SUSHILA AGGARWAL AND OTHERS versus STATE (NCT OF DELHI) AND ANOTHER

[2020] 2 S.C.R. 1

SUSHILA AGGARWAL AND OTHERS

STATE (NCT OF DELHI) AND ANOTHER

(Special Leave Petition (Criminal) Nos. 7281-7282 of 2017)

JANUARY 29, 2020

[ARUN MISHRA, INDIRA BANERJEE, VINEET SARAN,M. R. SHAH AND S. RAVINDRA BHAT, JJ.]

Code of Criminal Procedure, 1973 – ss.437, 438, 439 and167(2) – Order u/s.438 granting anticipatory bail – Life andoperation of – Conflicting views of different Benches of varyingstrength as to whether the protection granted u/s.438 should belimited to fixed period so as to enable the person to surrenderbefore Trial Court and seek regular bail; whether the life of ananticipatory bail should end at the time and stage when the accusedis summoned by the court – Reference to larger Bench – Held: (PerCuriam) Protection granted u/s.438 should not invariably be limitedto fixed period; it should inure in favour of the accused withoutany restriction on time – Normal conditions u/s.437(3) r/w s.438(2)should be imposed; if there are specific facts or features in regardto any offence, it is open for the court to impose any appropriatecondition (including fixed nature of relief, or its being tied to anevent) etc. – Further, the life or duration of an anticipatory bailorder does not end normally at the time and stage when the accusedis summoned by the court, or when charges are framed, but cancontinue till the end of the trial – Again, if there are any special orpeculiar features necessitating the court to limit the tenure ofanticipatory bail, it is open for it to do so – Observations in SiddharamSatlingappa Mhetre case (and other similar judgments) that norestrictive conditions at all can be imposed, while grantinganticipatory bail are overruled – Likewise, the decision in SalauddinAbdulsamad Shaikh case and subsequent decisions which lay downsuch restrictive conditions, or terms limiting the grant of anticipatorybail, to period of time are overruled – Guiding principlesenumerated for Courts to follow while dealing with applicationsu/s.438 – Criminal Procedure Code (Amendment) Act, 2005 – Codeof Criminal Procedure Amendment Act, 2018 – Penal Code, 1860 –

CDEF

Ass.376(3), 376AB, 376DA, 376DB – Constitution of India – Art.21– Evidence Act, 1872 – s.27 – Interpretation of Statutes.

Answering the referred questions, the Court

HELD: 1.1 PER M. R. SHAH, J.

BThe expression “anticipatory bail” has not been defined inthe Code. As observed by Supreme Court in the case of BalchandJain, “anticipatory bail” means “bail in anticipation of arrest”.As held, the expression “anticipatory bail” is misnomerinasmuch as it is not as if bail is presently granted by the Court inanticipation of arrest. An application for “anticipatory bail” inCanticipation of arrest could be moved by the accused at stagebefore an FIR is filed or at stage when FIR is registered butthe charge sheet has not been filed and the investigation is inprogress or at stage after the investigation is concluded. Powerto grant “anticipatory bail” under Section 438 of the Cr.P.C. vestsDonly with the Court of Sessions or the High Court. Therefore,ultimately it is for the concerned court to consider the applicationfor “anticipatory bail” and while granting the “anticipatory bail”it is ultimately for the concerned court to impose conditionsincluding the limited period of “anticipatory bail”, depends uponthe stages at which the application for anticipatory bail is moved.EA person in whose favour pre-arrest bail order is made underSection 438 of the Cr.P.C. has to be arrested. However, oncethere is an order of pre-arrest bail/anticipatory bail, as and whenhe is arrested he has to be released on bail. Otherwise, there isno distinction or difference between the pre-arrest bail orderunder Section 438 and the bail order under Section 437 & 439 ofFthe Cr.P.C. The only difference between the pre-arrest bail orderunder Section 438 and the bail order under Sections 437 and 439is the stages at which the bail order is passed. The bail orderunder Section 438 of the Cr.P.C. is prior to his arrest and inanticipation of his arrest and the order of bail under Sections 437Gand 439 is after person is arrested. bare reading of Section438 of the Cr.P.C. shows that there is nothing in the language ofthe Section which goes to show that the pre-arrest bail grantedunder Section 438 has to be time bound. The position is the sameas in Section 437 and Section 439 of the Cr.P.C. [Para 7.1][33E-HH, 34A-D]

1.2 Considering the decision of the Constitution Bench ofSupreme Court in the case of Gurbaksh Singh Sibbia and therelevant observations, the decision of this Court in the case ofSiddharam Satlingappa Mhetre to the extent it takes the viewthat the life of the order under Section 438 Cr.P.C. cannot becurtailed is not correct law in light of the observations made bythe Constitution Bench in paragraphs 42 and 43 in Gurbaksh SinghSibbia. The decision of Supreme Court in the case of SalauddinAbdulsamad Shaikh which takes an extreme view that the orderof “anticipatory bail” has to be necessarily limited in time frameis also not good law and is against and just contrary to thedecision in the case of Gurbaksh Singh Sibbia, which is aConstitution Bench judgment. [Para 7.4]1.3 Thus, considering the observations made by theConstitution Bench of Supreme Court in the case of GurbakshSingh Sibbia, the court may, if there are reasons for doing so,limit the operation of the order to short period only after filingof an FIR in respect of the matter covered by order and theapplicant may in such case be directed to obtain an order of bailunder Sections 437 or 439 of the Code within reasonable shortperiod after the filing of the FIR. The Constitution Bench furtherobserved that the same need not be followed as an invariablerule. It is further observed and held that normal rule should benot to limit the operation of the order in relation to period oftime. The conditions can be imposed by the concerned court whilegranting pre-arrest bail order8787 including limiting the operationof the order in relation to period of time if the circumstances sowarrant, more particularly the stage at which the “anticipatorybail” application is moved, namely, whether the same is at thestage before the FIR is filed or at the stage when the FIR is filedand the investigation is in progress or at the stage when theinvestigation is complete and the charge sheet is filed. However,the normal rule should be not to limit the order in relation to aperiod of time. [Para 7.5][49D-H]

Shri Gurbaksh Singh Sibbia and others v. State ofPunjab (1980) 2 SCC 565 : [1980] 3 SCR 383 – reliedon.

ASiddharam Satlingappa Mhetre v. State of Maharashtra(2011) 1 SCC 694 : [2010] 15 SCR 201 – held notcorrect law.

Salauddin Abdulsamad Shaikh v. State of Maharashtra(1996) 1 SCC 667 : [1995] 6 Suppl. SCR 556 – heldBnot good law.

Bhadresh Bipinbhai Sheth v. State of Gujarat (2016) 1SCC 152 : [2015] 10 SCR 398; K.L. Verma v. State andanother (1998) 9 SCC 348; Sunita Devi v. State of Bihar(2005) 1 SCC 608 : [2004] 6 Suppl. SCR 707; NirmalCJeet Kaur v. State of M.P. (2004) 7 SCC 558 : [2004] 3Suppl. SCR 1006; HDFC Bank Limited v. J.J. Mannan(2010) 1 SCC 679 : [2009] 16 SCR 590; Satpal Singhv. State of Punjab (2018) 4 SCC 303 : [2018] 3 SCR739; Balchand Jain v. State of M.P. (1976) 4 SCC 572: [1977] 2 SCR 52; Joginder Kumar v. State of U.P.D(1994) 4 SCC 260; Lalitha Kumari v. State of U.P.(2014) 2 SCC 1 : [2013] 14 SCR 713; Arnesh Kumarv. State of Bihar (2014) 8 SCC 273 : [2014] 8 SCR128; M.C. Abraham v. State of Maharashtra (2003) 2SCC 649 : [2002] 5 Suppl. SCR 677 ; Uday MohanlalEAcharya v. State of Maharashtra (2001) 5 SCC 453 :[2001] 2 SCR 878 – referred to.

41st Report of the Law Commission of India – referred to.

PER S. RAVINDRA BHAT, J. [CONCURRING]

F2.1 Bail ipso facto has not been defined under the Code. Itis now widely recognized as norm which includes the governingprinciples enabling the setting of accused person on libertysubject to safeguards, required to make sure that he is presentwhenever needed. The justification for bail (to one accused ofcommission or committing crime is that it preserves personGwho is under cloud of having transgressed law but not convictedfor it, from the rigors of detention. Section 438 of the Cr.PCprovides for the issuance of directions for the grant of bail to aperson apprehending arrest. The Cr.PC of 1973 replaced the oldcode of 1898. The old code did not provide for any correspondingprovision to Section 438 of the code of 1973. Under the old code,H

there was sharp difference of opinion amongst the various HighCourts on the question as to whether courts had the inherentpower to pass an order of bail in anticipation of arrest. Thepredominant position was that courts did not have such power.Subsequently, the need for various amendments to make the codemore comprehensive resulted in the enactment of the Code ofCriminal Procedure in 1973. Section 438 does not expressly usethe term “anticipatory bail”; its language instead empowers theconcerned to court to issue directions for grant of bail.[Paras 39, 40][94H], [95A-D]2.2 The term ‘anticipatory bail’ finds no place in the Cr.PCitself but was used by the Law Commission of India in its 41stReport. The term was used to convey that it was an applicationfor bail in anticipation of arrest, i.e., before the arrest itself ismade. The pre-dominant thinking of the larger, ConstitutionBench, in Sibbia, was that given the premium and the value thatthe Constitution and Article 21 placed on liberty- and given thata tendency was noticed, of harassment – at times by unwarrantedarrests, the provision for anticipatory bail was made. It was nothedged with any conditions or limitations- either as to its duration,or as to the kind of alleged offences that an applicant was accusedof having committed. The courts had the discretion to imposesuch limitations (like co-operation with investigation, nottampering with evidence, not leaving the country etc) as werereasonable and necessary in the peculiar circumstances of givencase. However, there was no invariable or inflexible rule that theapplicant had to make out special case, or that the relief was tobe of limited duration, in point of time, or was unavailable forany particular class of offences.[Paras 42,46][95G, 99G-H,100A-C]

2.3 Some judgments, notably Ram Kishna Balothia & Anr.and Jai Prakash Singh v State of Bihar held that the provision foranticipatory bail is not an essential ingredient of Article 21,particularly in the context of imposition of limitations on thediscretion of the courts while granting anticipatory bail, eitherlimiting the relief in point of time, or some other restriction inrespect of the nature of the offence, or the happening of an event.Such observations are contrary to the broad terms of the power

Adeclared by the Constitution Bench of this court in Sibbia. Thelarger bench had specifically held that an “over-generous infusionof constraints and conditions which are not to be found in Section438 can make its provisions constitutionally vulnerable since theright to personal freedom cannot be made to depend on compliancewith unreasonable restrictions.” The reason for enactment ofBSection 438 in the Code was Parliamentary acceptance of thecrucial underpinning of personal liberty in free and democraticcountry. Parliament wished to foster respect for personal libertyand accord primacy to fundamental tenet of criminaljurisprudence, that everyone is presumed to be innocent till heCor she is found guilty. Life and liberty are the cherished attributesof every individual. The urge for freedom is natural to each humanbeing. Section 438 is procedural provision concerned with thepersonal liberty of each individual, who is entitled to the benefitof the presumption of innocence. As denial of bail amounts todeprivation of personal liberty, the court should lean against theDimposition of unnecessary restrictions on the scope of Section438, especially when not imposed by the legislature. Theinterpretation of Section 438- that it does not encapsulate Article21, is erroneous. This court is of the opinion that the issue is notwhether Section 438 is an intrinsic element of Article 21: it is

Erather whether that provision is part of fair procedure. As to that,there can be no doubt that the provision for anticipatory bail ispro-liberty and enables one anticipating arrest, facility ofapproaching the court for direction that he or she not bearrested; it was specifically enacted as measure of protectionagainst arbitrary arrests and humiliation by the police, whichFParliament itself recognized as widespread malaise on the partof the police. [Paras 47, 49 and 50][100C-F, 101B-D, E-G]

2.4 fuller consideration of the various decisions citedearlier, especially those which emphasized the need to limit thelife of an order of anticipatory bail, are premised on theGunderstanding that the grant of an unconditional order of bail wouldthwart investigation. In the first place, this premise is unfounded,given that Sibbia stated that such an order would be “contrary tothe terms” of Section 438; and furthermore, that conditionsmentioned in Section 438(2) could be imposed while grantingH

anticipatory bail. The requirement of imposing conditions is notcompulsive (noticing the use of the term “may” which precedesthe requirement of imposing conditions). Nevertheless, anunconditional order, in the sense of an order not even imposingconditions mentioned in Section 438(2) can impede or hamperinvestigation, Sibbia held that the conditions mentioned in thatprovision should be imposed. This requirement is more matterof prudence, while granting relief. The Law Commission’s 41stand 48th report focused on the need to introduce the provision(for anticipatory bail) as preventive, or curative measure, todeal with particular problem, i.e. unwarranted arrests. Sibbianoticed this fact, and also that significantly, Section 438 is nothedged with any obligation on the court’s power, to imposeconditions. That situation remains unchanged: the provisionremains unaltered-at least substantially (barring an amendmentin 2005 which obliged the issuance of notice to the publicprosecutor before issuing any order for anticipatory bail). The203rd Report of the Law Commission, which reviewed the entirelaw on the subject and noticed later decisions, such as Salauddin,Adari Narain Das, etc, recommended no change in law on thisaspect relating to conditions. In this background, it is importantto notice that the only bar, or restriction, imposed by Parliamentupon the exercise of the power (to grant anticipatory bail) is byway of positive restriction, i.e. in the case where accused arealleged to have committed offences punishable under Section376(3) or Section 376AB or Section 376DA or Section 376DB ofthe Indian Penal Code.In other words, Parliament has now deniedjurisdiction of the courts (i.e. Court of Session and High Courts)from granting anticipatory bail to those accused of such offences.The amendment (Code of Criminal Procedure Amendment Act,2018) introduced Section 438(4). Clearly, therefore, where theParliament wished to exclude or restrict the power of courts,under Seciton 438 of the Code, it did so in categorical terms.Parliament’s omission to restrict the right of citizens, accused ofother offences from the right to seek anticipatory bail, necessarilyleads one to assume that neither blanket restriction can beread into by this court, nor can inflexible guidelines in the exerciseof discretion, be insisted upon- that would amount to judiciallegislation. [Paras 54-56][105B-D, 106A-D, 107-A-B-C]

A2.5 The imposition of conditions under Section 438(2) withreference to Section 437(3) is enough safeguard for theauthorities – including the police and other investigating agencies,who have to investigate into crimes and the possible complicityof the applicants who seek such relief. Taking each concern, i.e.the addition of more serious offences; presence of large numberBof individuals or complainants; possibility of non-cooperation -non-cooperation in the investigation or the requirement of theaccused’s statement to aid the recovery of articles andincriminating articles in the course of statements made duringinvestigations – it is noticeable, significantly, that each of theseCis contemplated as condition and is invariably included in everyorder granting anticipatory bail. In the event of violation oralleged violation of these, the concerned authority is notremediless; recourse can be had to Section 438(2) read withSection 437(3). Any violation of these terms would attract adirection to arrest him. This power or direction to arrest is foundDin Section 437(5). However, that provision has no textualapplication to regular bail granted by the Court of Sessions orHigh Courts under Section 439 or directions not to arrest, i.e.order of anticipatory bail under Section 438. Secondly, Section439(2) which is cast in wide terms, adequately covers situationsEwhen an accused does not cooperate during the investigation orthreatens to, or intimidates witness[es] or tries to tamper withother evidence. There is nothing in the provisions of Section438 which suggests that Parliament intended to restrict itsoperation, either as regards the time period, or in terms of thenature of the offences in respect of which, an applicant had to beFdenied bail, or which special considerations were to apply.[Paras 61, 62][109-D-H, 110A]

2.6 For the above reasons, the answer to the first questionin the reference made to this bench is that there is no offence,per se, which stands excluded from the purview of Section 438 -Gexcept the offences mentioned in Section 438 (4). In other words,anticipatory bail can be granted, having regard to all thecircumstances, in respect of all offences. At the same time, ifthere are indications in any special law or statute, which excluderelief under Section 438 (1) they would have to be duly considered.H

There can be no inflexible time frame for which an order ofanticipatory bail can continue. [Para 68][115G-H, 116A, B-C]

Re Question No. 2:Whether the life of an anticipatory bailshould end at the time and stage when the accused is summoned bythe court.

2.7 The observations about the width and amplitude of thepower under Section 438, made in answer to the first question,are equally relevant here too. In the present context, further,the judgment and observations of this Court in its interpretationof Section 167(2) are telling. It was held in Gursharan Singh, therelease by grant of bail of an accused under Section 167(2)amounts to “deemed bail”. This is borne out by Section 167(2)which states that anyone released on bail under its provision“shall be deemed to be so released under the provisions of ChapterXXXIII for the purposes of that Chapter.” The judgment in AslamBabalal Desai clarified that when an accused is released byoperation of Section 167(2) and subsequently, charge-sheet isfiled, there is no question of the cancellation of his bail. In thesecircumstances, the mere fact that an accused is given relief underSection 438 at one stage, per se does not mean that upon thefiling of charge-sheet, he is necessarily to surrender or/andapply for regular bail. The analogy to ‘deemed bail’ under Section167(2) with anticipatory bail leads this court to conclude that themere subsequent event of the filing of charge-sheet cannotcompel the accused to surrender and seek regular bail. As amatter of fact, interestingly, if indeed, charge-sheet is filed wherethe accused is on anticipatory bail, the normal implication wouldbe that there was no occasion for the investigating agency or thepolice to require his custody, because there would have beennothing in his behavior requiring such step. In other words, anaccused, who is granted anticipatory bail would continue to be atliberty when the charge sheet is filed, the natural implication isthat there is no occasion for direction by the Court that he bearrested and further that he had cooperated with the investigation.At the same time, however, at any time during the investigationwere any occasion to arise calling for intervention of the courtfor infraction of any of the conditions imposed under Section 437(3)

ABC

Aread with Section 438(2) or the violation of any other conditionimposed in the given facts of case, recourse can always be hadunder Section 439(2). [Para 70][117D-H, 118A-C]

2.8 Section 438 (3) states that when person is grantedanticipatory bail, is later arrested without warrant by an officer inBcharge of police station “on such accusation”, and is willing togive bail, “he shall be released on bail; and if Magistrate takingcognizance of such offence decides that warrant should issue inthe first instance against that person he shall issue bailable warrantin conformity with the direction of the Court under sub-section (1)”.The order granting anticipatory bail, is also- as noticed earlier,Cand in several previous decisions, “direction” under this Section438 “that in the event of such arrest” the applicant be released onbail.Therefore, when an accused in fact is granted bail, and theconditions outlined in Section 438 (2) are included as part of thedirection “to release” him in the event of arrest, all the necessaryDconditions which he is obliged to follow exist. Section 438 (3)outlines the steps to be taken, in the event of arrest of one whohas been granted relief under Section 438 (1). In the event of non-compliance with any or all conditions, imposed by the court, theconcerned agency or the police, direction can be sought fromthe court under Section 439 (2). [Para 71][118C-F]E2.9 Unless circumstances to the contrary: in the form ofbehaviour of the accused suggestive of his fleeing from justice,or evading the authority or jurisdiction of the court, or hisintimidating witnesses, or trying to intimidate them, or violateany condition imposed while granting anticipatory bail, the lawFdoes not require the person to surrender to the court uponsummons for trial being served on him. Subject to compliancewith the conditions imposed, the anticipatory bail given to aperson, can continue till end of the trial. [Para 76][123F-G, 124A]

2.10 Answers to the reference:G

(1) Question No.1- The protection granted under Section438 Cr.PC should not always or ordinarily be limited to fixedperiod; it should inure in favour of the accused without anyrestriction as to time. Usual or standard conditions under Section

437 (3) read with Section 438 (2) should be imposed; if there arepeculiar features in regard to any crime or offence (such asseriousness or gravity etc.), it is open to the court to impose anyappropriate condition (including fixed nature of relief, or its beingtied to an event or time bound) etc.

(2) Question No. 2- The life of an anticipatory bail does notend generally at the time and stage when the accused is summonedby the court, or after framing charges, but can also continue tillthe end of the trial. However, if there are any special or peculiarfeatures necessitating the court to limit the tenure of anticipatorybail, it is open for it to do so. [Para 77][124B-C, D-E]

2.11 In conclusion, it would be useful to remind oneselfthat the rights which the citizens cherish deeply, are fundamental-it is not the restrictions that are fundamental. Joseph Story, thegreat jurist and US Supreme Court judge, remarked that “personalsecurity and private property rest entirely upon the wisdom, thestability, and the integrity of the courts of justice.” The history ofour republic – and indeed, the freedom movement has shownhow the likelihood of arbitrary arrest and indefinite detentionand the lack of safeguards played an important role in rallyingthe people to demand independence.

