Appellant in Crl. A. No. 346/77
M/s. J. K. Gupta, B. R. Agarwala, Janendra Lal, Advocates for Vice-Chancellor, Punjab University in Crl. A. No. 346/77.