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Gurbaksh Singh Sibbia Versus The State of Punjab-9/04/1980

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    • #124050
      advtanmoy
      Keymaster

      Criminal Procedure Code, 1973—Sections 437 and 438—Anticipatory bail—Considerations for—Anticipation of foul play—The provision for grant of bail can be invoked to meet such contingency in addition to other grounds.

      [See the full post at: Gurbaksh Singh Sibbia Versus The State of Punjab-9/04/1980]

    • #124052
      advtanmoy
      Keymaster

      Use of retracted confession against the co-accused however stands on a different footing from the use of such confession against the maker.

      In Union of India v. Bal Mukund and Ors., Criminal Appeal No. 1397 of 2007, on March 31, 2009.

      “21. We may notice that in State (NCT of Delhi) v. Navjot Sandhu [(2005) 11 SCC 600], 2005 SCC (Cri) 1715 this Court has laid down the law in the following terms:

      “38. The use of retracted confession against the co-accused however stands on a different footing from the use of such confession against the maker. To come to grips with the law on the subject, we do no more than quoting the apt observations of Vivian Bose, J., speaking for a three-Judge Bench in Kashmira Singh v. State of M.P. AIR 1952 SC 159 Before clarifying the law, the learned Judge noted with approval the observations of Sir Lawrence Jenkins that a confession can only be used to “lend assurance to other evidence against a co-accused”.

      (iv) In Raja @ Ayyappan vs State of Tamil Nadu, Criminal Appeal No. 1120 of 2010, on April 1, 2020.

      “28. Section 30 of the Indian Evidence Act mandates that to make the confession of a coaccused admissible in evidence, there has to be a joint trial. If there is no joint trial, the confession of a co accused is not at all admissible in evidence and, therefore, the same cannot be taken as evidence against the other coaccused. The Constitution Bench of this Court in Kartar Singh (supra), while considering the interplay between Section 30 of the Indian Evidence Act and Section 15 of the TADA Act held that as per Section 15 of the TADA Act, after the amendment of the year 1993, the confession of the co- accused, is also a substantive piece of evidence provided that there is a joint trial.

      32. In Ananta Dixit v. The State, 1984 Crl. L.J. 1126, the Orissa High Court was considering a similar case under Section 30 of the Evidence Act. The appellant, in this case, was absconding. The question for consideration was whether a confession of one of the accused 1984 Crl. L.J.

      1126 persons who was tried earlier, is admissible in evidence against the appellant. The Court held that the confession of the co-accused was not admissible in evidence against the present appellant. The Court held:

      “7. As recorded by the learned trial Judge, the accused Narendra Bahera, whose confessional statement had been relied upon, had been tried earlier and not jointly with the appellant and the co accused person Baina Das. A confession of the accused may be admissible and used not only against him but also against a co-accused person tried jointly with him for the same offence. Section 30 applies to a case in which the confession is made by accused tried at the same time with the accused person against whom the confession is used. The confession of an accused tried previously would be rendered inadmissible. Therefore, apart from the evidentiary value of the confession of a co-accused person, the confession of Narendra Behera was not to be admitted under Section 30 of the Evidence Act against the present appellant and the co-accused Baina Das.”

    • #124053
      advtanmoy
      Keymaster

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

      The power of the Court under Section 438 Cr.P.C is purely discretionary and this Court has to exercise its power judiciously based on settled principles. But, the circumstances to exercise such jurisdiction may vary from case to case. The law regarding grant of anticipatory bail is elaborately discussed by the Constitution Bench of the Apex Court in Gurbaksh Singh Sibbia v. State of Punjab (referred supra), as 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” such power is to be exercised. No hard and fast rule can be laid down in discretionary matters like grant or refusal of bail whether anticipatory or regular bail. The Apex Court further held that, it cannot be laid down as an inexorable rule that anticipatory bail cannot be granted unless the proposed accusation appears to be actuated by malafides; 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. Therefore, anticipatory bail can be granted even in serious cases like economic offences and States should have no consideration for grant or refusal of anticipatory bail, as 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. Therefore, while dealing with the application for grant of pre- arrest bail or anticipatory bail, the Court must take into consideration the guidelines issued in Gurbaksh Singh Sibbia v. State of Punjab (referred supra).

      At this juncture, it would be appropriate to note that the view expressed by the 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 Gurbaksh Singh Sibbia v. State of Punjab (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 Jain v. State of Madhya Pradesh (referred 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”.

    • #124054
      advtanmoy
      Keymaster

      Grant of bail though involves exercise of discretionary power of the Court, such exercise of discretion has to be made in a judicious manner

      In Neeru Yadav v. State of U.P, a reference was made to the earlier judgment of the Supreme Court in, Ram Govind Upadhyay v. Sudarshan Singh , wherein, it has been clearly laid down that the grant of bail though involves exercise of discretionary power of the Court, such exercise of discretion has to be made in a judicious manner and not as a matter of course. The heinous nature of crimes warrants more caution as there is a greater chance of rejection of bail though, however, dependent on the factual matrix of the matter. In the said case, reference was made to Prahlad Singh bhati v. NCT of Delhi , and thereafter the court proceeded to state the following principles:-

      (a) While granting bail the court has to keep in mind not only the nature of the accusations, but the severity of the punishment, if the accusation entails a conviction and the nature of evidence in support of the accusations.

      (b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the court in the matter of grant of bail.

      (c) While it is not expected to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought always to be a prima facie satisfaction of the court in support of the charge.

      (d) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail, and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.

      It is a well-settled principle of law that, while dealing with an application for grant of bail, it is the duty of the Court to take into consideration certain factors and they basically are, (i) the nature of accusation and the severity of punishment in cases of conviction and the nature of supporting evidence, (ii) reasonable apprehension of tampering with the witnesses for apprehension of threat to the complainant, and (iii) Prima facie satisfaction of the court in support of the charge. [vide Chaman Lal v. State of U.P ) In Prasanta Kumar Sarkar v. Ashis Chatterjee , while dealing with the Courts role to interfere with the power of the High Court to grant bail to the accused, the Court observed that it is to be seen that the High Court has exercised this discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in catena of judgments on that point. The Court proceeded to enumerate the factors:-

      9. among other circumstances, the factors [which are] to be borne in mind while considering an application for bail are:

      (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;

      (ii) nature and gravity of the accusation;

      (iii) severity of the punishment in the event of conviction;

      (iv) danger of the accused absconding or fleeing, if released on bail;

      (v) character, behaviour, means, position and standing of the accused;

      (vi) likelihood of the offence being repeated;

      (vii) reasonable apprehension of the witnesses being influenced; and

      (viii) danger, of course, of justice being thwarted by grant of bail.

    • #124058
      advtanmoy
      Keymaster

      The provisions of Section 438 cannot be invoked after the arrest of the accused.

      In Savitri Agarwal v. State of Maharashtra and Anr., [SC-10 July, 2009 ]culled out the principles laid down in Gurbaksh Singh. Some principles which are necessary to be reproduced are as follows:

      (i) 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.

      ii) 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.

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