Witness the Rowlatt Act, the nationwide protests againstit, the Jallianwalla Bagh massacre and several other incidents,where the general public were exercising their right to protestbut were brutally suppressed and eventually jailed for long. Thespecter of arbitrary and heavy-handed arrests: too often, to harassand humiliate citizens, and oftentimes, at the interest of powerfulindividuals (and not to further any meaningful investigation intooffences) led to the enactment of Section 438. Despite severalLaw commission reports and recommendations of severalcommittees and commissions, arbitrary and groundless arrestscontinue as pervasive phenomenon. Parliament has not thoughtit appropriate to curtail the power or discretion of the courts, ingranting pre-arrest or anticipatory bail, especially regarding theduration, or till charge sheet is filed, or in serious crimes.Therefore, it would not be in the larger interests of society if thecourt, by judicial interpretation, limits the exercise of that power:

Athe danger of such an exercise would be that in fractions, little bylittle, the discretion, advisedly kept wide, would shrink to verynarrow and unrecognizably tiny portion, thus frustrating theobjective behind the provision, which has stood the test of time,these 46 years. [Paras 79, 80][127A-F]

BShri Gurbaksh Singh Sibbia and others v. State of Punjab(1980) 2 SCC 565 : [1980] 3 SCR 383; Chandra Mohan v.State of Uttar Pradesh & Ors [1967] 1 SCR 77; Reserve Bankof India v. Peerless General Finance and Investment Co. Ltd.& Ors. (1987) 1 SCC 424 : [1987] 2 SCR 1; Directorate ofEnforcement v Deepak Mahajan (1994) 3 SCC 440 : [1994]C1 SCR 445; State of Haryana & Ors. v. Sampuran Singh &Ors. (1975) 2 SCC 810 : [1976] 1 SCR 626; Dolat Ram vState of Haryana [1995] 1 SCC 349 : [1994] 6 Suppl. SCR69 – relied on.Salauddin Abdulsamad Shaikh v. State of Maharashtra (1996)D1 SCC 667 : [1995] 6 Suppl. SCR 556; K.L. Verma v. State &Anr (1998) 9 SCC 348; Sunita Devi v. State of Bihar & Anr(2005) 1 SCC 608 : [2004] 6 Suppl. SCR 707; Adri DharanDas v. State of West Bengal (2005) 4 SCC 303 : [2005] 2SCR 188; Nirmal Jeet Kaur v. State of M.P. & Anr (2004) 7ESCC 558 : [2004] 3 Suppl. SCR 1006; HDFC Bank Limitedv. J.J. Mannan (2010) 1 SCC 679 : [2009] 16 SCR 590;Satpal Singh v. the State of Punjab (2018) SCC Online (SC415); Naresh Kumar Yadav v Ravindra Kumar (2008) 1 SCC632 : [2007] 11 SCR 615; Siddharam Satlingappa Mhetre v.State of Maharashtra & Ors (2011) 1 SCC 694 : [2010] 15FSCR 201; Bhadresh Bipinbhai Sheth v. State of Gujarat &Anr (2016) 1 SCC 152 : [2015] 10 SCR 398 – overruled.

Dataram Singh v. State of U.P (2018) 3 SCC 22; GurcharanSingh v State (Delhi Admn) (1978) 1 SCC 118 : [1978] 2SCR 358; Aslam Babalal Desai v State of Maharastra (1992)G4 SCC 272 : [1992] 1 Suppl. SCR 545; Joginder Kumar v.State of U.P. (1994) 4 SCC 260; Lalitha Kumari v. State ofU.P (2014) 2 SCC 1 : [2013] 14 SCR 713; Arnesh Kumar v.State of Bihar (2014) 8 SCC 273 : [2014] 8 SCR 128; M.C.Abraham v. State of Maharastra (2003) 2 SCC 649 : [2002]

5 Suppl. SCR 677; Pradeep Ram v. State of Jharkhand (2019)SCC Online (SC) 825; Mithabhai Pashabhai Patel v. Stateof Gujarat (2009) 6 SCC 332 : [2009] 7 SCR 1126; State ofM.P. & Anr. v Ram Kishna Balothia & Anr. (1995) Supp (3)SCC 419 : [1995] 2 Suppl. SCR 590; Savitri Agarwal v. Stateof Maharashtra & Anr (2009) 8 SCC 325 : [2009] 10 SCR978; State of A.P. v. Bimal Krishna Kundu (1997) 8 SCC 104:[1997] 4 Suppl. SCR 412; Muraleedharan v. State of Kerala(2001) 4 SCC 638 : [2001] 3 SCR 57; Jai Prakash Singh vState of Bihar (2012) 4 SCC 379 : [2012] 5 SCR 1; GudikantiNarasimhulu v. Public Prosecutor (1978) 1 SCC 240 : [1978]2 SCR 371; P. Chidambaram v. Directorate of Enforcement(2019) 9 SCC 24; State of U.P. v Deoman Upadhyaya [1961]1 SCR 14; Vallabhdas Liladhar v Asst. Collector of Customs[1965] 3 SCR 854; Hazari Lal Das v State of West Bengal &Anr (2009) 10 SCC 652 : [2009] 14 SCR 195; Sudhir v.Maharastra 2016 (1) SCC 146 : [2015] 12 SCR 387; ArvindTiwary v. State of Bihar (2018) 8 SCC 475; Mahant ChandYogi v. State of Haryana (2003) 1 SCC 236; PadmakarTukaam Bhavnagare v. State of Maharastra (2012) 13 SCC720; X v. State of Telangana, (2018) 16 SCC 511 : [2018] 4SCR 466; Prakash Kadam & Etc. Etc. v RamprasadVishwanath Gupta & Anr (2011) 6 SCC 189 : [2011] 6 SCR800; State through C.B.I. v. Amarmani Tripathi (2005) 8 SCC21 – referred to.

Report of the Committee on Reforms of the Criminal JusticeSystem by Dr. Justice V.S. Malimath; Reports of the LawCommission of India- 41[st], 48[th], 154[th], 177[th], 203[rd] and 268[th]– referred to.

Halsbury’s Laws of England(Halsbury’s Laws of England 4[th]Edn., Vol. 11, para 166); Codex Justinianus (or ‘Code Jus’)in Book 9 titled Title 3(2); Wharton’s Law Lexicon – referredto.

PER ARUN MISHRA, INDIRA BANERJEE AND VINEET

SARAN, JJ. [CONCURRING]

3. The conclusions in Shri Gurbaksh Singh Sibbia and othersv. State of Punjab 1980 (2) SCC 565 needs reiteration and further

ABC

DEF

Athat the restrictive manner in which Section 438 of the Cr.PC hasbeen interpreted in Salauddin Abdulsamad Shaikh v. State ofMaharashtra 1996 (1) SCC 667 is incorrect. Therefore, it isagreed that Salauddin and other cases which have followed itneeds to be overruled. Similarly, the wide interpretation inSiddharam Satlingappa Mhetre v. State of Maharashtra & Ors.B2011 (1) SCC 694, i.e. that no conditions can be imposed whilegranting an order of anticipatory bail, is incorrect. Mhetre to thatextent and other judgments which have followed it are accordinglyoverruled.[128A-C]

Shri Gurbaksh Singh Sibbia and others v. State ofCPunjab (1980) 2 SCC 565 : [1980] 3 SCR 383 – reliedon.

Salauddin Abdulsamad Shaikh v. State of Maharashtra(1996) 1 SCC 667 : [1995] 6 Suppl. SCR 556;Siddharam Satlingappa Mhetre v. State of MaharashtraD(2011) 1 SCC 694 : [2010] 15 SCR 201 – overruled.

PER ARUN MISHRA, INDIRA BANERJEE, VINEETSARAN, M.R. SHAH, S. RAVINDRA BHAT, JJ. [PERCURIAM]

FINAL CONCLUSIONS:E

4. Answers to the reference:

(1) Question No.1- The protection granted to person underSection 438 Cr. PC should not invariably be limited to fixedperiod; it should inure in favour of the accused without anyFrestriction on time. Normal conditions under Section 437 (3) readwith Section 438 (2) should be imposed; if there are specific factsor features in regard to any offence, it is open for the court toimpose any appropriate condition (including fixed nature of relief,or its being tied to an event) etc.

G(2) Second question- The life or duration of an anticipatorybail order does not end normally at the time and stage when theaccused is summoned by the court, or when charges are framed,but can continue till the end of the trial. Again, if there are anyspecial or peculiar features necessitating the court to limit thetenure of anticipatory bail, it is open for it to do so.H

The following need to be kept in mind by courts, dealingwith applications under Section 438, Cr. PC:

(1) Consistent with the judgment in Shri Gurbaksh SinghSibbia and others v. State of Punjab, when person complains ofapprehension of arrest and approaches for order, the applicationshould be based on concrete facts (and not vague or generalallegations) relatable to one or other specific offence. Theapplication seeking anticipatory bail should contain bare essentialfacts relating to the offence, and why the applicant reasonablyapprehends arrest, as well as his side of the story. These areessential for the court which should consider his application, toevaluate the threat or apprehension, its gravity or seriousnessand the appropriateness of any condition that may have to beimposed. It is not essential that an application should be movedonly after an FIR is filed; it can be moved earlier, so long as thefacts are clear and there is reasonable basis for apprehendingarrest.

(2) It may be advisable for the court, which is approachedwith an application under Section 438, depending on theseriousness of the threat (of arrest) to issue notice to the publicprosecutor and obtain facts, even while granting limited interimanticipatory bail.

(3) Nothing in Section 438 Cr. PC, compels or obliges courtsto impose conditions limiting relief in terms of time, or upon filingof FIR, or recording of statement of any witness, by the police,during investigation or inquiry, etc. While considering anapplication (for grant of anticipatory bail) the court has to considerthe nature of the offence, the role of the person, the likelihood ofhis influencing the course of investigation, or tampering withevidence (including intimidating witnesses), likelihood of fleeingjustice (such as leaving the country), etc. The courts would bejustified – and ought to impose conditions spelt out in Section437 (3), Cr. PC [by virtue of Section 438 (2) ]. The need toimpose other restrictive conditions, would have to be judged ona case by case basis, and depending upon the materials producedby the state or the investigating agency. Such special or otherrestrictive conditions may be imposed if the case or cases warrant,but should not be imposed in routine manner, in all cases.Likewise, conditions which limit the grant of anticipatory bail may

Abe granted, if they are required in the facts of any case or cases;however, such limiting conditions may not be invariably imposed.

(4) Courts ought to be generally guided by considerationssuch as the nature and gravity of the offences, the role attributedto the applicant, and the facts of the case, while consideringBwhether to grant anticipatory bail, or refuse it. Whether to grantor not is matter of discretion; equally whether and if so, whatkind of special conditions are to be imposed (or not imposed) aredependent on facts of the case, and subject to the discretion ofthe court.

C(5) Anticipatory bail granted can, depending on the conductand behavior of the accused, continue after filing of the chargesheet till end of trial.

(6) An order of anticipatory bail should not be “blanket” inthe sense that it should not enable the accused to commit furtherDoffences and claim relief of indefinite protection from arrest. Itshould be confined to the offence or incident, for whichapprehension of arrest is sought, in relation to specific incident.It cannot operate in respect of future incident that involvescommission of an offence.

E(7) An order of anticipatory bail does not in any mannerlimit or restrict the rights or duties of the police or investigatingagency, to investigate into the charges against the person whoseeks and is granted pre-arrest bail.

(8) The observations in Sibbia regarding “limited custody”For “deemed custody” to facilitate the requirements of theinvestigative authority, would be sufficient for the purpose offulfilling the provisions of Section 27, in the event of recovery ofan article, or discovery of fact, which is relatable to statementmade during such event (i.e deemed custody). In such event,there is no question (or necessity) of asking the accused toGseparately surrender and seek regular bail. Sibbia had observedthat “if and when the occasion arises, it may be possible for theprosecution to claim the benefit of Section 27 of the Evidence Act inregard to discovery of facts made in pursuance of informationsupplied by person released on bail by invoking the principle statedby this Court in State of U.P. v Deoman Upadhyaya.”H

(9) It is open to the police or the investigating agency tomove the court concerned, which grants anticipatory bail, for adirection under Section 439 (2) to arrest the accused, in the eventof violation of any term, such as absconding, non-cooperatingduring investigation, evasion, intimidation or inducement towitnesses with view to influence outcome of the investigationor trial, etc.

(10) The court referred to in para (9) above is the courtwhich grants anticipatory bail, in the first instance, according toprevailing authorities.

(11) The correctness of an order granting bail, can beconsidered by the appellate or superior court at the behest ofthe state or investigating agency, and set aside on the groundthat the court granting it did not consider material facts or crucialcircumstances. This does not amount to “cancellation” in termsof Section 439 (2), Cr. PC.

(12) The observations in Siddharam Satlingappa Mhetre v.State of Maharashtra & Ors (and other similar judgments) that norestrictive conditions at all can be imposed, while grantinganticipatory bail are hereby overruled. Likewise, the decision inSalauddin Abdulsamad Shaikh v. State of Maharashtra andsubsequent decisions (including K.L. Verma v. State & Anr; SunitaDevi v. State of Bihar & Anr; Adri Dharan Das v. State of WestBengal; Nirmal Jeet Kaur v. State of M.P. & Anr; HDFC BankLimited v. J.J. Mannan; Satpal Singh v. the State of Punjab andNaresh Kumar Yadav v Ravindra Kumar) which lay down suchrestrictive conditions, or terms limiting the grant of anticipatorybail, to period of time are hereby overruled. [Para 1][128-E-H;129-A-H; 130-A-H; 131-A-D]Siddharam Satlingappa Mhetre v. State of Maharashtra(2011) 1 SCC 694 : [2010] 15 SCR 201; SalauddinAbdulsamad Shaikh v. State of Maharashtra (1996) 1SCC 667 : [1995] 6 Suppl. SCR 556; K.L. Verma v.State and another (1998) 9 SCC 348; Sunita Devi v.State of Bihar (2005) 1 SCC 608 : [2004] 6 Suppl. SCR707; Adri Dharan Das v. State of West Bengal (2005)(4) SCC 303 : [2005] 2 SCR 188; Nirmal Jeet Kaur v.

AState of M.P. (2004) 7 SCC 558 : [2004] 3 Suppl. SCR1006; HDFC Bank Limited v. J.J. Mannan (2010) 1 SCC679 : [2009] 16 SCR 590; Satpal Singh v. State ofPunjab (2018) 4 SCC 303 : [2018] 3 SCR 739; NareshKumar Yadav v Ravindra Kumar (2008) 1 SCC 632 :[2007] 11 SCR 615 – overruled.

BShri Gurbaksh Singh Sibbia and others v. State ofPunjab (1980) 2 SCC 565 : [1980] 3 SCR 383 – reliedon.

Prakash Kadam & Etc. Etc. vs Ramprasad VishwanathCGupta & Anr (2011) 6 SCC 189 : [2011] 6 SCR 800;Jai Prakash Singh v State of Bihar (2012) 4 SCC 325 :[2012] 5 SCR 1; State through C.B.I. v. AmarmaniTripathi (2005) 8 SCC 21 – referred to.

Case Law Reference

DIN THE JUDGMENT OF M.R. SHAH, J.:

SUSHILA AGGARWAL v. STATE (NCT OF DELHI)

IN THE JUDGMENT OF ARUN MISHRA, INDIRA BANERJEEEAND VINEET SARAN, JJ.

IN THE JUDGMENT OF PER CURIAM:

SUSHILA AGGARWAL v. STATE (NCT OF DELHI)

CRIMINAL APPELLATE JURISDICTION: Special LeavePetition (Criminal) Nos. 7281-7282 of 2017.

From the Judgment and Order dated 25.07.2017 and 02.08.2017of the High Court of Delhi at New Delhi in Bail Application No. 1415 of2017.

Tushar Mehta, SG, Aman Lekhi, ASG, Vikramjit Banerjee, ASG,V.Shekhar, Ms. Aishwarya Bhati, Sr. Advs., Abhay Kumar, Vineet KumarSingh, Saurabh Mishra, Ms. Vanshaja Saluja, Sanjay Kumar Tyagi, PranayRanjan, Kanu Agrawal, Ayush Anand, Shantanu Sharma, B. V. BalaramDas, Diyansh Rai, C. S. N. Mohan Rao, Lokesh Kumar Sharma, NipunSaxena, Ms. Sukanya Singh, Kartikey Kanojiya, Vivek Jain, Ms. SuchitraKumbhat, Ms. Sasha Maria Paul, Mehul M. Gupta, Dhananjay Ray,Ms. Vrinda Bhandari, Apoorv Singhal, Rajeev Dubey, A. Mishra, K.Mishra, Advs. for the appearing parties.

Harin P. Raval, K.V.Vishwanathan, Sr. Advs. (A.Cs.)

The Judgments of the Court were delivered by

M. R. SHAH, J.

1. In the light of the conflicting views of the different Benches ofvarying strength, more particularly in the cases of Shri Gurbaksh SinghSibbia and others v. State of Punjab (1980) 2 SCC 565; SiddharamSatlingappa Mhetre v. State of Maharashtra (2011) 1 SCC 694;Bhadresh Bipinbhai Sheth v. State of Gujarat (2016) 1 SCC 152 onone side and in the cases of Salauddin Abdulsamad Shaikh v. State ofMaharashtra (1996) 1 SCC 667, subsequently followed in the case ofK.L. Verma v. State and another (1998) 9 SCC 348; Sunita Devi v.

AState of Bihar (2005) 1 SCC 608; Nirmal Jeet Kaur v. State of M.P.(2004) 7 SCC 558; HDFC Bank Limited v. J.J. Mannan (2010) 1SCC 679; and Satpal Singh v. State of Punjab (2018) 4 SCC 303,the following questions are referred for consideration by larger Bench:

“(1) Whether the protection granted to person under SectionB438 Cr.P.C. should be limited to fixed period so as to enable theperson to surrender before the Trial Court and seek regular bail.

(2) Whether the life of an anticipatory bail should end at the timeand stage when the accused is summoned by the court.”

2. Shri Harin P. Raval, learned Senior Advocate appearing asCAmicus Curiae relying upon the decision of this Court in the case ofBalchand Jain v. State of M.P. (1976) 4 SCC 572 has submitted thatthough the expression “anticipatory bail” has not been defined in theCode, as observed by this Court in the aforesaid decision, “anticipatorybail” means “bail in anticipation of arrest”. It is submitted that in theDaforesaid decision, this Court has further observed that the expression“anticipatory bail” is misnomer inasmuch as it is not as if bail is presentlygranted by the Court in anticipation of arrest. It is submitted that when acompetent court grants “anticipatory bail”, it makes an order that in theevent of arrest, person shall be released on bail. It is submitted thatthere is no question of release on bail unless person is arrested and,Etherefore, it is only on arrest that the order granting “anticipatory bail”becomes operative.

2.1. Shri Raval, learned Amicus Curiae has taken us to the historicalperspective on the inclusion of Section 438 of the Cr. P.C. It is submittedthat on the recommendation of the Law Commission of India in its 41[st]FReport dated 24.09.1969, the Parliament introduced new provision inthe form of “anticipatory bail” under Section 438 of the Cr.P.C. It issubmitted that the Law Commission of India in its 41[st] Report stated inparagraph 39.9 the justification for power to grant “anticipatory bail”. Itis submitted that as per the Law Commission the necessity for grantingG“anticipatory bail” arises mainly because sometimes influential personstry to implicate their rivals in false cases for the purpose of disgracingthem or for other purposes by getting them detained in jail for somedays. It is submitted that the Law Commission further observed thatwith the accentuation of political rivalry, this tendency is showing signsof steady increase. Apart from false cases, where there are reasonable

grounds for holding that person accused of an offence is not likely toabscond, or otherwise misuse his liberty, while on bail, there seems to beno justification to require him to first submit to custody, remain in prisonfor some days, and then apply for bail.

2.2 It is further submitted that power to grant “anticipatory bail”vests only in the High Courts or the Courts of Sessions. It is submittedthat the “anticipatory bail” can be applied at different stages. It issubmitted that even in case where no FIR is lodged and person isapprehending his arrest in case the FIR is lodged, in that case, he canapply for “anticipatory bail” and after notice to the Public Prosecutorthe Court can grant “anticipatory bail”. It is submitted that even in acase where the FIR is lodged but the investigation has not yet begun,i.e., pre investigation stage, the “anticipatory bail” can be applied. It issubmitted that “anticipatory bail” can also be applied at post investigationstage. It is submitted that after exercising the discretion judiciously, theHigh Court or the Sessions Court grants “anticipatory bail” and that tooafter hearing the Public Prosecutor. It is submitted that therefore oncethe bail is granted in anticipation of the arrest, there is no reason to limitthe same till the summon is issued by the Court and/or there is no reasonto limit the period of bail in anticipation granted.2.3 Shri Harin P. Raval, learned Senior Advocate appearing asAmicus Curiae has further submitted that in the case of Gurbaksh SinghSibbia (supra), Constitution Bench of this Court has observed andheld that the facility which Section 438, Cr. P.C. affords is generallyreferred to as “anticipatory bail”, an expression which was used by theLaw Commission in its 41[st] Report. Neither the section nor its marginalnote so describes it but, the expression “anticipatory bail” is convenientmode of conveying that it is possible to apply for bail in anticipation ofarrest. It is submitted that any order of bail can, of course, be effectiveonly from the date of arrest because to grant bail as stated in Wharton’sLaw Lexicon, is to “set at liberty person arrested or imprisoned, onsecurity being taken for his appearance”. It is submitted that thus, bail isbasically release from restraint, more particularly, release from thecustody of the police. It is submitted that the act of arrest directly affectsfreedom of movement of the person arrested by the police, and speakinggenerally, an order of bail gives back to the accused that freedom oncondition that he will appear to take his trial. Taking surety, bonds andsuch other modalities are the means by which an assurance is secured

Afrom the accused that though he has been released on bail, he will presenthimself at the trial of the offence or offences of which he is charged andfor which he was arrested. It is submitted that the distinction betweenan ordinary order of bail and an order of anticipatory bail is that whereasthe former is granted after arrest and therefore means release from thecustody of the police, the latter is granted in anticipation of arrest and isBtherefore effective at the very moment of arrest. It is submitted that inother words, unlike post-arrest order of bail, it is pre-arrest legalprocess which directs that if the person in whose favour it is issued isthereafter arrested on the accusation in respect of which the direction isissued, he shall be released on bail.C

2.4 Shri Harin P. Raval, learned Senior Advocate appearing asAmicus Curiae has further submitted that however the core questionsbefore this Court are, (a) what is the life or currency of an anticipatorybail once the same has been granted by the competent court?; (b) oncean order granting anticipatory bail has been passed, whether the saidDanticipatory bail only survives till the stage of filing of charge sheet/challan/final report or whether it subsists during the entire duration oftrial?. It is further submitted by Shri Raval that one another questionmay arise, namely, in case where if new incriminating materials arefound during the course of investigation, whether they could be relied onby the Court to cancel anticipatory bail which has already been granted?E

2.5 It is submitted that, as such, the aforesaid questions are notres integra in view of the decision of the Constitution Bench of thisCourt in the case of Gurbaksh Singh Sibbia (supra). It is submittedthat in the case of Gurbaksh Singh Sibbia (supra), ConstitutionBench of this Court has held that there is no limit to the currency of anForder of anticipatory bail. The Court is vested with absolute discretion todirect the duration of the trial which can vary from few weeks to evensuch duration until charge sheet has been filed and which may also extendto the entire duration of the trial. It is submitted that it is further observedthat the sole consideration must be with view to balance the twoGcompeting interests, viz., protecting the liberty of the accused and thesovereign power of the police to conduct fair investigation. Shri Raval,learned Amicus Curiae has heavily relied upon the observations madeby the Constitution Bench of this Court in paragraphs 42 & 43 ofGurbaksh Singh Sibbia (supra).

2.6 It is further submitted by Shri Raval that in the subsequentdecision of this Court in the case of Siddharam Satlingappa Mhetre(supra), this Court has taken the view that the order of anticipatory bailonce granted ordinarily subsists during the entire duration of the trial. Itis submitted that it is further observed that by that the power of theSessions Court or that of the High Court to re-visit its order grantinganticipatory bail is curtailed, in case circumstances exist or newexigencies arise which merit interference. Heavy reliance is placed uponobservations made by this Court in the case of Siddharam SatlingappaMhetre (supra) in paragraphs 94, 95, 98, 100, 122 and 123.

It is submitted by Shri Raval that however, the judgment renderedin Siddharam Satlingappa Mhetre (supra) particularly in paragraphs95, 108, 122 and 123 does not take into consideration the observations ofthe Constitution Bench in Gurbaksh Singh Sibbia (supra) in paragraphs42 & 43, which clearly cull out that the discretion of the Sessions Courtor High Court is wide enough to limit as well as specify the duration ofthe anticipatory bail taking into account all relevant factors which maypersuade the discretion of the Court. It is submitted that SiddharamSatlingappa Mhetre (supra) proceeded to hold that the anticipatorybail shall subsists during the entire currency of the trial and specificallyrejected the notion that anticipatory bail could be for limited time aswell, on the expiry of which the accused must surrender and apply for aregular bail. It is submitted that in view of the conflicting approach, thedecision rendered in the case of Siddharam Satlingappa Mhetre(supra)particularly the observations made in paragraphs 95, 108, 122 &123 need to be revisited.

2.7 It is further submitted by Shri Raval, learned Amicus Curiaethat the discretion of the Sessions Court and the High Court is absolute,and no limitations whatsoever have been imposed by the legislature. It issubmitted that the discretion therefore can be exercised to even limit theduration of the anticipatory bail, in order to ensure that the accused alsocooperates with the investigation, or that relevant discoveries to secureincriminating material could be made under Section 27 of the EvidenceAct, or in view of new incriminating circumstances which establishcomplicity of the accused. It is submitted that therefore the view takenby this Court in Siddharam Satlingappa Mhetre (supra) that theanticipatory bail to subsist for the entire duration of the trial, curtails thediscretion of the Sessions Court or the High Court to limit such duration

Aof anticipatory bail. It is submitted that such an interpretation is in absolutecontravention of the law declared by the Constitution Bench in the caseof Gurbaksh Singh Sibia (supra).

2.8 Making the above submissions and relying upon the aforesaiddecisions of the Constitution Bench of this Court, Shri Raval, learnedBAmicus Curiae has concluded as under:

1) that the power vested by the Parliament on superior criminalcourts in the order of hierarchy, such as Sessions Court and High Court,is power entailing conferment of absolute discretion in deciding whetheran application for anticipatory bail may be allowed or rejected, and alsoCinheres in this discretion, the additional power to limit the duration ofanticipatory bail to any point in time, or to any stage as the Courts maydeem fit in the facts and circumstances of the case, and in view of allthe attending circumstances;2) that the order granting anticipatory bail will not interdict theDpower of the investigating agency to continue investigation of the caseor would prevent the investigating agency to ask for and be granted,respectively, Police Custody of the accused for the purposes of theinvestigation and where the investigating officer feels that the custodyof the accused is necessary. Further since police custody can be grantedonly in the first 14 days of the arrest, the decision to restrict the durationEof the bail would balance the twin competing interest, viz., the individualliberty and the sovereign power of the police to investigate the case;

3) that the life of the order granting anticipatory bail can berestricted, which may be at stage till either the FIR is filed in caseswhere such order is granted on an reasonable apprehension of beingFarrested in relation to cognizable case, where the FIR or Complaint isyet not filed; in cases where FIR or complaint is filed, it may be restrictedto period of ten days after arrest (since it leaves period of 4 days forthe investigation agency to get police custody, within the outer limit of 14days) and then leave it open for the accused so released on anticipatoryGbail to apply for regular bail under Section 437/439; alternatively suchorder may endure till filing of charge sheet which has to be filed within90 days of the arrest. It may be remembered here that non-filing ofcharge sheet within 90 days of arrest entitles the accused, statutory bailor default bail, as matter of right, in view of express stipulation containedin Section 167 of the Code of Criminal Procedure, 1973. Also, in case

where an accused is released on anticipatory bail, the investigationauthorities may not be subjected to adherence to filing of charge sheetwithin 90 days as there would be no consequence as the accused isalready enlarged on bail. It may therefore be safer to adhere to theearlier practice evolved by judicial precedents to restrict the operationof life of the order granting anticipatory bail for 10 days of arrest, leavingit open to the accused to apply for regular bail under Section 437/439 ofthe Code and equally leaving it open for the Court to consider such anapplication without in any way being influenced by the fact of grant ofanticipatory bail, as at that stage the considerations are at very earlystage where the investigation itself may be in nascent stage or thematerials are yet to be gathered and the accused is yet to be interrogated;and

4) that anticipatory bail once granted can also be cancelled, eitherin appeal to superior forum on challenge being made or by the samecourt on establishment of well accepted and legally enshrined principlesrelating to cancellation of bail.

3. Shri K.V. Vishwanathan, learned Senior Advocate who wasalso requested to assist us as an Amicus Curiae has submitted that theexercise of power under Section 438 is exactly like the exercise of powerunder Sections 437 and 439 of the Cr.P.C. It is submitted therefore, thepre-arrest bail granted in anticipation of arrest under Section 438 oughtto operate like any other order granting bail till an order of conviction ortill an affirmative direction is passed under Section 439(2) of the Cr.P.C.It is submitted that therefore the law laid down by this Court in the casesof Gurbaksh Singh Sibbia (supra) and Siddharam SatlingappaMhetre (supra) lay down the correct law. It is submitted that theexceptions carved out in Gurbaksh Singh Sibbia (supra) particularlyin paras 19, 42 and 43 are well within the scheme of the Code.3.1 It is further submitted by Shri Vishwanathan, learned AmicusCuriae that the power of arrest of the police is under Section 41 of theCr.P.C. It is submitted that this Section has two essential parts. One,relating to offences in which the maximum punishment can extend toimprisonment for seven years. Second, relating to offences in which themaximum punishment can extent to imprisonment above seven years ordeath penalty. It is submitted that though they have different conditionsand thresholds, in both cases it is clear from bare reading of the sectionthat the power of arrest cannot be exercised in every FIR that is

Aregistered under Section 154 Cr.P.C. It is submitted that this power iscircumscribed by the conditions laid down in this Section. Moreover, thisprinciple that the power of arrest is not required to be exercised in everycase was recognised in the cases of Joginder Kumar v. State of U.P.(1994) 4 SCC 260 (para 20); Lalitha Kumari v. State of U.P. (2014)2 SCC 1 (paras 107-108); and Arnesh Kumar v. State of Bihar (2014)B8 SCC 273 (paras 5 and 6). It is submitted that, in fact, this Court inthe case of M.C. Abraham v. State of Maharashtra (2003) 2 SCC649 (para 15) has held that it was not mandatory for the police toarrest person only because his/her anticipatory bail had been rejected.

3.2 It is further submitted by Shri Vishwanathan, learned AmicusCCuriae that the power of arrest is then further circumscribed by Section438 Cr.P.C. It is submitted that as recognized by the Law Commission,there are cases where the power of arrest is not required or allowed tobe exercised. It is submitted that exercising power of arrest in suchcases would be grave violation of person’s right and liberty. It isDsubmitted that such exercise of power would amount to misuse of Section41. It is submitted that the check on the power of arrest and custodyprovided by Sections 437 or 439 is limited as the check is only postfacto. It is submitted that by then the person arrested has alreadysuffered the trauma and humiliation of arrest.

E3.3 It is further submitted that to safeguard this situation, Section438 was introduced so as to provide for judicial intervention in necessarycases. It is submitted that this judicial intervention is to ensure that thepower of arrest is regulated under the scrutiny of the courts. It is submittedthat to strike further balance between the power of arrest and therights of the accused, this power was specifically given to the Court ofFSession and the High Court so as to ensure that this judicial interventionis done at the supervisory level and not at the magisterial level. It issubmitted that it is in this light that the two questions raised in the presentreference need to be addressed.

3.4 Taking us to the recommendations in the 41[st] Report of theGLaw Commission and the observations made in the Report of theCommittee on Reforms of the Criminal Justice system, headed by Dr.Justice V.S. Malimath, it is submitted by Shri Vishwanathan that Section438 is check on the power of arrest of the police. It is submitted that asstated in the above Law Commission Report, it is check not only againstHfalse cases, but also in cases where the need to arrest does not arise.

3.5 It is further submitted that even otherwise bare reading ofthe Section shows that there is nothing in the language of the Sectionwhich goes to show that the pre-arrest bail granted under Section 438has to be time-bound. It is submitted that the position is the same as inSections 437 and 439. It is submitted that at this stage Section 438(3) isrelevant to be taken into consideration. It is submitted that there are twovery important aspects in Section 438(3) Cr.P.C. which are relevant tobe considered to understand the scheme of the Code, viz., (a) personin whose favour pre-arrest bail order has been made under Section438 has first to be arrested. Such person is then released on bail on thebasis of the pre-arrest bail order. For such release the person has tocomply with the requirement of Section 441 of giving bond or surety;and (b) where the magistrate taking cognizance under Section 204 is ofthe view that warrant is required to be issued at the first instance, suchmagistrate is only empowered to issue only bailable warrant and not anon-bailable warrant. This curtailment of power of the magistrate clearlyshows the intent of the legislature that person who has been grantedbail under Section 438 ought not to be arrested at the stage of cognizancebecause of the said pre-arrest bail order. It is submitted that in light ofthis express provision, no other interpretation is possible to be given tothe said section. It is submitted that the second question referred hereinis squarely covered by this sub-section.

3.6 It is further submitted by Shri Vishwanathan, learned AmicusCuriae that the order passed under Section 438, which is in the nature ofa pre-arrest bail order, is however subject to the power granted to theCourt of Session and the High Court under Section 439(2), Cr.P.C., whichgives power to the Court of Session or the High Court to direct thearrest of the accused at any time. It is submitted that this ensures thatthrough judicial intervention the balance between the two competingprinciples can again be revisited if the need arises. It is submitted thatthe only difference is that the power of arrest in these cases is exercisedonly after judicial scrutiny. It is submitted that in any case and as observedby this Court in Gurbaksh Singh Sibbia (supra), the orders once passedunder Section 438 will continue till the trial unless in exercise of judicialdiscretion the Sessions Court or the High Court limits the same, lookingto the facts and circumstances of the case and the stages at which thepower under Section 438 Cr.P.C. is exercised. It is submitted that theCode presupposes that the order passed under Sections 438 or 439 arenot or cannot be temporary time bound. It is submitted that person in

Awhose favour an order of pre-arrest bail is passed can be taken intocustody thereafter only when specific direction is passed under Section439(2) of the Code.

3.7 Shri Vishwanathan, learned Amicus Curiae, while making theaforesaid submissions and relying upon the aforesaid decisions of thisBCourt, has concluded that the pre-arrest bail granted under Section 438of the Code is exactly like the orders of bail passed under Sections 437and 439 of the Code; the Code does not contemplate any power in thehands of the Courts to pass time-bound orders under Section 438 forgood reason; on the other hand, the investigating agency can approachthe Court under Section 439(2) and in the event of the police making outCa case, the Court has all the powers to direct the accused to be takeninto custody.4. Shri Tushar Mehta, learned Solicitor General of India has heavilyrelied upon paras 42 and 43 of Gurbaksh Singh Sibbia (supra) andhas submitted that as observed and held by the Constitution Bench ofDthis Court that the Court can in given case and for justifiable reasonslimit the period of anticipatory bail. It is submitted that this Court in thecase of Siddharam Satlingappa Mhetre (supra) has misread thejudgment in Gurbaksh Singh Sibbia (supra) to limited extent. It issubmitted that to the extent Siddharam Satlingappa Mhetre (supra)Estates that “in view of the clear declaration of the law by the ConstitutionBench, the life of the order under Section 438 Cr.P.C. granting bail cannotbe curtailed”, may not be correct law in light of the observations made inpara 42 by the Constitution Bench in Gurbaksh Singh Sibbia (supra).It is submitted that the Constitution Bench in Gurbaksh Singh Sibbia(supra) has not categorically barred anticipatory bail order for limitedFtime period, and at the same time, merely stated that “normal rule” shouldbe not to limit the time period. It is submitted that at the same time, thedecision of this Court in the case of Salauddin Abdulsamad Shaikh(supra), to the extent it states that the order of the anticipatory bail hasto be necessarily limited in time frame is against the decision of theGConstitution Bench in Gurbaksh Singh Sibbia (supra), whichspecifically states that the “normal rule” to not limit the order ofanticipatory bail. It is submitted that therefore the extreme views onboth side in Siddharam Satlingappa Mhetre (supra) and SalauddinAbdulsamad Shaikh (supra), to that limited extent, do not consider theobservations in Gurbaksh Singh Sibbia (supra), in the correct light. ItH

is submitted that in case, with justifiable reasons, to be recorded inwriting, indicating reasons to deviate from the “normal rule”, theanticipatory bail can be granted for limited time period, the life ofwhich, would extinguish accordingly.

4.1 It is further submitted by Shri Tushar Mehta, learned SolicitorGeneral of India that so far as the second reference, namely, whetherthe life of an anticipatory bail should end at the time and stage when theaccused is summoned by the court is concerned, it is submitted thatthere cannot be straightjacket formula. It is submitted that in casewherein the anticipatory bail is granted for limited time period, the lifewould extinguish accordingly. It is submitted that in case wherein theanticipatory bail is granted without conditions, the life may terminateupon the circumstances warranting cancellation of such bail or suchinterference. It is submitted that the statute does not contemplate anautomatic cancellation upon filing of charge sheet and therefore thejudgment of this Court in the case of HDFC Bank Limited (supra), tothat extent, may not lay down the correct law. It is submitted that, at thesame time, the Hon’ble Courts have deprecated the practice of blanketorders of bail/anticipatory bail. It is submitted that there are eventualitiesarising in every case may be different and therefore are required to bedealt with accordingly, in the facts and circumstances of each case. It issubmitted that even while granting the anticipatory bail, the right of theinvestigating agency to seek custodial interrogation cannot be hamperedmechanically.

5. Relying upon the decisions of this Court in the cases of HDFCBank Ltd. (supra) and Satpal Singh (supra), it is submitted by ShriVikramjit Banerjee, learned Additional Solicitor General of India that asheld by this Court in the aforesaid decisions, the purpose of Section 438is providing protection only during the process of investigation and theaccused should seek regular bail upon submission of the charge sheetagainst him from the court where entire material is placed. It is submittedthat in any case grant of the pre-arrest bail under Section 438 Cr.P.C.shall not affect the right of the investigating agency to seek custodialinterrogation and in conducting further investigation.5.1 It is further submitted by Shri Banerjee, learned ASG that asheld by this Court in the case of Uday Mohanlal Acharya v. State ofMaharashtra (2001) 5 SCC 453, that even when accused is found tobe on bail at the stage of committal proceedings, the committing Magistrate

Ahas the power to cancel the bail and commit him to custody, if he considersit necessary to do so. It is submitted that as observed and held by thisCourt in the aforesaid decisions that an interpretation that an order ofprotection from arrest under Section 438 will remain operational till theend of the trial will effectively make Section 209 (b) of Cr.P.C. otiose.

B5.2 At the end, Shri Banerjee, learned ASG has submitted thatthere should necessarily be conditions imposed in granting pre-arrestbail order and it cannot be blanket order; in terms of the Cr.P.C. underSection 209(b) and Section 240(2), the accused can be remanded tocustody by the Magistrate during the stage of inquiry, if he considers itnecessary to do so at the stage of the submission of the final report/Ccharge sheet or committal proceedings. It is submitted that it is imperativetherefore that if the accused takes pre-arrest bail during the earlier stateof criminal investigation, the power of the Magistrate under the saidprovisions of Cr.P.C. should be maintained including the power of theMagistrate to send the accused to the custody.D

6. Shri C.S.N. Mohan Rao, learned Advocate appearing on behalfof respondent no.2 has vehemently submitted that the Constitution Benchjudgment in Gurbaksh Singh Sibbia (supra) has dealt with variousaspects of anticipatory bail and preserved the discretionary power grantedby the legislature on the courts while considering application forEanticipatory bail. It is submitted that the Constitution Bench has refusedto impose any limitation or conditions, which are not imposed by theParliament.

6.1 It is further submitted by the learned Counsel appearing onbehalf of respondent no.2 that the decision of the Constitution BenchFregarding duration of anticipatory bail is not called in question by anyjudgment. It is submitted that there is clear conflict regarding theduration of anticipatory bail as enunciated by the Constitution Benchand the order in Salauddin Abdulsamad Shaikh (supra), which wasfollowed in number of subsequent judgments. It is submitted that thedecision of this Court in Salauddin Abdulsamad Shaikh (supra) andGsubsequent judgments following Salauddin Abdulsamad Shaikh(supra) are all per incuriam.

6.2 It is further submitted by the learned Counsel appearing onbehalf of respondent no.2 that as normal rule, it is not required to limitthe duration of anticipatory bail. It is submitted that however, court whileH

granting anticipatory bail may, keeping in view the peculiar facts andcircumstances of the case, limit the duration of anticipatory bail. It issubmitted that the life of anticipatory bail would not end on filing ofcharge sheet.

6.3 It is further submitted by the learned counsel appearing onbehalf of respondent no.2 that both the questions of law framed forconsideration by the larger Bench does not arise for consideration. It issubmitted that considering the elaborate reasons given by the ConstitutionBench in not putting any fetters or limitations on the discretionary powerof court to grant anticipatory bail and as there is no ambiguity in thejudgment of the Constitution Bench, this Court may reiterate the judgmentof the Constitution Bench in Gurbaksh Singh Sibbia (supra).

7. We have heard the learned counsel for the respective partiesat length.

In the light of the conflicting views of the different Benches ofvarying strength, the following questions are referred for considerationby larger Bench:

“(1) Whether the protection granted to person under Section438 Cr.P.C. should be limited to fixed period so as to enable theperson to surrender before the Trial Court and seek regular bail.

(2) Whether the life of an anticipatory bail should end at the timeand stage when the accused is summoned by the court.”

7.1 At the outset, it is required to be noted that as such the expression“anticipatory bail” has not been defined in the Code. As observed by thisCourt in the case of Balchand Jain (supra), “anticipatory bail” means“bail in anticipation of arrest”. As held by this Court, the expression“anticipatory bail” is misnomer inasmuch as it is not as if bail is presentlygranted by the Court in anticipation of arrest. An application for“anticipatory bail” in anticipation of arrest could be moved by the accusedat stage before an FIR is filed or at stage when FIR is registered butthe charge sheet has not been filed and the investigation is in progress orat stage after the investigation is concluded. Power to grant “anticipatorybail” under Section 438 of the Cr.P.C. vests only with the Court of Sessionsor the High Court. Therefore, ultimately it is for the concerned court toconsider the application for “anticipatory bail” and while granting the“anticipatory bail” it is ultimately for the concerned court to impose

Aconditions including the limited period of “anticipatory bail”, dependsupon the stages at which the application for anticipatory bail is moved. Aperson in whose favour pre-arrest bail order is made under Section438 of the Cr.P.C. has to be arrested. However, once there is an orderof pre-arrest bail/anticipatory bail, as and when he is arrested he has tobe released on bail. Otherwise, there is no distinction or differenceBbetween the pre-arrest bail order under Section 438 and the bail orderunder Section 437 & 439 of the Cr.P.C. The only difference betweenthe pre-arrest bail order under Section 438 and the bail order underSections 437 and 439 is the stages at which the bail order is passed. Thebail order under Section 438 of the Cr.P.C. is prior to his arrest and inCanticipation of his arrest and the order of bail under Sections 437 and439 is after person is arrested. bare reading of Section 438 of theCr.P.C. shows that there is nothing in the language of the Section whichgoes to show that the pre-arrest bail granted under Section 438 has to betime bound. The position is the same as in Section 437 and Section 439of the Cr.P.C.D

7.2 While considering the issues referred to larger Bench,referred to hereinabove, the decision of the Constitution Bench of thisCourt in Gurbaksh Singh Sibbia (supra) is required to be referred toand considered in detail. The matter before the Constitution Bench inthe case of Gurbaksh Singh Sibbia (supra) was arising out of theEdecision of the Full Bench of the Punjab and Haryana High Court. TheHigh Court rejected the application for bail after summarising, whataccording to it was the true legal position, thus,

“(1) The power under Section 438, Criminal Procedure Code, isof an extraordinary character and must be exercised sparinglyFin exceptional cases only;

(2) Neither Section 438 nor any other provision of the Codeauthorises the grant of blanket anticipatory bail for offencesnot yet committed or with regard to accusations not so farlevelled.

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

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

(5) Where legitimate case for the remand of the offender tothe police custody under Section 167(2) can be made out bythe investigating agency or reasonable claim to secureincriminating material from information likely to be receivedfrom the offender under Section 27 of the Evidence Act canbe made out, the power under Section 438 should not beexercised.

(6) The discretion under Section 438 cannot be exercised withregard to offences punishable with death or imprisonmentfor life unless the court at that very stage is satisfied thatsuch charge appears to be false or groundless.

(7) The larger interest of the public and State demand that inserious cases like economic offences involving blatantcorruption at the higher rungs of the executive and politicalpower, the discretion under Section 438 of the Code shouldnot be exercised; and

(8) Mere general allegations of mala fides in the petition areinadequate. The court must be satisfied on materials beforeit that the allegations of mala fides are substantial and theaccusation appears to be false and groundless.”

7.3 After considering the scheme of “anticipatory bail” underSection 438, Cr.P.C. and while not agreeing with the Full Bench, thisCourt has observed and held as under:

“12. …..By any known canon of construction, words of widthand amplitude ought not generally to be cut down so as toread into the language of the statute restraints and conditionswhich the legislature itself did not think it proper or necessaryto impose. This is especially true when the statutory provisionwhich falls for consideration is designed to secure valuableright like the right to personal freedom and involves theapplication of presumption as salutary and deep grainedin our criminal jurisprudence as the presumption ofinnocence. Though the right to apply for anticipatory bailwas conferred for the first time by Section 438, while enactingthat provision the legislature was not writing on clean slatein the sense of taking an unprecedented step, insofar as theright to apply for bail is concerned. It had before it two cognate

provisions of the Code: Section 437 which deals with thepower of courts other than the Court of Session and the HighCourt to grant bail in non-bailable cases and Section 439which deals with the “special powers” of the High Court andthe Court of Session regarding bail…..

The provisions of Sections 437 and 439 furnished aconvenient model for the legislature to copy while enactingSection 438. If it has not done so and has departed from apattern which could easily be adopted with the necessarymodifications, it would be wrong to refuse to give to thedeparture its full effect by assuming that it was not intendedto 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 theLaw Commission which, while pointing out the necessity ofintroducing provision in the Code enabling the High Courtand the Court of Session to grant anticipatory bail, said inpara 39.9 that it had “considered carefully the question oflaying down in the statute certain conditions under whichalone anticipatory bail could be granted” but had come tothe conclusion that the question of granting such bail shouldbe left “to the discretion of the court” and ought not to befettered by the statutory provision itself, since the discretionwas being conferred upon superior courts which wereexpected to exercise it judicially. The legislature conferred awide discretion on the High Court and the Court of Sessionto grant anticipatory bail because it evidently felt, firstly, thatit would be difficult to enumerate the conditions under whichanticipatory bail should or should not be granted andsecondly, because the intention was to allow the higher courtsin the echelon somewhat free hand in the grant of relief inthe nature of anticipatory bail. That is why, departing fromthe terms of Sections 437 and 439, Section 438(1) uses thelanguage 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 further and clearermanifestation of the same legislative intent to confer widediscretionary power to grant anticipatory bail. It providesthat the High Court or the Court of Session, while issuing

direction for the grant of anticipatory bail, “may include suchconditions in such directions in the light of the facts of theparticular case, as it may think fit”, including the conditionswhich are set out in clauses (i) to (iv) of sub-section (2). Theproof of legislative intent can best be found in the languagewhich the legislature uses. Ambiguities can undoubtedly beresolved by resort to extraneous aids but words, as wide andexplicit as have been used in Section 438, must be given theirfull effect, especially when to refuse to do so will result inundue impairment of the freedom of the individual and thepresumption of innocence. It has to be borne in mind thatanticipatory bail is sought when there is mere apprehensionof arrest on the accusation that the applicant has committeda non- bailable offence. person who has yet to lose hisfreedom by being arrested asks for freedom in the event ofarrest. That is the stage at which it is imperative to protect hisfreedom, insofar as one may, and to give full play to thepresumption that he is innocent. In fact, the stage at whichanticipatory bail if generally sought brings about its strikingdissimilarity with the situation in which person who isarrested for the commission of non-bailable offence asksfor bail. In the latter situation, adequate data is available tothe court, or can be called for by it, in the light of which itcan grant or refuse relief and while granting it, modify it bythe imposition of all or any of the conditions mentioned inSection 437.13. This is not to say that anticipatory bail, if granted,must be granted without the imposition of any conditions. Thatwill be plainly contrary to the very terms of Section 438.Though sub-section (1) of that section says that the court“may, if it thinks fit” issue the necessary direction for bail,sub-section (2) confers on the court the power to include suchconditions in the direction as it may think fit in the light of thefacts of the particular case, including the conditions mentionedin clauses (i) to (iv) of that sub-section. The controversytherefore is not whether the court has the power to imposeconditions while granting anticipatory bail. It clearly andexpressly has that power. The true question is whether by aprocess of construction, the amplitude of judicial discretion

ABC

which is given to the High Court and the Court of Session, toimpose such conditions as they may think fit while grantinganticipatory bail, should be cut down by reading into thestatute conditions which are not to be found therein, like thoseevolved by the High Court or canvassed by the learnedAdditional Solicitor General. Our answer, clearly andemphatically, is in the negative. The High Court and the Courtof Session to whom the application for anticipatory bail ismade ought to be left free in the exercise of their judicialdiscretion to grant bail if they consider it fit so to do on theparticular facts and circumstances of the case and on suchconditions as the case may warrant. Similarly, they must beleft free to refuse bail if the circumstances of the case sowarrant, on considerations similar to those mentioned inSection 437 or which are generally considered to be relevantunder Section 439 of the Code.

xxxxxxxxxxxxxxxxxxxxxxxx18. According to the sixth proposition framed by theHigh Court, the discretion under Section 438 cannot beexercised in regard to offences punishable with death orimprisonment for life unless, the court at the stage of grantinganticipatory bail, is satisfied that such charge appears tobe false or groundless. Now, Section 438 confers on the HighCourt and the Court of Session the power to grant anticipatorybail if the applicant has reason to believe that he may bearrested on an accusation of having committed “a non-bailableoffence”. We see no warrant for reading into this provisionthe conditions subject to which bail can be granted underSection 437(1) of the Code. That section, while conferringthe power to grant bail in cases of non-bailable offences,provides by way of an exception that person accused orsuspected of the commission of non-bailable offence “shallnot be so released” if there appear to be reasonable groundsfor believing that he has been guilty of an offence punishablewith death or imprisonment for life. If it was intended that theexception contained in Section 437(1) should govern thegrant of relief under Section 438(1), nothing would have beeneasier for the legislature than to introduce into the lattersection similar provision. We have already pointed out thebasic distinction between these two sections. Section 437applies only after person, who is alleged to have committeda non-bailable offence, is arrested or detained without warrantor appears or is brought before court. Section 438 appliesbefore the arrest is made and, in fact, one of the pre-conditionsof its application is that the person, who applies for reliefunder it, must be able to show that he has reason to believethat “he may be arrested”, which plainly means that he is notyet arrested. The nexus which this distinction bears with thegrant or refusal of bail is that in cases falling under Section437, there is some concrete data on the basis of which it ispossible to show that there appear to be reasonable groundsfor believing that the applicant has been guilty of an offencepunishable with death or imprisonment for life. In cases fallingunder Section 438 that stage is still to arrive and, in thegenerality of cases thereunder, it would be premature andindeed difficult to predicate that there are or are notreasonable grounds for so believing. The foundation of thebelief spoken of in Section 437(1), by reason of which thecourt cannot release the applicant on bail is, normally, thecredibility of the allegations contained in the first informationreport. In the majority of cases falling under Section 438,that data will be lacking for forming the requisite belief. If atall the conditions mentioned in Section 437 are to be readinto the provisions of Section 438, the transplantation shallhave to be done without amputation. That is to say, on thereasoning of the High Court, Section 438(1) shall have to beread as containing the clause that the applicant “shall not”be released on bail “if there appear reasonable grounds forbelieving that he has been guilty of an offence punishablewith death or imprisonment for life”. In this process one shallhave overlooked that whereas, the power under Section 438(1)can be exercised if the High Court or the Court of Session“thinks fit” to do so, Section 437(1) does not confer the powerto grant bail in the same wide terms The expression “if it thinksfit”, which occurs in Section 438(1) in relation to the powerof the High Court or the Court of Session, is conspicuouslyabsent in Section 437(1). We see no valid reason for rewriting

Section 438 with view, not to expanding the scope and ambitof the discretion conferred on the High Court and the Courtof Session but, for the purpose of limiting it. Accordingly, weare unable to endorse the view of the High Court thatanticipatory bail cannot be granted in respect of offenceslike criminal breach of trust for the mere reason that thepunishment provided therefor is imprisonment for life.Circumstances may broadly justify the grant of bail in suchcases too, though of course, the court is free to refuseanticipatory bail in any case if there is material before itjustifying such refusal.

19. great deal has been said by the High Court on thefifth proposition framed by it, according to which, inter alia,the power under Section 438 should not be exercised if theinvestigating agency can make reasonable claim that it cansecure incriminating material from information likely to bereceived from the offender under Section 27 of the EvidenceAct. According to the High Court, it is the right and the dutyof the police to investigate into offences brought to their noticeand therefore, courts should be careful not to exercise theirpowers in manner which is calculated to cause interferencetherewith. ….. An order of anticipatory bail does not in any

way, directly or indirectly, take away from the police theirright to investigate into charges made or to be made againstthe person released on bail. In fact, two of the usual conditionsincorporated in direction issued under Section 438(1) arethose recommended in sub-section (2)(i) and (ii) which require

the applicant to cooperate with the police and to assure thathe shall not tamper with the witnesses during and after theinvestigation. 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 suchconditions can even be that in the event of the police makingout case of likely discovery under Section 27 of theEvidence Act, the person released on bail shall be liable tobe taken in police custody for facilitating the discovery.Besides, if and when the occasion arises, it may be possiblefor the prosecution to claim the benefit of Section 27 of theEvidence Act in regard to discovery of facts made in

pursuance of information supplied by person released onbail by invoking the principle stated by this Court in State ofU.P. v. Deoman Upadhyaya [AIR 1960 SC 1125 : (1961) 1SCR 14, 26 : 1960 Cri LJ 1504] to the effect that when aperson not in custody approaches police officerinvestigating an offence and offers to give information leadingto the discovery of fact, having bearing on the chargewhich may be made against him, he may appropriately bedeemed so have surrendered himself to the police. The broadfoundation of this rule is stated to be that Section 46 of theCode of Criminal Procedure does not contemplate anyformality before person can be said to be taken in custody:submission to the custody by word or action by person issufficient. For similar reasons, we are unable to agree thatanticipatory bail should be refused if legitimate case forthe remand of the offender to the police custody under Section167(2) of the Code is made out by the investigating agency.

20. It is unnecessary to consider the third propositionof the High Court in any great details because we have alreadyindicated that there is no justification for reading into Section438 the limitations mentioned in Section 437. The High Courtsays that such limitations are implicit in Section 438 but, withrespect, no such implications arise or can be read into thatsection. The plenitude of the section must be given its fullplay.

21. The High Court says in its fourth proposition thatin addition to the limitations mentioned in Section 437, thepetitioner must make out “special case” for the exercise ofthe power to grant anticipatory bail. This, virtually, reducesthe salutary power conferred by Section 438 to dead letter.In its anxiety, otherwise just, to show that the power conferredby Section 438 is not “unguided or uncanalised”, the HighCourt has subjected that power to restraint which will havethe effect of making the power utterly unguided. To say thatthe applicant must make out “special case” for the exerciseof the power to grant anticipatory bail is really to say nothing.The applicant has undoubtedly to make out case for thegrant of anticipatory bail. But one cannot go further and say

that he must make out “special case”. We do not see whythe provisions of Section 438 should be suspected ascontaining something volatile or incendiary, which needs tobe handled with the greatest care and caution imaginable. Awise exercise of judicial power inevitably takes care of theevil consequences which are likely to flow out of itsintemperate use. Every kind of judicial discretion, whatevermay be the nature of the matter in regard to which it is requiredto be exercised, has to be used with due care and caution. Infact, an awareness of the context in which the discretion isrequired to be exercised and of the reasonably foreseeableconsequences of its use, is the hallmark of prudent exerciseof judicial discretion. One ought not to make bugbear ofthe power to grant anticipatory bail.

22. By proposition No. 1 the High Court says that thepower conferred by Section 438 is “of an extraordinarycharacter and must be exercised sparingly in exceptional casesonly”. It may perhaps be right to describe the power as of anextraordinary character because ordinarily the bail is appliedfor under Section 437 or Section 439. These sections dealwith the power to grant or refuse bail to person who is inthe custody of the police and that is the ordinary situation inwhich bail is generally applied for. But this does not justifythe conclusion that the power must be exercised in exceptionalcases only, because it is of an extraordinary character. Wewill really be saying once too often that all discretion has tobe exercised with care and circumspection, depending oncircumstances justifying its exercise. It is unnecessary to travelbeyond it and subject the wide power conferred by thelegislature to rigorous code of self-imposed limitations.

25. ….. We agree, with respect, that the power conferredby Section 438 is of an extraordinary character in the senseindicated above, namely, that it is not ordinarily resorted tolike the power conferred by Sections 437 and 439. We alsoagree that the power to grant anticipatory bail should beexercised with due care and circumspection but beyond that,it is not possible to agree with the observations made in

Balchand Jain [(1976) 4 SCC 572 : 1976 SCC (Cri) 689 :(1977) 2 SCR 52] in an altogether different context on analtogether different point.

33. We would, therefore, prefer to leave the High Courtand the Court of Session to exercise their jurisdiction underSection 438 by wise and careful use of their discretionwhich, by their long training and experience, they are ideallysuited to do. The ends of justice will be better served by trustingthese courts to act objectively and in consonance withprinciples governing the grant of bail which are recognisedover the years, than by divesting them of their discretion whichthe legislature has conferred upon them, by laying downinflexible rules of general application. It is customary, almostchronic, to take statute as one finds it on the ground that,after all, “the legislature in its wisdom” has thought it fit touse particular expression. convention may usefully growwhereby the High Court and the Court of Session may betrusted to exercise their discretionary powers in their wisdom,especially when the discretion is entrusted to their care bythe legislature in its wisdom. If they err, they are liable to becorrected.35. Section 438(1) of the Code lays down conditionwhich has to be satisfied before anticipatory bail can begranted. The applicant must show that he has “reason tobelieve” that he may be arrested for non-bailable offence.The use of the expression “reason to believe” shows that thebelief that the applicant may be so arrested must be foundedon reasonable grounds. Mere ‘fear’ is not ‘belief”, for whichreason it is not enough for the applicant to show that he hassome sort of vague apprehension that some one is going tomake an accusation against him, in pursuance of which hemay be arrested. The grounds on which the belief of theapplicant is based that he may be arrested for non-bailableoffence, must be capable of being examined by the courtobjectively, because it is then alone that the court can

determine whether the applicant has reason to believe thathe may be so arrested. Section 438(1), therefore, cannot beinvoked on the basis of vague and general allegations, as ifto arm oneself in perpetuity against possible arrest.Otherwise, the number of applications for anticipatory bailwill be as large as, at any rate, the adult populace. Anticipatorybail is device to secure the individuals liberty; it is neither apassport to the commission of crimes nor shield againstany and all kinds of accusations, likely or unlikely

36. Secondly, if an application for anticipatory bail ismade to the High Court or the Court of Session it must applyits own mind to the question and decide whether case hasbeen made out for granting such relief. It cannot leave thequestion for the decision of the Magistrate concerned underSection 437 of the Code, as and when an occasion arises.Such course will defeat the very object of Section 438.

37. Thirdly, the filing of first information report is nota condition precedent to the exercise of the power underSection 438. The imminence of likely arrest founded on areasonable belief can be shown to exist even if an FIR is notyet filed.

38. Fourthly, anticipatory bail can be granted even afteran FIR is filed, so long as the applicant has not been arrested.

39. Fifthly, the provisions of Section 438 cannot beinvoked after the arrest of the accused. The grant of“anticipatory bail” to an accused who is under arrest involvesa contradiction in terms, insofar as the offence or offencesfor which he is arrested, are concerned. After arrest, theaccused must seek his remedy under Section 437 or Section439 of the Code, if he wants to be released on bail in respectof the offence or offences for which he is arrested.

40. We have said that there is one proposition formulatedby the High Court with which we are inclined to agree. Thatis proposition (2). We agree that ‘blanket order’ ofanticipatory bail should not generally be passed. This flowsfrom the very language of the section which, as discussedabove, requires the applicant to show that he has “reason to

believe” that he may be arrested. belief can be said to befounded on reasonable grounds only if there is somethingtangible to go by on the basis of which it can be said that theapplicant’s apprehension that he may be arrested is genuine.That is why, normally, direction should not issue underSection 438(1) to the effect that the applicant shall be releasedon bail “whenever arrested for whichever offencewhatsoever”. That is what is meant by ‘blanket order’ ofanticipatory bail, an order which serves as blanket to coveror protect any and every kind of allegedly unlawful activity,in fact any eventuality, likely or unlikely regarding which, noconcrete information can possibly be had. The rationale of adirection under Section 438(1) is the belief of the applicantfounded on reasonable grounds that he may be arrested fora non-bailable offence. It is unrealistic to expect the applicantto draw up his application with the meticulousness of apleading in civil case and such is not requirement of thesection. But specific events and facts must be disclosed bythe applicant in order to enable the court to judge of thereasonableness of his belief, the existence of which is thesine qua non of the exercise of power conferred by the section.

41. Apart from the fact that the very language of thestatute compels this construction, there is an importantprinciple involved in the insistence that facts, on the basis ofwhich direction under Section 438(1) is sought, must beclear and specific, not vague and general. It is only by theobservance of that principle that possible conflict betweenthe right of an individual to his liberty and the right of thepolice to investigate into crimes reported to them can beavoided. blanket order of anticipatory bail is bound to causeserious interference with both the right and the duty of thepolice in the matter of investigation because, regardless ofwhat kind of offence is alleged to have been committed bythe applicant and when, an order of bail which comprehendsallegedly unlawful activity of any description whatsoever, willprevent the police from arresting the applicant even if hecommits, say, murder in the presence of the public. Such anorder can then become charter of lawlessness and weaponto stifle prompt investigation into offences which could notpossibly be predicated when the order was passed. Therefore,

the court which grants anticipatory bail must take care tospecify the offence or offences in respect of which alone theorder will be effective. The power should not be exercised ina vacuum.

42. There was some discussion before us on certainminor modalities regarding the passing of bail orders underSection 438(1). Can an order of bail be passed under thesection without notice to the Public Prosecutor? It can be.But notice should issue to the Public Prosecutor or theGovernment Advocate forthwith and the question of bailshould be re-examined in the light of the respective contentionsof the parties. The ad interim order too must conform to therequirements of the section and suitable conditions should beimposed on the applicant even at that stage. Should theoperation of an order passed under Section 438(1) be limitedin point of time? Not necessarily. The court may, if there arereasons for doing so, limit the operation of the order to ashort period until after the filing of an FIR in respect of thematter covered by the order. The applicant may in such casesbe directed to obtain an order of bail under Section 437 or439 of the Code within reasonably short period after thefiling of the FIR as aforesaid. But this need not be followedas an invariable rule. The normal rule should be not to limitthe operation of the order in relation to period of time.

43. During the last couple of years this Court, whiledealing with appeals against orders passed by various HighCourts, has granted anticipatory bail to many person byimposing conditions set out in Section 438(2) (i), (ii) and (iii).The court has, in addition, directed in most of those casesthat (a) the applicant should surrender himself to the policefor brief period if discovery is to be made under Section27 of the Evidence Act or that he should be deemed to havesurrendered himself if such discovery is to be made. Incertain exceptional cases, the court has, in view of the materialplaced before it, directed that the order of anticipatory bailwill remain in operation only for week or so until after thefiling of the FIR in respect of matters covered by the order.These orders, on the whole, have worked satisfactorily,causing the least inconvenience to the individuals concerned

and least interference with the investigational rights of thepolice. The court has attempted through those orders to strikea balance between the individual’s right to personal freedomand the investigational rights of the police. The appellantswho were refused anticipatory bail by various courts havelong since been released by this Court under Section 438(1)of the Code.”

7.4 The aforesaid decision of the Constitution Bench in the caseof Gurbaksh Singh Sibbia (supra) holds the field for number of yearsand the same has been followed by all the Courts in the country. Whilegranting anticipatory bail, normally following conditions are imposed bythe court/courts which as such are in consonance with the decision ofthe Constitution Bench in the case of Gurbaksh Singh Sibbia (supra)and Section 438(2) read with Section 437(3) of the Cr.P.C:

1. the applicant namely________________ shall furnish personalbond of Rs.______________ with his recent self-attested photographand surety of the like amount on the following conditions at the satisfactionof the Investigating Officer;

2. the applicant shall remain present before the concerned policestation on ____________ between ____________________;

3. the applicant shall co-operate with the investigation and makehimself available for interrogation whenever required;

4. the applicant shall not directly or indirectly make any inducement,threat or promise to any witness acquainted with the facts of the case soas to dissuade him from disclosing such facts to the court or to anypolice officer;

5. the applicant shall not obstruct or hamper the police investigationand not to play mischief with the evidence collected or yet to be collectedby the police;

6. the applicant shall not leave the territory of ____________,without prior permission of the court, till trial is over;

7. the applicant shall mark his presence before concerned policestation on ______________ between ____________ for the period

of six months, from the date of this order;

8. the applicant shall maintain law and order;

48SUPREME COURT REPORTS

A9. the applicant shall, at the time of execution of the Bond, furnishhis address and mobile number to the Investigating Officer, and the Courtconcerned, and shall not change the residence till the final disposal ofthe case;

10. the applicant shall surrender his passport, if any, before theBInvestigating Officer within week and, if he does not possess anypassport, he shall file an affidavit to that effect before the InvestigatingOfficer;

11. the applicant shall regularly remain present during the trial,and co-operate the Honourable Court to complete the trial for the aboveCoffences.

If breach of any of the above conditions is committed, the orderof anticipatory bail would be cancelled. It would be open to theInvestigating Officer to file an application for remand, and the concernedMagistrate would decide it on merits, without influenced by the grant ofDanticipatory bail order.

However, in the case of Siddharam Satlingappa Mhetre (supra),despite the specific observations by the Constitution Bench of this Courtin Gurbaksh Singh Sibbia (supra) that the normal rule should be notto limit the operation of the order in relation to period of time, in otherEwords in an appropriate case and looking to the facts and circumstancesof the case and the stage at which the pre-arrest bail application wasmade, the court concerned can limit the operation of the order in relationto period of time, on absolute misreading of the judgment in the case ofGurbaksh Singh Sibbia (supra) and just contrary to the observationsmade in paragraphs 42 and 43, an absolute proposition of law is laidFdown that the life of the order under Section 438, Cr. P.C. granting bailcannot be curtailed. Despite the clear cut observations made by theConstitution Bench in Gurbaksh Singh Sibbia (supra) made inparagraphs 42 and 43, in the case of Salauddin Abdulsamad Shaikh(supra), three Judge Bench of this Court has observed and held thatGthe order of “anticipatory bail” has to be necessarily limit in time frame.In many cases subsequently the decision in the case of SalauddinAbdulsamad Shaikh (supra) has been followed, despite the specificobservations made by the Constitution Bench in Gurbaksh Singh Sibbia(supra) made in paragraphs 42 and 43 which, as such, are just contraryto the view taken in subsequent decisions in the cases of Siddharam

Satlingappa Mhetre (supra) and Salauddin Abdulsamad Shaikh(supra). At this stage, it is required to be noted that in the case ofSalauddin Abdulsamad Shaikh (supra), this Court had not at allconsidered the decision of the Constitution Bench in the case of GurbakshSingh Sibbia (supra). It cannot be disputed that the decision of thisCourt in the case of Gurbaksh Singh Sibbia(supra) is ConstitutionBench decision which is binding unless it is upset by larger Bench thanthe Constitution Bench. Therefore, considering the decision of theConstitution Bench of this Court in the case of Gurbaksh Singh Sibbia(supra) and the relevant observations, reproduced hereinabove, thedecision of this Court in the case of Siddharam Satlingappa Mhetre(supra) to the extent it takes the view that the life of the order underSection 438 Cr.P.C. cannot be curtailed is not correct law in light ofthe observations made by the Constitution Bench in paragraphs 42 and43 in Gurbaksh Singh Sibbia (supra). The decision of this Court in thecase of Salauddin Abdulsamad Shaikh (supra) which takes anextreme view that the order of “anticipatory bail” has to be necessarilylimited in time frame is also not good law and is against and just contraryto the decision of this Court in the case of Gurbaksh Singh Sibbia(supra), which is Constitution Bench judgment.

7.5 Thus, considering the observations made by the ConstitutionBench of this Court in the case of Gurbaksh Singh Sibbia (supra), thecourt may, if there are reasons for doing so, limit the operation of theorder to short period only after filing of an FIR in respect of the mattercovered by order and the applicant may in such case be directed toobtain an order of bail under Sections 437 or 439 of the Code within areasonable short period after the filing of the FIR. The Constitution Benchhas further observed that the same need not be followed as an invariablerule. It is further observed and held that normal rule should be not to limitthe operation of the order in relation to period of time. We are of theopinion that the conditions can be imposed by the concerned court whilegranting pre-arrest bail order including limiting the operation of the orderin relation to period of time if the circumstances so warrant, moreparticularly the stage at which the “anticipatory bail” application is moved,namely, whether the same is at the stage before the FIR is filed or at thestage when the FIR is filed and the investigation is in progress or at thestage when the investigation is complete and the charge sheet is filed.However, as observed hereinabove, the normal rule should be not tolimit the order in relation to period of time.

AS. RAVINDRA BHAT, J.

1. I have gone through the reasoning and conclusions of JusticeM.R.Shah. I am in agreement with his judgment. However, I amsupplementing the conclusions arrived at by Shah, J with this separatejudgment since I am of the view that while there is no disagreement onBthe essential reasoning, some aspects need to be discussed, in addition.

2. The following questions have been referred to this larger benchof five judges:

(1) Whether the protection granted to person under Section 438CCr. PC should be limited to fixed period so as to enable the person tosurrender before the Trial Court and seek regular bail.

(2) Whether the life of an anticipatory bail should end at the timeand stage when the accused is summoned by the court.

DBackground

3. First, background. The judgment of five-judge bench of thiscourt in Shri Gurbaksh Singh Sibbia and others v. State of Punjab[1]considered the available views on the provision for anticipatory bail (aconcept not in existence till the enactment of the Criminal ProcedureECode, 1973- hereafter “Cr. PC” or “the Code”). Section 438 enablestwo classes of courts- Court of Sessions and High Court, to issuedirections not to arrest person, who apprehends arrest. Sibbiacomprehensively dealt with the history of the provision, the felt needwhich resulted in its enactment, the observations and comments of the41[st] Report of the Law Commission, which had suggested introductionFof such provision, and the efficacy of prevailing practices. In brief,Sibbia (which this court would analyze in greater detail later) held thatthe power (to grant anticipatory bail) is cast in wide terms and shouldnot be hedged in through narrow judicial interpretation. At the sametime, the larger bench (of five judges, which decided Sibbia) ruled thatGin given individual cases, courts could impose conditions which wereappropriate, having regard to the circumstances.

4. This reference is necessitated, because in the present case, abench of three judges, on 15[th] May 2018, noticed conflicting views

regarding interpretation of the provision- Section 438. The court noticed,prima facie, that one line of judgments (Salauddin Abdulsamad Shaikhv. State of Maharashtra[2]; K.L. Verma v. State & Anr[3]; Sunita Devi v.State of Bihar & Anr[4]; Adri Dharan Das v. State of West Bengal[5];Nirmal Jeet Kaur v. State of M.P. & Anr[6]; HDFC Bank Limited v.J.J. Mannan[7]; Satpal Singh v. the State of Punjab[8 ]and Naresh KumarYadav v Ravindra Kumar[9 ]held that anticipatory bail orders shouldinvariably contain conditions, either with reference to time, or occurrenceof an event, such as filing of charge sheet, in criminal proceedings, thatwould define its time of operation, after which the individual concernedwould have to secure regular bail, under Section 439 Cr. PC. The courtalso noticed, that on the other hand, the observations in Sibbia did notsuggest such an inflexible approach. The second line of cases includedSiddharam Satlingappa Mhetre v. State of Maharashtra & Ors[10]and Bhadresh Bipinbhai Sheth v. State of Gujarat & Anr[11]; theseheld that no conditions ought to be imposed by the court, whilst grantinganticipatory bail, which was to inure and protect the individual indefinitely-even when charges were framed in given criminal case, leading totrial- till the end of the trial.

5. The court, in Sibbia, elaborately dealt with the backgroundwhich led to the introduction of the provision for anticipatory bail. It tooknote of the forty first report of the Law Commission, on whoserecommendations the provision was introduced. Sibbia traced the historyof the provision, from the stage of the recommendation, to the draft billand later its enactment, observing as follows:

“4. The CrPC, 1898 did not contain any specific provisioncorresponding to the present Section 438. Under the old Code,there was sharp difference of opinion amongst the variousHigh Courts on the question as to whether courts had theinherent power to pass an order of bail, in anticipation of

2 (1996 (1) SCC 667)3 1998 (9) SCC 3484 2005 (1) SCC 6085 2005 (4) SCC 3036 2004 (7) SCC 5587 2010 (1) SCC 6798 2018 SCC Online (SC 4159 2008 (1) SCC 63210 2011 (1) SCC 69411 2016 (1) SCC 152

Aarrest, the preponderance of view being that it did not havesuch power. The need for extensive amendments to the CrPCwas felt for long time and various suggestions were madein different quarters in order to make the Code more effectiveand comprehensive. The Law Commission of India, in its 41stReport dated September 24, 1969 pointed put the necessityBof introducing provision in the Code enabling the High Courtand the Court of Session to grant “anticipate; bail”. Itobserved in paragraph 39.9 of its report (Volume I) :

39.9. The suggestion for directing the release of person onbail prior to his arrest (commonly known as “anticipatoryCbail”) was carefully considered by us. Though there is aconflict of judicial opinion about the power of Court to-grant anticipatory bail, the majority view is that there is nosuch power under the existing provisions of the Code. Thenecessity for granting anticipatory bail arises mainly becauseDsometimes influential persons try to’ implicate their rivals infalse cases for the purpose of disgracing them or for otherpurposes by getting them detained in jail for some days. Inrecent times, with the accentuation of political rivalry, thistendency is showing signs of steady increase. Apart from falsecases, where there are reasonable grounds for holding that

person accused of an offence is not likely to abscond, orotherwise misuse his liberty while on bail, there seems nojustification to require him first to submit to custody, remainin prison for some days and then apply for bail.

We recommend the acceptance of this suggestion. We arefurther of the view that this special power should be conferredonly on the High Court and the Court of Session, and thatthe order should take effect at the time of arrest or thereafter.

In order to settle the details of this suggestion, the followingdraft of a, new section is placed for consideration :

‘497A. (1) When any person has reasonableapprehension that he would be arrested on an accusationof having committed non-bailable offence, he may applyto the High Court or the Court of Session for directionunder this section. That Court may, in its discretion, directHthat in the event of his arrest, he shall be released on bail.

(2) Magistrate taking cognizance of an offence againstthat person shall, while taking steps Under Section 204(1),either issue summons or bailable warrant as indicatedin the direction of the Court under Sub-section (1).

(3) if any person in respect of whom such direction ismade is arrested without warrant by an officer in chargeof police station on an accusation of having committedthat; offence, and is prepared either at the time of arrestor at any time while in the custody of such officer to givebail, such person shall be released on bail.”

We considered carefully the question of laying down in thestatute certain conditions under which alone anticipatory bail couldbe granted. But we found that it may not be practicable toexhaustively enumerate those conditions; and moreover, the layingdown of such conditions may be construed as prejudging (partiallyat any rate) the whole case. Hence we would leave it to thediscretion, of the; court and prefer not to fetter such discretion inthe statutory provision itself. Superior Courts will, undoubtedly,exercise their discretion properly, and not make any observationsin the order granting anticipatory bail which will have tendencyto prejudice the fair trial of the accused.’

5. The suggestion made by the Law Commission was, inprinciple, accepted by the Central Government which introducedClause 447 in the Draft Bill of the CrPC, 1970 with view toconferring an express power on the High Court and the Court ofSession to grant anticipatory bail. That Clause read thus :

‘447. (1) When any person has reason to believe that he wouldbe arrested on an accusation of having committed non-bailable offence, he may apply to the High Court or the Courtof Session for direction under this section; and that Courtmay, if it thinks fit, direct that in the event of such arrest, heshall be released on bail.

(2) If such person is thereafter arrested without warrant byan officer in charge of police station on such accusation,and is prepared either at the lime of arrest or at any timewhile in the custody of such officer to give bail, he shall bereleased on bail; and if Magistrate taking cognizance of

Asuch offence decides that warrant should issue in the firstinstance against that person, he shall issue bailable warrantin conformity with the direction of the Court under Sub-section(1).’

6. The Law Commission, in paragraph 31 of its 48th ReportB(1972), made the following comments on the aforesaid Clause.

‘31. The Bill introduces provision for the grant ofanticipatory bail. This is substantially in accordance with therecommendation made by the previous Commission. We agreethat this would be useful addition, though we must add thatCit is in very exceptional cases that such power should beexercised.

We are further of the view that in order to ensure thatthe provision is not put to abuse at the instance ofunscrupulous petitioners, the final order should be made onlyDafter notice to the Public Prosecutor. The initial order shouldonly be an interim one. Further, the relevant section shouldmake it clear that the direction can be issued only for reasonsto be recorded, and if the court is satisfied that such adirection is necessary in the interests of justice.

EIt will also be convenient to provide that notice of the interimorder as well as of the final orders will be given to theSuperintendent of Police forthwith.’

Clause 447 of the Draft Bill of 1970 was enacted with certainmodifications and became Section 438 of the CrPC, 1973Fwhich we have extracted at the outset of this judgment.”

6. The context of Sibbia was the correctness of decision of theFull Bench of the Punjab and Haryana High Court, which restrictivelyinterpreted Section 438 and held that the power under Section 438, “isextra-ordinary” and must be exercised sparingly in exceptional casesonly; that it does not empower the grant of anticipatory bail in blanketGmanner, in respect of offences not yet committed or with regard toaccusations not yet levelled; that it is not an unguided power, but subjectto limitations in Section 437 – which are implicit and must be read intoSection 438.The Full Bench also held that the petitioner must “mustmake out special case for the exercise of the power to grantHanticipatory bail”; and further that where legitimate case for remand

to police custody is made or reasonable claim to secure incriminatingmaterial from information likely to be received from the offender “underSection 27 of the Evidence Act can be made out, the power UnderSection 438 should not be exercised.” The full bench held that Section438 cannot be availed in respect of offences punishable with death orlife imprisonment “unless the court at that very stage is satisfied thatsuch charge appears to be false or groundless.” Likewise, in largerpublic interest and the state’s interest Section 438 cannot be resorted toin “economic offences involving blatant corruption at the higherrungs of the executive and political power” and that

“(8) Mere general allegation of mala fides in the petition areinadequate. The court must be satisfied on materials before itthat the allegations of mala fides are substantial and theaccusation appears to be false and groundless.”

7. Sibbia discussed this issue and held that the narrow, restrictedinterpretation of Section 438 was not warranted. The court disapprovedthe Punjab High Court Full Bench decision; the five judge Bench ruledas follows:

“…The provisions of Sections 437 and 439 furnished aconvenient model for the legislature to copy while enactingSection 438. If it has not done so and has departed from apattern which could easily be adopted with the necessarymodifications, it would be wrong to refuse to give to thedeparture its full effect by assuming that it was not intendedto 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 theLaw Commission which, while pointing out the necessity ofintroducing provision in the Code enabling the High Courtand the Court of Session to grant anticipatory bail, said inpara 39.9 that it had “considered carefully the question oflaying down in the statute certain conditions under whichalone anticipatory bail could be granted” but had come tothe conclusion that the question of granting such bail shouldbe left “to the discretion of the court” and ought not to befettered by the statutory provision itself, since the discretionwas being conferred upon superior courts which wereexpected to exercise it judicially. The legislature conferred

wide discretion on the High Court and the Court of Sessionto grant anticipatory bail because it evidently felt, firstly, thatit would be difficult to enumerate the conditions under whichanticipatory bail should or should not be granted andsecondly, because the intention was to allow the higher courtsin the echelon somewhat free hand in the grant of relief inthe nature of anticipatory bail. That is why, departing fromthe terms of Sections 437 and 439, Section 438(1) uses thelanguage 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 further and clearermanifestation of the same legislative intent to confer widediscretionary power to grant anticipatory bail. It providesthat the High Court or the Court of Session, while issuing adirection for the grant of anticipatory bail, “may include suchconditions in such directions in the light of the facts of theparticular case, as it may think fit”, including the conditionswhich are set out in clauses (i) to (iv) of sub-section (2). Theproof of legislative intent can best be found in the languagewhich the legislature uses. Ambiguities can undoubtedly beresolved by resort to extraneous aids but words, as wide andexplicit as have been used in Section 438, must be given theirfull effect, especially when to refuse to do so will result inundue impairment of the freedom of the individual and thepresumption of innocence. It has to be borne in mind thatanticipatory bail is sought when there is mere apprehensionof arrest on the accusation that the applicant has committeda non- bailable offence. person who has yet to lose hisfreedom by being arrested asks for freedom in the event ofarrest. That is the stage at which it is imperative to protect hisfreedom, insofar as one may, and to give full play to thepresumption that he is innocent. In fact, the stage at whichanticipatory bail if generally sought brings about its strikingdissimilarity with the situation in which person who isarrested for the commission of non-bailable offence asksfor bail. In the latter situation, adequate data is available tothe court, or can be called for by it, in the light of which itcan grant or refuse relief and while granting it, modify it bythe imposition of all or any of the conditions mentioned inSection 437.13. This is not to say that anticipatory bail, if granted, mustbe granted without the imposition of any conditions. That willbe plainly contrary to the very terms of Section 438. Thoughsub-section (1) of that section says that the court “may, if itthinks fit” issue the necessary direction for bail, sub-section(2) confers on the court the power to include such conditionsin the direction as it may think fit in the light of the facts ofthe particular case, including the conditions mentioned inclauses (i) to (iv) of that sub-section. The controversy thereforeis not whether the court has the power to impose conditionswhile granting anticipatory bail. It clearly and expressly hasthat power. The true question is whether by process ofconstruction, the amplitude of judicial discretion which isgiven to the High Court and the Court of Session, to imposesuch conditions as they may think fit while grantinganticipatory bail, should be cut down by reading into thestatute conditions which are not to be found therein, like thoseevolved by the High Court or canvassed by the learnedAdditional Solicitor General. Our answer, clearly andemphatically, is in the negative. The High Court and the Courtof Session to whom the application for anticipatory bail ismade ought to be left free in the exercise of their judicialdiscretion to grant bail if they consider it fit so to do on theparticular facts and circumstances of the case and on suchconditions as the case may warrant. Similarly, they must beleft free to refuse bail if the circumstances of the case sowarrant, on considerations similar to those mentioned inSection 437 or which are generally considered to be relevantunder Section 439 of the Code.

14. Generalizations on matters which rest on discretion andthe attempt to discover formulae of universal application whenfacts are bound to differ from case to case frustrate the verypurpose of conferring discretion. No two cases are alike onfacts and therefore, courts have to be allowed little freeplay in the joints if the conferment of discretionary power isto be meaningful. There is no risk involved in entrusting awide discretion to the Court of Session and the High Court ingranting anticipatory bail because, firstly, these are highercourts manned by experienced persons, secondly, their orders

ABC

DEF

are not final but are open to appellate or revisional scrutinyand above all because, discretion has always to be exercisedby courts judicially and not according to whim, caprice orfancy. On the other hand, there is risk in foreclosingcategories of cases in which anticipatory bail may be allowedbecause life throws up unforeseen possibilities and offers newchallenges. Judicial discretion has to be free enough to beable to take these possibilities in its stride and to meet thesechallenges. While dealing with the necessity for preservingjudicial discretion unhampered by rules of generalapplication.

———————

19. great deal has been said by the High Court on the fifthproposition framed by it, according to which, inter alia, thepower under Section 438 should not be exercised if theinvestigating agency can make reasonable claim that it cansecure incriminating material from information likely to bereceived from the offender under Section 27 of the EvidenceAct. According to the High Court, it is the right and the dutyof the police to investigate into offences brought to their noticeand therefore, courts should be careful not to exercise theirpowers in manner which is calculated to cause interferencetherewith. It is true that the functions of the judiciary and thepolice are in sense complementary and not overlapping.And, as observed by the Privy Council in King-Emperor v.Khwaja Nazir Ahmed [AIR 1945 PC 18 : (1943-44) 71 IA203 : 46 Cri LJ 413] :“Just as it is essential that every one accused of crimeshould have free access to Court of justice so that hemay be duly acquitted if found not guilty of the offencewith which he is charged, so it is of the utmost importancethat the judiciary should not interfere with the police inmatters which are within their province and into which thelaw imposes on them the duty of inquiry .... The functionsof the judiciary and the police are complementary, notoverlapping, and the combination of the individual libertywith due observance of law and order is only to beobtained by leaving each to exercise its own function,…”

But these remarks, may it be remembered, were made bythe Privy Council while rejecting the view of the LahoreHigh Court that it had inherent jurisdiction under the oldSection 561-A of the Criminal Procedure Code, to quashall proceedings taken by the police in pursuance of twofirst information reports made to them. An order quashingsuch proceedings puts an end to the proceedings with theinevitable result that all investigation into the accusationcomes to halt. Therefore, it was held that the court cannot,in the exercise of its inherent powers, virtually direct thatthe police shall not investigate into the charges containedin the FIR. We are concerned here with situation of analtogether different kind. An order of anticipatory bail doesnot in any way, directly or indirectly, take away from thepolice their right to investigate into charges made or to bemade against the person released on bail. In fact, two ofthe usual conditions incorporated in direction issuedunder Section 438(1) are those recommended in sub-section(2)(i) and (ii) which require the applicant to cooperate withthe police and to assure that he shall not tamper with thewitnesses during and after the investigation. While grantingrelief under Section 438(1), appropriate conditions canbe imposed under Section 438(2) so as to ensure anuninterrupted investigation. One of such conditions caneven be that in the event of the police making out case ofa likely discovery under Section 27 of the Evidence Act,the person released on bail shall be liable to be taken inpolice custody for facilitating the discovery. Besides, ifand when the occasion arises, it may be possible for theprosecution to claim the benefit of Section 27 of theEvidence Act in regard to discovery of facts made inpursuance of information supplied by person releasedon bail by invoking the principle stated by this Court inState of U.P. v. Deoman Upadhyaya [AIR 1960 SC 1125 :(1961) 1 SCR 14, 26 : 1960 Cri LJ 1504] to the effect thatwhen person not in custody approaches police officerinvestigating an offence and offers to give informationleading to the discovery of fact, having bearing on thecharge which may be made against him, he may

ABC

appropriately be deemed so have surrendered himself tothe police. The broad foundation of this rule is stated tobe that Section 46 of the Code of Criminal Procedure doesnot contemplate any formality before person can be saidto be taken in custody: submission to the custody by wordor action by person is sufficient. For similar reasons, weare unable to agree that anticipatory bail should be refusedif legitimate case for the remand of the offender to thepolice custody under Section 167(2) of the Code is madeout by the investigating agency.

21. The High Court says in its fourth proposition that inaddition to the limitations mentioned in Section 437, thepetitioner must make out “special case” for the exerciseof the power to grant anticipatory bail. This, virtually,reduces the salutary power conferred by Section 438 to adead letter. In its anxiety, otherwise just, to show that thepower conferred by Section 438 is not “unguided oruncanalised”, the High Court has subjected that power toa restraint which will have the effect of making the powerutterly unguided. To say that the applicant must make outa “special case” for the exercise of the power to grantanticipatory bail is really to say nothing. The applicanthas undoubtedly to make out case for the grant ofanticipatory bail. But one cannot go further and say thathe must make out “special case”. We do not see why theprovisions of Section 438 should be suspected ascontaining something volatile or incendiary, which needsto be handled with the greatest care and cautionimaginable. wise exercise of judicial power inevitablytakes care of the evil consequences which are likely toflow out of its intemperate use. Every kind of judicialdiscretion, whatever may be the nature of the matter inregard to which it is required to be exercised, has to beused with due care and caution. In fact, an awareness ofthe context in which the discretion is required to be exercisedand of the reasonably foreseeable consequences of its use,is the hallmark of prudent exercise of judicial discretion.

One ought not to make bugbear of the power to grantanticipatory bail.

22. By proposition No. 1 the High Court says that the powerconferred by Section 438 is “of an extraordinary characterand must be exercised sparingly in exceptional cases only”.It may perhaps be right to describe the power as of anextraordinary character because ordinarily the bail isapplied for under Section 437 or Section 439. Thesesections deal with the power to grant or refuse bail to aperson who is in the custody of the police and that is theordinary situation in which bail is generally applied for.But this does not justify the conclusion that the power mustbe exercised in exceptional cases only, because it is of anextraordinary character. We will really be saying once toooften that all discretion has to be exercised with care andcircumspection, depending on circumstances justifying itsexercise. It is unnecessary to travel beyond it and subjectthe wide power conferred by the legislature to rigorouscode of self-imposed limitations.

26. We find great deal of substance in Mr Tarkunde’ssubmission that since denial of bail amounts to deprivationof personal liberty, the court should lean against theimposition of unnecessary restrictions on the scope ofSection 438, especially when no such restrictions have beenimposed by the legislature in the terms of that section.Section 438 is procedural provision which is concernedwith the personal liberty of the individual, who is entitledto the benefit of the presumption of innocence since he isnot, 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 conditionswhich are not to be found in Section 438 can make itsprovisions constitutionally vulnerable since the right topersonal freedom cannot be made to depend on compliancewith unreasonable restrictions. The beneficent provisioncontained in Section 438 must be saved, not jettisoned.

No doubt can linger after the decision in Maneka Gandhi[Maneka Gandhi v. Union of India, (1978) 1 SCC 248] ,that in order to meet the challenge of Article 21 of theConstitution, the procedure established by law fordepriving person of his liberty must be fair, just andreasonable. Section 438, in the form in which it is conceivedby the legislature, is open to no exception on the groundthat it prescribes procedure which is unjust or unfair. Weought, at all costs, to avoid throwing it open to aConstitutional challenge by reading words in it which arenot to be found therein.

33. We would, therefore, prefer to leave the High Courtand the Court of Session to exercise their jurisdiction underSection 438 by wise and careful use of their discretionwhich, by their long training and experience, they areideally suited to do. The ends of justice will be better servedby trusting these courts to act objectively and inconsonance with principles governing the grant of bailwhich are recognised over the years, than by divesting themof their discretion which the legislature has conferred uponthem, by laying down inflexible rules of generalapplication. It is customary, almost chronic, to take statuteas one finds it on the ground that, after all, “the legislaturein its wisdom” has thought it fit to use particularexpression. convention may usefully grow whereby theHigh Court and the Court of Session may be trusted toexercise their discretionary powers in their wisdom,especially when the discretion is entrusted to their care bythe legislature in its wisdom. If they err, they are liable tobe corrected.

34. This should be the end of the matter, but it is necessaryto clarify few points which have given rise to certainmisgivings.

35. Section 438(1) of the Code lays down condition whichhas 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 non-bailable offence. The

use of the expression “reason to believe” shows that thebelief that the applicant may be so arrested must befounded on reasonable grounds. Mere ‘fear’ is not ‘belief’,for which reason it is not enough for the applicant to showthat he has some sort of vague apprehension that someone is going to make an accusation against him, inpursuance of which he may be arrested. The grounds onwhich the belief of the applicant is based that he may bearrested for non-bailable offence, must be capable ofbeing examined by the court objectively, because it is thenalone that the court can determine whether the applicanthas reason to believe that he may be so arrested. Section438(1), therefore, cannot be invoked on the basis of vagueand general allegations, as if to arm oneself in perpetuityagainst possible arrest. Otherwise, the number ofapplications for anticipatory bail will be as large as, atany rate, the adult populace. Anticipatory bail is deviceto secure the individuals liberty; it is neither passport tothe commission of crimes nor shield against any and allkinds of accusations, likely or unlikely

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

37. Thirdly, the filing of first information report is not acondition precedent to the exercise of the power underSection 438. The imminence of likely arrest founded ona reasonable belief can be shown to exist even if an FIR isnot yet filed.

38. Fourthly, anticipatory bail can be granted even afteran FIR is filed, so long as the applicant has not beenarrested.

39. Fifthly, the provisions of Section 438 cannot be invokedafter the arrest of the accused. The grant of “anticipatorybail” to an accused who is under arrest involves

ABC

contradiction in terms, insofar as the offence or offencesfor which he is arrested, are concerned. After arrest, theaccused must seek his remedy under Section 437 or Section439 of the Code, if he wants to be released on bail in respectof the offence or offences for which he is arrested.

40. We have said that there is one proposition formulatedby the High Court with which we are inclined to agree.That is proposition (2). We agree that ‘blanket order’ ofanticipatory bail should not generally be passed. This flowsfrom the very language of the section which, as discussedabove, requires the applicant to show that he has “reasonto believe” that he may be arrested. belief can be said tobe founded on reasonable grounds only if there issomething tangible to go by on the basis of which it can besaid that the applicant’s apprehension that he may bearrested is genuine. That is why, normally, direction shouldnot issue under Section 438(1) to the effect that theapplicant shall be released on bail “whenever arrested forwhichever offence whatsoever”. That is what is meant bya ‘blanket order’ of anticipatory bail, an order which servesas blanket to cover or protect any and every kind ofallegedly unlawful activity, in fact any eventuality, likelyor unlikely regarding which, no concrete information canpossibly be had. The rationale of direction under Section438(1) is the belief of the applicant founded on reasonablegrounds that he may be arrested for non-bailableoffence. It is unrealistic to expect the applicant to draw uphis application with the meticulousness of pleading in acivil case and such is not requirement of the section. Butspecific events and facts must be disclosed by the applicantin order to enable the court to judge of the reasonablenessof his belief, the existence of which is the sine qua non ofthe exercise of power conferred by the section.

41. Apart from the fact that the very language of the statutecompels this construction, there is an important principleinvolved in the insistence that facts, on the basis of whicha direction under Section 438(1) is sought, must be clearand specific, not vague and general. It is only by theobservance of that principle that possible conflict between

the right of an individual to his liberty and the right of thepolice to investigate into crimes reported to them can beavoided. blanket order of anticipatory bail is bound tocause serious interference with both the right and the dutyof the police in the matter of investigation because,regardless of what kind of offence is alleged to have beencommitted by the applicant and when, an order of bailwhich comprehends allegedly unlawful activity of anydescription whatsoever, will prevent the police fromarresting the applicant even if he commits, say, murderin the presence of the public. Such an order can thenbecome charter of lawlessness and weapon to stifleprompt investigation into offences which could not possiblybe predicated when the order was passed. Therefore, thecourt which grants anticipatory bail must take care tospecify the offence or offences in respect of which alonethe order will be effective. The power should not beexercised in vacuum.42. There was some discussion before us on certain minormodalities regarding the passing of bail orders underSection 438(1). Can an order of bail be passed under thesection without notice to the Public Prosecutor? It can be.But notice should issue to the Public Prosecutor or theGovernment Advocate forthwith and the question of bailshould be re-examined in the light of the respectivecontentions of the parties. The ad interim order too mustconform to the requirements of the section and suitableconditions should be imposed on the applicant even at thatstage. Should the operation of an order passed underSection 438(1) be limited in point of time? Not necessarily.The court may, if there are reasons for doing so, limit theoperation of the order to short period until after the filingof an FIR in respect of the matter covered by the order.The applicant may in such cases be directed to obtain anorder of bail under Section 437 or 439 of the Code withina reasonably short period after the filing of the FIR asaforesaid. But this need not be followed as an invariablerule. The normal rule should be not to limit the operationof the order in relation to period of time.

A43. During the last couple of years this Court, while dealingwith appeals against orders passed by various HighCourts, has granted anticipatory bail to many person byimposing conditions set out in Section 438(2) (i), (ii) and(iii). The court has, in addition, directed in most of thosecases that (a) the applicant should surrender himself toBthe police for brief period if discovery is to be madeunder Section 27 of the Evidence Act or that he should bedeemed to have surrendered himself if such discovery isto be made. In certain exceptional cases, the court has, inview of the material placed before it, directed that the orderCof anticipatory bail will remain in operation only for aweek or so until after the filing of the FIR in respect ofmatters covered by the order. These orders, on the whole,have worked satisfactorily, causing the least inconvenienceto the individuals concerned and least interference withthe investigational rights of the police. The court hasDattempted through those orders to strike balance betweenthe individual’s right to personal freedom and theinvestigational rights of the police. The appellants whowere refused anticipatory bail by various courts have longsince been released by this Court under Section 438(1) ofEthe Code.”

8. The judgment in Sibbia was understood and no apprehensionswere reflected about the duration of anticipatory bail orders, in the nextdecade and half. While so, in Salauddin Abdulsamad Shaikh V. State

of Maharashtra, (1996) 1 SCC 667 for the first time, discordant noteFappears to have been struck. It was stated in Salauddin (supra) thatgrant of anticipatory bail should not mean that the regular court, which isto try the offender, would be “bypassed”. This court approved theapproach of the High Court, which had fixed the outer date for thecontinuance of the bail and further directed that the petitioner, upon expiry,should move the regular court of bail. Saluddin further held that theGprocedure followed by the High Court was correct, because:

“it must be realised that when the Court of Session or theHigh Court is granting anticipatory bail, it is granted at astage when the investigation is incomplete and, therefore, itis not informed about the nature of evidence against theHalleged offender. It is therefore, necessary that such

anticipatory bail orders should be of limited duration onlyand ordinarily on the expiry of that duration or extendedduration the court granting anticipatory bail should leave itto the regular court to deal with the matter on an appreciationof evidence placed before it after the investigation has made””progress or the charge-sheet is submitted.

9. The approach and reasoning in Salauddin was applied andreiterated by this Court, in K.L. Verma v. State[12]. That decision(K.L. Verma) further explained the scope of the provision that till theregular bail application of an accused, enjoying protection under Section438 is pending before the regular court he need not surrender and hisprotection will continue till the disposal of the regular bail applicationunder Section 437 or Section 439, and that she or he has to move anapplication (for regular bail) after expiry of certain duration as directedby the Court or if the Charge-sheet is submitted because regular courtscannot be bypassed. It was held, in K.L. Verma that:

“3....This Court further observed that anticipatory bail isgranted in anticipation of arrest in non- bailable cases, butthat does not mean that the regular court, which is to try theoffender, is sought to be bypassed...By this, what the Courtdesired to convey was that an order of anticipatory bail doesnot enure till the end of trial but it must be of limited durationas the regular court cannot be bypassed.The limited durationmust be determined having regard to the facts of the case andthe need to give the accused sufficient time to move the regularcourt for bail and to give the regular court sufficient time todetermine the bail application. In other words, till the bailapplication is disposed of one way or the other the court mayallow the accused to remain on anticipatory bail. ….. Thisdecision was not intended to convey that as soon as theaccused persons are produced before the regular court theanticipatory bail ends even if the court is yet to decide thequestion of bail on merits.The decision in Salauddin case[(1996) 1 SCC 667] has to be so understood.”

10. Again, Sunita Devi; Nirmal Jeet Kaur and Adri DharanDas (supra) are three later decisions where this court applied the ratio

Ain Salauddin and echoed the concern that the “ protective umbrella” ofSection 438 cannot be extended beyond the time period indicated in theprevious case (Salauddin) or till the applicant avails remedies up tohigh courts and that doing so would mean that the regular court wouldbe bypassed. The court reiterated that Section 439 would be rendered adead letter if the applicant is allowed the benefit of an order under SectionB438 till, he avails the remedy of regular bail up to higher courts. In HDFCBank Ltd. v. J.J. Mannan,[13 ]this court followed and applied the reasoningin Salauddin, to the extent that certain limitations must be imposed,while granting anticipatory bail. new axiom too was added, that if thepolice “made out” case against the applicant and his name was includedCas an “accused in the charge-sheet, the accused has to surrender tothe custody of the court and pray for regular bail. On the strengthof an order granting anticipatory bail, an accused against whomcharge has been framed, cannot avoid appearing before the trialcourt..” The court observed that:D“19. The object of Section 438 CrPC has been repeatedlyexplained by this Court and the High Courts to mean that aperson should not be harassed or humiliated in order to satisfythe grudge or personal vendetta of the complainant. But atthe same time the provisions of Section 438 Cr PC cannotalso be invoked to exempt the accused from surrendering toEthe court after the investigation is complete and if charge-sheet is filed against him. Such an interpretation would amountto violence to the provisions of Section 438 Cr PC, since eventhough charge-sheet may be filed against an accused andcharge is framed against him, he may still not appear beforeFthe court at all even during the trial.20. Section 438 CrPC contemplates arrest at the stage ofinvestigation and provides mechanism for an accused to bereleased on bail should he be arrested during the period ofinvestigation. Once the investigation makes out case againstGhim and he is included as an accused in the charge-sheet, theaccused has to surrender to the custody of the court and prayfor regular bail. On the strength of an order grantinganticipatory bail, an accused against whom charge has beenframed, cannot avoid appearing before the trial court.”

H13 2010 (1) SCC 679

11. In the light of these decisions, which narrowed the scope andjurisdiction under Section 438, the judgment in Mhetre noticed that Sibbiawas by Bench of five judges, which indicated that imposition ofrestrictions for granting anticipatory bail was not always necessary. Thecourt, in Mhetre observed as follows:

“... Those orders are contrary to the law laid down by thejudgment of the Constitution Bench in Sibbia’s case (supra).According to the report of the National Police Commission,the power of arrest is grossly abused and clearly violates thepersonal liberty of the people, as enshrined under Article 21of the Constitution, then the courts need to take serious noticeof it. When conviction rate is admittedly less than 10%, thenthe police should be slow in arresting the accused. The courtsconsidering the bail application should try to maintain finebalance between the societal interest vis-à-vis personal libertywhile adhering to the fundamental principle of criminaljurisprudence that the accused that the accused is presumedto be innocent till he is found guilty by the competent court.

94. The complaint filed against the accused needs to bethoroughly examined including the aspect whether thecomplainant has filed false or frivolous complaint on earlieroccasion. The court should also examine the fact whetherthere is any family dispute between the accused and thecomplainant and the complainant must be clearly told that ifthe complaint is found to be false or frivolous, then strictaction will be taken against him in accordance with law. Ifthe connivance between the complainant and the investigatingofficer is established then action be taken against theinvestigating officer in accordance with law.

95. The gravity of charge and exact role of the accused mustbe properly comprehended. Before arrest, the arresting officermust record the valid reasons which have led to the arrest ofthe accused in the case diary. In exceptional cases the reasonscould be recorded immediately after the arrest, so that whiledealing with the bail application, the remarks andobservations of the arresting officer can also be properlyevaluated by the court.

BCD

96. It is imperative for the courts to carefully and withmeticulous precision evaluate the facts of the case. Thediscretion must be exercised on the basis of the availablematerial and the facts of the particular case. In cases wherethe court is of the considered view that the accused has joinedinvestigation and he is fully cooperating with the investigatingagency and is not likely to abscond, in that event, custodialinterrogation should be avoided.

97. great ignominy, humiliation and disgrace is attached tothe arrest. Arrest leads to many serious consequences not onlyfor the accused but for the entire family and at times for theentire community. Most people do not make any distinctionbetween arrest at pre-conviction stage or post-convictionstage. Whether the powers under section 438 Cr.P.C. aresubject to limitation of section 437 Cr.P.C.?

98. The question which arises for consideration is whetherDthe powers under section 438 Cr.P.C. are unguided oruncanalised or are subject to all the limitations of section437 Cr.P.C.? The Constitution Bench in Sibbia’s case (supra)has clearly observed that there is no justification for readinginto section 438 Cr.P.C. and the limitations mentioned inEsection 437 Cr.P.C. The Court further observed that theplentitude of the section must be given its full play. TheConstitution Bench has also observed that the High Court isnot right in observing that the accused must make out a“special case” for the exercise of the power to grantanticipatory bail. This virtually, reduces the salutary powerFconferred by section 438 Cr.P.C. to dead letter. The Courtobserved that “We do not see why the provisions of Section438 Cr.P.C. should be suspected as containing somethingvolatile or incendiary, which needs to be handled with thegreatest care and caution imaginable.”

99. As aptly observed in Sibbia’s case (supra) that wiseexercise of judicial power inevitably takes care of the evilconsequences which are likely to flow out of its intemperateuse. Every kind of judicial discretion, whatever may be thenature of the matter in regard to which it is required to beexercised, has to be used with due care and caution. In fact,

an awareness of the context in which the discretion is requiredto be exercised and of the reasonably foreseeableconsequences of its use, is the hallmark of prudent exerciseof judicial discretion. One ought not to make bugbear ofthe power to grant anticipatory bail.

100. The Constitution Bench in the same judgment alsoobserved that person seeking anticipatory bail is still freeman entitled to the presumption of innocence. He is willing tosubmit to restraints and conditions on his freedom, by theacceptance of conditions which the court may deem fit toimpose, in consideration of the assurance that if arrested, heshall enlarged on bail.

101. The proper course of action ought to be that afterevaluating the averments and accusation available on therecord if the court is inclined to grant anticipatory bail thenan interim bail be granted and notice be issued to the publicprosecutor. After hearing the public prosecutor the court mayeither reject the bail application or confirm the initial orderof granting bail. The court would certainly be entitled toimpose conditions for the grant of bail. The public prosecutoror complainant would be at liberty to move the same courtfor cancellation or modifying the conditions of bail any timeif liberty granted by the court is misused. The bail granted bythe court should ordinarily be continued till the trial of thecase.

102. The order granting anticipatory bail for limitedduration and thereafter directing the accused to surrenderand apply before regular bail is contrary to the legislativeintention and the judgment of the Constitution Bench inSibbia’s case (supra).

103. It is settled legal position that the court which grantsthe bail also has the power to cancel it. The discretion ofgrant or cancellation of bail can be exercised either at theinstance of the accused, the public prosecutor or thecomplainant on finding new material or circumstances at anypoint of time.

104. The intention of the legislature is quite clear that thepower of grant or refusal of bail is entirely discretionary. TheConstitution Bench in Sibbia’s case (supra) has clearly statedthat grant and refusal is discretionary and it should dependon the facts and circumstances of each case. The ConstitutionBench in the said case has aptly observed that we must respectthe wisdom of the Legislature entrusting this power to thesuperior courts namely, the High Court and the Court ofSession. The Constitution Bench observed as under:

“We would, therefore, prefer to leave the High Court andthe Court of Session to exercise their jurisdiction underSection 438 by wise and careful use of their discretionwhich, by their long training and experience, they areideally suited to do. The ends of justice will be better servedby trusting these courts to act objectively and inconsonance with principles governing the grant of bailwhich are recognized over the years, than by divesting themof their discretion which the legislature has conferred uponthem, by laying down inflexible rules of generalapplication. It is customary, almost chronic, to take statuteas one finds it on the grounds that, after all “the legislaturein, its wisdom” has thought it fit to use particularexpression. convention may usefully grow whereby theHigh Court and the Court of Session may be trusted toexercise their discretionary powers in their wisdom,especially when the discretion is entrusted to their care bythe legislature in its wisdom. If they err, they are liable tobe corrected.”

GRANT OF BAIL FOR LIMITED PERIOD IS CONTRARY TOTHE LEGISLATIVE INTENTION AND LAW DECLARED BYTHE CONSTITUTION BENCH:

105. The court which grants the bail has the right to cancelthe bail according to the provisions of the General ClausesAct but ordinarily after hearing the public prosecutor whenthe bail order is confirmed then the benefit of the grant of thebail should continue till the end of the trial of that case.

106. The judgment in Salauddin Abdulsamad Shaikh (supra)is contrary to legislative intent and the spirit of the very

provisions of the anticipatory bail itself and has resulted inan artificial and unreasonable restriction on the scope ofenactment contrary to the legislative intention.

107. The restriction on the provision of anticipatory bail undersection 438 Cr.P.C. limits the personal liberty of the accusedgranted under Article 21 of the constitution. The addedobservation is nowhere found in the enactment and bringingin restrictions which are not found in the enactment is againan unreasonable restriction. It would not stand the test offairness and reasonableness which is implicit in Article 21 ofthe Constitution after the decision in Maneka Gandhi’s case(supra) in which the court observed that in order to meet thechallenge of Article 21 of the Constitution the procedureestablished by law for depriving person of his liberty mustbe fair, just and reasonable.108. Section 438 Cr.P.C. does not mention anything aboutthe duration to which direction for release on bail in theevent of arrest can be granted. The order granting anticipatorybail is direction specifically to release the accused on bailin the event of his arrest. Once such direction ofanticipatory bail is executed by the accused and he is releasedon bail, the concerned court would be fully justified inimposing conditions including direction of joininginvestigation.

109. The court does not use the expression ‘anticipatory bail’but it provides for issuance of direction for the release onbail by the High Court or the Court of Sessions in the eventof arrest. According to the aforesaid judgment of Salauddin’scase, the accused has to surrender before the trial court andonly thereafter he/she can make prayer for grant of bail bythe trial court. The trial court would release the accused onlyafter he has surrendered.

110. In pursuance to the order of the Court of Sessions or theHigh Court, once the accused is released on bail by the trialcourt, then it would be unreasonable to compel the accusedto surrender before the trial court and again apply for regularbail.

111. The court must bear in mind that at times the applicantwould approach the court for grant of anticipatory bail onmere apprehension of being arrested on accusation of havingcommitted non-bailable offence. In fact, the investigatingor concerned agency may not otherwise arrest that applicantwho has applied for anticipatory bail but just because hemakes an application before the court and gets the relief fromthe court for limited period and thereafter he has to surrenderbefore the trial court and only thereafter his bail applicationcan be considered and life of anticipatory bail comes to anend. This may lead to disastrous and unfortunateconsequences. The applicant who may not have otherwiselost his liberty loses it because he chose to file application ofanticipatory bail on mere apprehension of being arrested onaccusation of having committed non-bailable offence. Noarrest should be made because it is lawful for the police officerto do so. The existence of power to arrest is one thing and thejustification for the exercise of it is quite another. The policeofficer must be able to justify the arrest apart from his powerto do so. This finding of the said judgment (supra) is contraryto the legislative intention and law which has been declaredby Constitution Bench of this court in Sibbia’s case (supra).

E112. The validity of the restrictions imposed by the Apex Court,namely, that the accused released on anticipatory bail mustsubmit himself to custody and only thereafter can apply forregular bail . This is contrary to the basic intention and spiritof section 438 Cr.P.C. It is also contrary to Article 21 of theConstitution. The test of fairness and reasonableness is implicitFunder Article 21 of the Constitution of India. Directing theaccused to surrender to custody after the limited periodamounts to deprivation of his personal liberty.

113. It is settled legal position crystallized by the ConstitutionBench of this court in Sibbia’s case (supra) that the courtsshould not impose restrictions on the ambit and scope ofsection 438 Cr.P.C. which are not envisaged by the Legislature.The court cannot rewrite the provision of the statute in thegarb of interpreting it.

114. It is unreasonable to lay down strict, inflexible and rigidrules for exercise of such discretion by limiting the period of

which an order under this section could be granted. We deemit appropriate to reproduce some observations of the judgmentof the Constitution Bench of this court in the Sibbia’s case(supra)…”

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121. No inflexible guidelines or straitjacket formula can beprovided for grant or refusal of anticipatory bail. We areclearly of the view that no attempt should be made to providerigid and inflexible guidelines in this respect because allcircumstances and situations of future cannot be clearlyvisualized for the grant or refusal of anticipatory bail . Inconsonance with the legislative intention the grant or refusalof anticipatory bail should necessarily depend on facts andcircumstances of each case. As aptly observed in theConstitution Bench decision in Sibbia’s case (supra) that theHigh Court or the Court of Sessions to exercise theirjurisdiction under section 438 Cr.P.C. by wise and carefuluse of their discretion which by their long training andexperience they are ideally suited to do. In any event, this isthe legislative mandate which we are bound to respect andhonour.

122. The following factors and parameters can be taken intoconsideration while dealing with the anticipatory bail:

i. The nature and gravity of the accusation and the exact roleof the accused must be properly comprehended before arrestis made;

ii. The antecedents of the applicant including the fact as towhether the accused has previously undergone imprisonmenton conviction by Court in respect of any cognizable offence;

iii. The possibility of the applicant to flee from justice;

iv. The possibility of the accused’s likelihood to repeat similaror the other offences.

v. Where the accusations have been made only with the objectof injuring or humiliating the applicant by arresting him orher.

vi. Impact of grant of anticipatory bail particularly in casesof large magnitude affecting very large number of people.

vii. The courts must evaluate the entire available materialagainst the accused very carefully. The court must also clearlycomprehend the exact role of the accused in the case. Thecases in which accused is implicated with the help of sections34 and 149 of the Indian Penal Code, the court shouldconsider with even greater care and caution because overimplication in the cases is matter of common knowledgeand concern;

viii. While considering the prayer for grant of anticipatorybail, balance has to be struck between two factors namely,no prejudice should be caused to the free, fair and fullinvestigation and there should be prevention of harassment,humiliation and unjustified detention of the accused;

ix. The court to consider reasonable apprehension oftampering of the witness or apprehension of threat to thecomplainant;

x. Frivolity in prosecution should always be considered andit is only the element of genuineness that shall have to beconsidered in the matter of grant of bail and in the event ofthere being some doubt as to the genuineness of theprosecution, in the normal course of events, the accused isentitled to an order of bail.

123. The arrest should be the last option and it should beFrestricted to those exceptional cases where arresting theaccused is imperative in the facts and circumstances of thatcase.

124. The court must carefully examine the entire availablerecord and particularly the allegations which have beendirectly attributed to the accused and these allegations areGcorroborated by other material and circumstances on record.

125. These are some of the factors which should be takeninto consideration while deciding the anticipatory bailapplications. These factors are by no means exhaustive butthey are only illustrative in nature because it is difficult to

clearly visualize all situations and circumstances in which aperson may pray for anticipatory bail. If wise discretion isexercised by the concerned judge, after consideration of entirematerial on record then most of the grievances in favour ofgrant of or refusal of bail will be taken care of. The legislaturein its wisdom has entrusted the power to exercise thisjurisdiction only to the judges of the superior courts. Inconsonance with the legislative intention we should acceptthe fact that the discretion would be properly exercised. Inany event, the option of approaching the superior courtagainst the court of Sessions or the High Court is alwaysavailable.”

12. These seemingly incongruent strands of reasoning- stemmingfrom the two distinct line of precedents, spawning divergent approachesto the scope of jurisdiction under Section 438 have impelled the referenceto this larger Bench.

The provisions

13. For completeness, it is essential to set out the relevantprovisions: to wit, Sections 437, 438 and 439 of the Code of CriminalProcedure, 1974 (hereafter variously “Cr.PC” and “the Code”). Theyare reproduced in the footnote below.[14]

14"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 chargeof police station or appears or is brought before Court other than the HighCourt or Court of Session, he may be released on bail, but-

(i) such person shall not be so released if there appear reasonable grounds forbelieving that he has been guilty of an offence punishable with death orimprisonment for life;

(ii) such person shall not be so released if such offence is cognizable offenceand he had been previously convicted of an offence punishable with death,imprisonment for life or imprisonment for seven years or more, or he had beenpreviously convicted on two or more occasions of cognizable offence punishablewith imprisonment for three years or more but not less than seven years.

Provided that the Court may direct that person referred to in clause (i) orclause (ii) be released on bail if such person is under the age of sixteen years oris woman or is sick or infirm.

ABC

Provided further that the Court may also direct that person referred to inclause (ii) be released on bail if it is satisfied that it is just and proper so to dofor any other special reason.

Provided also that the mere fact that an accused person may be required forbeing identified by witnesses during investigation shall not be sufficient groundfor refusing to grant bail if he is otherwise entitled to be released on bail andBgives an undertaking that he shall comply with such directions as may be givenby the Court.

Provided also that no person shall if the offence alleged to have been committedby him is punishable with death imprisonment for life or imprisonment forseven years or more be released on bail by the Court under this sub-sectionwithout giving an opportunity of hearing to the public prosecutor.

(2) If it appears to such officer or Court at any stage of the investigation, inquiryor trial, as the case may be, that there are not reasonable grounds for believingthat the accused has committed non- bailable offence, but that there aresufficient grounds for further inquiry into hisguilt the accused shall, subject tothe provisions of section 446A and pending such inquiry, be released on bail orat the discretion of such officer or Court, on the execution by him of bondwithout sureties for his appearance as hereinafter provided.

(3) When person accused or suspected of the commission of an offencepunishable with imprisonment which may extend to seven years or more or ofan offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian PenalCode (45 of 1860) or abetment of, or conspiracy or attempt to commit, any suchoffence, is released on bail under sub-section (1), the Court shall impose theconditions-

(a) that such person shall attend in accordance with the conditions of the bondexecuted under this Chapter, or

(b) that such person shall not commit an offence similar to the offence of whichhe is accused or suspected of the commission of which he is suspected, and

(c) that such person shall not directly or indirectly make any inducement, threatFor promise to any person acquainted with the facts of the case so as to dissuadehim for disclosing such facts to the Court or to any police officer or tamper withthe evidence,and may also impose in the interest of justice such other conditionsas it considers necessary.

(4) An officer or Court releasing any person on bail under sub- section (1) orsub- section (2), shall record in writing his or its reasons or special reasons forso doing.

(5) Any Court which has released person on bail under sub- section (1) orsub- section (2), may, if it considers it necessary so to do, direct that such personbe arrested and commit him to custody.

(6) If, in any case triable by Magistrate, the trial of person accused of anynon- bailable offence is not concluded within period of sixty days from the firstHdate 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 theMagistrate, unless for reasons to be recorded in writing, the Magistrate otherwisedirects.

(7) If, at any time after the conclusion of the trial of person accused of non-bailable offence and before judgment is delivered, the Court is of opinion thatthere are reasonable grounds for believing that the accused is not guilty of anysuch offence, it shall release the accused, if he is in custody, on the execution byhim of bond without sureties for his appearance to hear judgment delivered.

438. Direction for grant of bail to person apprehending arrest.

(1) When any person has reason to believe that he may be arrested on anaccusation of having committed non- bailable offence, he may apply to theHigh Court or the Court of Session for direction under this section; and thatCourt may, if it thinks fit, direct that in the event of such arrest, he shall bereleased on bail.*

* By amendment, made in 2005, Subsection (1) has been substituted asfollows (the amended portion is brackets; the amendment has not yetbeen brought into force):

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[“(1) Where any person has reason to believe that he may be arrested onaccusation of having committed non- bailable offence, he may apply to theHigh Court or the Court of Session for direction under this section; that in theevent of such arrest, he shall be released on bail and the Court may after takinginto consideration inter- alia the following factors namely.

(i) the nature and gravity of the accusation

(ii) the antecedents of the applicant including the fact as to whether he haspreviously undergone imprisonment on conviction by Court in respect of anycognizable offence

(iii) the possibility of the applicant to flee from justice and

(iv) where the accusation has been made with the object of injuring or humiliatingthe applicant by having him so arrested,either reject the application forthwithor issue an interim order for the grant of anticipatory bail.

Provided that where the High Court or as the case may be the Court of Sessionhas not passed any interim order under this sub-section or has rejected theapplication for grant of anticipatory bail it shall be open to an officer in chargeof police station to arrest without warrant the applicant on the basis of theaccusation apprehended in such application

(IA) Where the Courts grants an interim order under sub-section (1), it shallforthwith cause notice being not less than seven days notice, together with thecopy of such order to be served on the Public Prosecutor and the Superintendentof Police, with view to give the Public Prosecutor reasonable opportunity ofbeing heard when the application shall be finally heard by the Court

A(IB) The presence of the applicant seeking anticipatory bail shall be obligatoryat the time of final hearing of the application and passing of final order by theCourt, if on an application made to it by the Public Prosecutor, the Courtconsiders such presence necessary in the interest of justice.]

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The unamended portion- Section 438 (2) and (3), and the newly introducedBsub-section (4) read as follows:

(2) When the High Court or the Court of Session makes direction under sub-section (1), it may include such conditions in such directions in the light of thefacts of the particular case, as it may think fit, including-

(i) condition that the person shall make himself available for interrogation bya police officer as and when required;

(ii) condition that the person shall not, directly or indirectly, make anyinducement, threat or promise to any person acquainted with the facts of thecase so as to dissuade him from disclosing such facts to the Court or to anypolice officer;

(iii) condition that the person shall not leave India without the previousDpermission of the Court;

(iv) such other condition as may be imposed under sub- section (3) of section437, as if the bail were granted under that section.

(3) If such person is thereafter arrested without warrant by an officer in chargeof police station on such accusation, and is prepared either at the time ofarrest or at any time while in the custody of such officer to give bail, he shall beEreleased on bail; and if Magistrate taking cognizance of such offence decidesthat warrant should issue in the first instance against that person he shallissue bailable warrant in conformity with the direction of the Court under sub-section (1).

(4) Nothing in this Section shall apply to any case involving the arrest of anyperson on accusation of having committed an offence under sub-Section (3) ofFSection 376 or Section 376 AB or Section 376 DA or Section 376 DB of theIndian Penal Code, (45 of 1860).

439. Special powers of High Court or Court of Session regarding bail.

(1) High Court or Court of Session may direct-

(a) that any person accused of an offence and in custody be released on bail, andGif the offence is of the nature specified in subsection (3) of Section 437, mayimpose any condition which it considers necessary for the purposes mentionedin that sub- section;

(b) that any condition imposed by Magistrate when releasing an person onbail be set aside or modified:

Provided that the High Court or the Court of Session shall, before granting bailHto person who is accused of an offence which is triable exclusively by the Court

Contentions of parties

14. Mr. Abhay Kumar, for the petitioner, argued that it is not correctto find any limitation on the life span of an order of anticipatory bail interms of its duration by reading the para 42 of Sibbia Case; and that thelife of anticipatory bail is coterminous with the life of criminal case,whether the criminal case gets over either at the stage of trial or beforeit, in given case. He further urged that personal liberty is cherishedfreedom, even more important than the other freedoms guaranteed underthe Constitution. The Constitution framers therefore enacted safeguardsin Article 22 in the Constitution to limit the power of the State to detain aperson without trial, which may otherwise pass the test of Article 21, byhumanizing the harsh authority over individual liberty.

15. It is submitted, therefore that the substantive constitutionalright of personal liberty can be denied or curtailed only in accordancewith the procedure established by law that is fair, just and reasonable.That substantial right is procedurally enforced, apart from others, in termsof grant of Bail to an accused in criminal case. Chapter XXXIII of theCode contains elaborate provisions relating to grant of bail. Bail is grantedto one who is arrested in non-bailable offence or has been convictedof an offence after trail. The effect of granting bail is to release theaccused from internment though the court would still retain constructivecontrol over him through the sureties. In case the accused is released onhis own bond such constructive control could still be exercised throughthe conditions of the bond secured from him. “Bail” literally means surety.

of Session or which, though not so triable, is punishable with imprisonment forlife, 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 givesuch notice.

Provided further that the High Court or the Court of Session shall beforegranting bail to person who is an accused of an offence triable under sub-Section (3) of Section 376 or Section 376 AB or Section 376 DA or Section 376DB of the Indian Penal Code (45 of 1860) give notice of the application for bailto the Public Prosecutor within period of fifteen days from the date of receiptof the notice of such application.

(IA) The presence of the informant or any person authorised by him shall beobligatory at the time of hearing of the application for bail to the person undersub-Section (3) of the Section 376 or Section 376 AB or Section 376 DA orSection 376 DB of the Indian Penal Code (45 of 1860)

(2). High Court or Court of Session may direct that any person who has beenreleased on bail under this Chapter be arrested and commit him to custody.”

A16. The literal meaning of the word “bail” is surety. Counselreferred to the meaning of “bail” in Halsbury’s Laws of England(Halsbury’s Laws of England, 4[th ]Edn., Vol. 11, para 166), andsubmitted that it is aimed at placing the accused in the custody of hissureties who are bound to produce him to appear at his trial.[15 ]Upongrant of bail, the accused is mandated to furnish bond and bail-bond forBattendance before officer in charge of police station or Court in terms ofprescribes format of Form No. 45 of Schedule 2 of the Code by givingnecessary details. Bail, it was highlighted, can be given at any stage:pre-trial, during trial and even after completion of trial. Counsel submittedthat apart from provisions in Chapter XXXII of Cr.PC (Sections 436-C450), there are other provisions relevant on the issue, i.e. Section 360(Order to release on probation of good conduct or after admonition, a-postconviction stageand Section389 (Suspension of sentence pendingthe appeal and release of appellant on bail - postconviction and duringpendency of Appeal). Section 438 manifests the principle of liberty.

D17. Counsel highlighted that anticipatory bail is panacea forapprehension of arrest in false case. Anticipatory bail protects fromtrauma and stigma of arrest of an innocent (in most of the cases, full ofvarious responsibilities and even being sole bread earner of her/his familymembers), consequently prohibiting in creating reverse victims by wayof dependent upon the said accused. An elementary postulate of criminalEjurisprudence is the presumption of innocence, meaning thereby that aperson is believed to be innocent until found guilty. However, there areinstances in our criminal law where reverse onus is placed on an accusedwith regard to some specific offences but that is another matter anddoes not detract from the fundamental postulate in respect of other

Foffences. Yet another important facet of our criminal jurisprudence isthat the grant of bail is the general rule and putting person in jail or in aprison or in correction home (whichever expression one may wish touse) is an exception. Counsel relied on Dataram Singh v. State of U.P(2018) 3 SCC 22).

15 Halsbury’s Laws of England (4th Edn., Vol. 11, para 166): “The effect of granting bailis not to set the defendant (accused) at liberty but to release him from the custody of lawand to entrust him to the custody of his sureties who are bound to produce him toappear at his trial at specified time and place. The sureties may seize their principalat any time and may discharge themselves by handing him over to the custody of lawHand he will then be imprisoned.”

18. Counsel submitted that the provision in Section 438 read withSection 439 (2) of the Code, contain clear guidelines and limitations. Itwas highlighted that the discretion to impose (or not impose) condition isleft to the concerned court and the Code therefore cannot be interpretedto cut short its duration either till filing of charge-sheet or unearthing ofalleged fresh materials during investigation. It is submitted that the powerto curtail or to diminish, the duration of anticipatory bail, in suitablecase, is governed by Section 439(2) of the Code in the same mannerwhich is enumerated in Section 437 of the Code (which is applicable toa Court other than High Court or Court of Session). The counsel urgedthat there have been instances of courts passing orders, including insome of the orders/judgments of this Court, wherein denial of anticipatorybail is followed by direction to accused to surrender and seek regularbail. This, counsel highlighted, is not based on any sound rationale.

19. Mr. C.S.N. Mohan Rao, learned counsel, emphasized thatarrest of an accused, is governed, by Sections 41-46 of the Code. Thearrest of an accused, is required, if at all, broadly for unearthing the truthof the case during investigation (a choice of the investigating agency)and to secure the presence of accused during trial, for free and fair trialincluding exclusion of any possibility of influencing of witnesses/andtampering of evidence or aborting trial by absconding (prerogative ofthe trail court) or any other means or method known or unknown.Therefore, whether an accused has to be arrested and kept in custodyand remains in that state of physical confinement, ideally is to be thedomain of the prosecuting agency and /or of trying Court. There aresufficient methods enlisted in the Code to ensure this end by both i.e. theprosecuting agency including complainant/victim and also to the concernedcourt- by filing of cancellation of bail by former and issuance of bailableand non-bailable warrant by the latter. Counsel argued that in any case,rejection of an application for anticipatory bail, at first instance, does notautomatically give rise to evil consequences for an accused to surrenderand seek regular bail. The filing of subsequent anticipatory bail and grantof the relief by competent court of law in suitable case, upon showingproper and inspiring subsequent chance in circumstances in favour ofaccused, is sufficient indicative factor of the proposition that rejectionof anticipatory will generate no automatic warrant for an accused tosurrender and seek regular bail. If subsequent and material change orcircumstance can be plausible reason for cancellation of bail, is shoulddefinitely, considering the valuable right of an accused, equally there can

Abe reason for applying fresh application for anticipatory bail in suitablecase. Having regard to all these factors, counsel urged this court toendorse the reasoning in Mhetre which according to him is conformitywith the larger bench ruling in Sibbia, and accommodates the flexibilitiesin the Code.

B20. Mr. Rao relied on the observations in Gurcharan Singh vState (Delhi Admn)[16] to say that cancellation of anticipatory bail, whenwarranted by the facts, is the answer where the fact situation requiresthe applicant (who is beneficiary of an order under Section 438 CrPC)rather than limiting the order of anticipatory bail. He also pointed outobservations in Gurcharan Singh (supra) to say that statutory bail (i.e.Cwhere charge sheet is not filed in case within the prescribed period of60 or 90 days, leading to release by operation of Section 167 (2) of theCode[17]) amounts to deemed bail under Chapter XXXIII of the Code:

“Under the first proviso to S.167 (2) no Magistrate shallauthorise the detention of an accused in custody under thatD

16 1978 (1) SCC 118. The observations are as follows:

“under Section 439 (2) of the new Code High Court may commit person released onbail under Chapter XXXIII by any Court including the Court of Session to custody, if itthinks appropriate to do so. It must, however, be made clear that Court of SessionEcannot cancel bail which has already been granted by the High Court unless newcircumstances arise during the progress of the trial after an accused person has beenadmitted to bail by the High Court. If, however, Court of Session had admitted anaccused person to bail, the State has two options. it may move the Sessions Judge ifcertain new circumstances have arisen which were not earlier known to the State andnecessarily, therefore, to that Court. The State may as well approach the High Courtbeing the superior Court under Section 439 (2) to commit the accused to custody. When,Fhowever, the State is aggrieved by the order of the Sessions Judge granting bail andthere are no new circumstances that leave copied up except those already existed, it isfutile for the State to move the Sessions Judge again and it is competent in law to movethe High Court for cancellation of the bail. This position follows from the subordinateposition of the Court of Session vis-a- vis the High Court.”

G17 Section 167 (2) CrPC reads as follows:

“(2) The Magistrate to whom an accused person is forwarded under this section may,whether he has or has no jurisdiction to try the case, from time to time, authorise thedetention of the accused in such custody as such Magistrate thinks fit, for term notexceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commitit for trial, and considers further detention unnecessary, he may order the accused to beHforwarded to Magistrate having such jurisdiction: Provided that-

section for total period exceeding 60 days on the expiry ofwhich the accused shall be released on bail if he is preparedto furnish the same- This type of release under the provisoshall be deemed to be release under the provisions of ChapterXXXIII relating to bail.”

21. It was submitted that the decisions in Aslam Babalal Desai vState of Maharastra[18] is an authority for the proposition that there canbe no cancellation of the bail granted, or deemed to be granted, underSection 167 (2) merely upon the later filing of charge sheet. The courthad observed as follows, in Aslam Babalal Desai (supra) in this context:

“It will thus be seen that once an accused person has beenreleased on bail by the thrust of the proviso to Section 167(2), the mere fact that subsequent to his release challan hasbeen filed is not sufficient to cancel his bail. In such situationhis bail can be cancelled only if considerations germane tocancellation of bail under Section 437 (5) or for that matterSection 439 (2) exist. That is because the release of personunder Section Section 167 (2) is equated to his release underChapter XXXIII of the Code.”It was submitted that therefore, the mere filing of charge sheetper se cannot be an event which compels an accused who has the benefitof anticipatory bail, to surrender and seek regular bail. The grounds forcancellation of bail are to be made out, separately.

(a) the Magistrate may authorise the detention of the accused person, otherwise than inthe custody of the police, beyond the period of fifteen days; if he is satisfied that adequategrounds exist for doing so, but no Magistrate shall authorise the detention of theaccused person in custody under this paragraph for total period exceeding,-

(i) ninety days, where the investigation relates to an offence punishable withdeath, imprisonment for life or imprisonment for term of not less than tenyears;

(ii) sixty days, where the investigation relates to any other offence, and, on theexpiry of the said period of ninety days, or sixty days, as the case may be, theaccused person shall be released on bail if he is prepared to and does furnishbail, and every person released on bail under this sub- section shall be deemedto be so released under the provisions of Chapter XXXIII for the purposes ofthat Chapter;..”

18 1992 (4) SCC 272

A22. Mr. K.V. Vishwanathan, learned Senior Counsel emphasisedthat the exercise of power under Section 438 is identical to the exerciseof power under Sections 437 and 439 Cr. P.C. Consequently, pre arrestbail granted in anticipation of arrest- under Section 438, in his submission,operates like any other order of bail i.e. till an order of conviction oraffirmative direction is passed to arrest the individuals, is made underBSection 439 (2). Mr. Vishwanathan highlighted that Section 438 has anintrinsic link with Article 21 in as much as it seeks to balance state’spower and responsibility to investigate offence, with its duty to protectindividual rights and liberties of citizens. It was submitted that Article 21raises the presumption of innocence in favour of other accused;Cconsequently, this has to be at the centre of every consideration of penalstatutes and their interpretation.

23. It was also submitted that Section 438 being part of procedureestablished by law is to be construed in fair, just and reasonable manner.Learned counsel reiterated that this was what the Court highlighted inDSibbia. Mr. Vishwanathan, after outlining the background of Section438 - in the context of the observations of the 41[st] Law CommissionReport submitted that those comments should also be considered in thelight of the observations made in the Report of the Committee on Reformsof the Criminal Justice System by Dr. Justice V.S. Malimath. Relianceon para 7.26.3.[19]E

24. It was urged that the power of arrest with the police is underSection 41 of the CrPC. That provision is in two parts. One, relating tooffences in which the maximum punishment can extend to imprisonmentfor seven year. Second, relating to offences in which the maximumpunishment can extend to imprisonment to above seven years or deathFpenalty. Though they have different conditions and thresholds, in bothcases it is clear from bare reading of the section that the power ofarrest cannot be exercised in ever FIR that is registered u/s 154 Cr.PC.This power is circumscribed by the conditions laid down in this section.Moreover, this principle that the power of arrest is not required to beGexercised in every case was recognized in the case of Joginder Kumar

19 The Report remarked – after considering 3rdReport of the National Police Commissionthat the “power of arrest was one of the chief sources of corruption in the police. Thereport suggested that by and large nearly 60% of the arrests were either unnecessary orunjustified and that such unjustified police action accounted for 43.2% of the expenditureHof the prison department”.

v. State of U.P[20]; Lalitha Kumari v. State of U.P[21]; and Arnesh Kumarv. State of Bihar.[22] This Court in M.C. Abraham v. State ofMaharastra[23 ]held that it was not mandatory for the police to arrest aperson only because his/her anticipatory bail had been rejected. It wasfurther stated that the power of arrest is then further circumscribed bySection 438. As recognized by the Law Commission, there are caseswhere the power of arrest is not required or allowed to be exercised.Exercising power of arrest in such cases would be grave violation of aperson’s right and liberty. Such exercise of power would amount to misuseof Section 41. The check on the power of arrest and custody providedby Sections 437 or 439 is limited as the check is only post facto. By thenthe person arrested has already suffered the trauma and humiliation ofarrest.

25. Counsel submitted to strike further balance between thepower of arrest and the rights of the accused, the power under Section438 is specifically given to the Court of Session and the High Court so asto ensure that this judicial intervention is done at the supervisory leveland not at the magisterial level. It is in this light that the two questionsraised in the present reference need to be addressed. It was urged thata bare reading of Section 438 shows that there is nothing in the languageof the section which goes to show that the pre-arrest bail granted underthis section has to be time-bound. The position is the same as in Sections437 and 439. Counsel pointed to Section 438 (3) and submitted that twoimportant aspects of this provision highlight the understanding the schemeof the Code:

a) person in whose favour pre-arrest bail order has beenmade under Section 438 has to first be arrested.Such person isthen released on bail on the basis of the pre-arrest bail order. Forsuch release the person has to comply with the requirement ofSection 441 of giving bond or surety; and

b) Where the magistrate taking cognizance u/s 204 is of the viewthat warrant is required to be issued at the first instance, suchmagistrate is only empowered to issue only bailable warrantand not non-bailable warrant.

20 1994 (4) SCC 26021 2014 (2) SCC 122 2014 (8) SCC 27323 2003 (2) SCC 649

A26. This curtailment of power of the magistrate clearly showsParliamentary intent that one who is granted relief under Section 438ought not to be arrested at the stage of cognizance because of the saidpre-arrest bail order. Considering this express provision, no otherinterpretation can be given to the said section. The second questionreferred here squarely covered by this sub-section. This order passedBunder Section 438, is pre-arrest direction (to release on bail, in theevent of arrest), is subject to the power granted to the Court of Sessionand the High Court under Section 439(2) Cr. P.C. It is clear from theprovision that bail granted under Section 438 is further governed bySection 439(2) which gives the power to the Court of Session or theCHigh Court to direct the arrest of the accused at any time. This ensuresthat through judicial intervention the balance between the two competingprinciples can again be revisited if the need arises. In other words,considering any relevant change in circumstances the prosecution canseek the arrest of the accused. The only difference is that the power ofarrest in these cases is exercised only after judicial scrutiny. This provisionDenvisions that the Code presupposes that orders once passed underSections 438 and 439 will continue till contrary order is passed underSection 439(2). The order passed under Sections 438 or 439 are not andtemporary or time bound. Therefore, person enjoying the benefit oforders under these sections can be taken into custody only when specificEdirection is passed under Section 439(2). This direction for arrest underSection 439 (2) is different from seeking cancellation of bail.

27. It was argued that undoubtedly violation of condition imposedin an order passed under Section 438 can lead to direction of arrestunder Section 439(2). However, the scope of Section 439(2) is not limitedFto only cancellation of bail. Counsel stated that this proposition of lawwas considered by this court in Pradeep Ram v. State of Jharkhand[24].In this case, this court while considering an earlier judgment in MithabhaiPashabhai Patel v. State of Gujarat[25], held that by virtue of Sections437(5) and 439(2), direction to take person into custody could be

passed despite his being released on bail, by previous order. The courtGheld that under Sections 437(5) and 439(2) person could be directed tobe taken into custody without necessarily cancelling his earlier bail. Thedifference between cancellation of bail and direction to take personinto custody under Section 439(2) was recognised. It was also held in24 2019 SCC Online (SC) 825H25 2009 (6) SCC 332,

this case that if graver offence is added to the FIR or to the case afterthe person has been granted bail, direction under Section 439(2) or437(5) is required before such person can be arrested again for the newoffences added to the case.Therefore, this court recognized the needfor court’s supervision after the bail had been granted.

28. Mr. Hiren Raval, learned amicus curiae, highlighted that whilethere are passages in Sibbia (supra), which support the arguments ofthe petitioners, that orders under Section 438 can be unconditional andnot limited by time, the court equally struck note of caution, and wishedcourts to be circumspect while making orders of anticipatory bail. In thisregard, learned senior counsel highlighted paragraphs 42 and 43 of thedecisions in Sibbia.

29. Elaborating on his submissions, the amicus submitted thatwhether to impose any conditions or limit the order of anticipatory bail inpoint of time undoubtedly falls within the discretion of the court seized ofthe application. He however submitted that this discretion should beexercised with caution and circumspection. Counsel submitted that therecould be three situations when anticipatory bail applications are to beconsidered: one, when the application is filed in anticipation of arrest,before filing FIR; two, after filing FIR, but before the filing of the chargesheet; and three, after filing charge sheet. It was submitted that as amatter of prudence and for good reasons, articulated in Salauddin, K.L.Verma, Adri Dharan Das and decisions adopting their reasoning, it wouldbe salutary and in public interest for courts to impose time limits for thelife of orders of anticipatory bail. Counsel submitted that if anticipatorybail is sought before filing of an FIR the courts should grant relief, limitedtill the point in time, when the FIR is filed. In the second situation, i.e.after the FIR is filed, the court may limit the grant of anticipatory bail tillthe point of time when charge sheet is filed; in the third situation, if theapplication is made after filing the charge sheet, it is up to the court, togrant or refuse it altogether, looking at the nature of the charge. Likewise,if arrest is apprehended, the court should consider the matter in an entirelydiscretionary manner, and impose such conditions as may be deemedappropriate.

30. Mr. Raval submitted that in every contingency, the court is notpowerless after the grant of an order of anticipatory bail; it retains thediscretion to revisit the matter if new material relevant to the issue, isdiscovered and placed on record before it. He highlighted Section 439(2)

Aand argued that that provision exemplified the power of the court tomodify its previous approach and even revoke altogether an earlier ordergranting anticipatory bail. It was submitted that the bar under Section362 of the Code (against review of an order by criminal court) isinapplicable to matters of anticipatory bail, given the nature and contentof the power under Section 439(2).B

31. Mr. Raval also submitted that power under Section 438 cannotbe exercised to undermine any criminal investigation. He highlighted theconcern that an unconditional order of anticipatory bail, would be capableof misuse to claim immunity in blanket manner, which was never theintent of Parliament. Counsel submitted that besides, the discretion ofCcourts empowered to grant anticipatory bail should be understood asbalancing the right to liberty and the public interest in fair and objectiveinvestigation. Therefore, such orders should be so fashioned as to ensurethat accused individuals co-operate during investigations and assist inthe process of recovery of suspect or incriminating material, which theyDmay lead the police to discover or recover and which is admissible, duringthe trial, per Section 27 of the Evidence Act. He submitted that if theseconcerns are taken into account, the declaration of law in Mhetre –particularly in Paras 122 and 123 that no condition can be imposed bycourt, in regard to applications for anticipatory bail, is erroneous; it iscontrary to Para 42 and 43 of the declaration of law in Sibbia’s caseE(supra). It was emphasized that ever since the decision in Salauddinand other subsequent judgments which followed it, the practise of courtsgenerally was to impose conditions while granting anticipatory bail:especially conditions which required the applicant/ accused to apply forbail after 90 days, or surrender once the charge sheet was filed, andFapply for regular bail. Counsel relied on Section 437(3) to say that theconditions spelt out in that provision are to be considered, while grantinganticipatory bail, by virtue of Section 438(2).

32. Mr. Tushar Mehta, learned Solicitor General and Mr. VikramjitBanerjee, learned Additional Solicitor General, submitted that the decisionGin Mhetre (supra) is erroneous and should be overruled. It was submittedthat though Section 438 does not per se pre-suppose imposition ofconditions for grant of anticipatory bail, nevertheless, given Section 438(2)and Section 437(3), various factors must be taken into account. Whilstexercising power to grant (or refuse) direction in the nature ofanticipatory bail, the court is bound to strike balance between theH

individual’s right to personal freedom and the right of investigation of thepolice. For this purpose, in granting relief under Section 438(1), appropriateconditions can be imposed under Section 438(2) to ensure an unimpededinvestigation. The object of imposing conditions is to avoid the possibilityof the person or accused hampering investigation. Thus, any condition,which has no reference to the fairness or propriety of the investigationor trial, cannot be countenanced as permissible under the law.Consequently, courts should exercise their discretion in imposingconditions with care and restraint.

33. The law presumes an accused to be innocent till his guilt isproved. As presumably innocent person, he is entitled to all thefundamental rights including the right to liberty guaranteed under Article21 of the Constitution. Counsel stated that at the same time, while grantinganticipatory bail, the courts are expected to consider and keep in mindthe nature and gravity of accusation, antecedents of the applicant, namely,about his previous involvement in such offence and the possibility of theapplicant to flee from justice. It is also the duty of the Court to ascertainwhether accusation has been made with the object of injuring orhumiliating him by having him so arrested. It is needless to mention thatthe Courts are duty bound to impose appropriate conditions as providedunder Section 438(2) of the Code.34. Counsel argued that there is no substantial difference betweenSections 438 and 439 of the Code as regards appreciation of the casewhile granting or refusing bail. Neither anticipatory bail nor regular bail,however, can be granted as matter of rule. Being an extraordinaryprivilege, should be granted only in exceptional cases. The judicialdiscretion conferred upon the court must be properly exercised afterproper application of mind to decide whether it is fit case for grant ofanticipatory bail. In this regard, counsel relied on Jai Prakash Singh vState of Bihar[26]. Counsel relied on State of M.P. & Anr. v Ram KishnaBalothia & Anr.[27] where this court considered the nature of the right ofanticipatory bail and observed that:

“We find it difficult to accept the contention that Section 438of the Code of Criminal Procedure is an integral part of Article21. In the first place, there was no provision similar to Section438 in the old Code of Criminal Procedure......Also

26 2012 (4) SCC 325

27 1995 Supp (3)SCC 419

92SUPREME COURT REPORTS

Aanticipatory hail cannot he granted as matter of right. It isessentially statutory right conferred long after the cominginto force of the Constitution. It cannot he considered as anessential ingredient of Article 21 of the Constitution. and itsnon-application to certain special category of offencescannot he considered as violative of Article 21.”B

35. The decisions in Savitri Agarwal v. State of Maharashtra& Anr[28], and Sibbia were referred to, to argue that before granting anorder of anticipatory bail, the court should be satisfied that the applicantseeking it has reason to believe that he is likely to be arrested for non-bailable offence and that belief must be founded on reasonable grounds.CMere “fear” is not belief; it is insufficient for an applicant to show thathe has some sort of vague apprehension that someone is going to accusehim, for committing an offence pursuant to which he may be arrested.An applicant’s grounds on which he believes he may be arrested for anon-bailable offence, must be capable of examination by the CourtDobjectively. Specific events and facts should be disclosed to enable theCourt to judge of the reasonableness of his belief, the existence of whichis the sine qua non of the exercise of power conferred by the Section.It was pointed out that the provisions of Section 438 cannot be invokedafter the arrest of the accused. After arrest, the accused must seek hisremedy under Section 437 or Section 439 of the Code, if he wants to beEreleased on bail in respect of the offence or offences for which he isarrested. The following passages in Savitri Agarwal (supra) were reliedupon:

“24. While cautioning against imposition of unnecessaryrestrictions on the scope of the section, because, in its opinion,Fovergenerous infusion of constraints and conditions, whichwere not to be found in Section 438 of the Code, could makethe provision constitutionally vulnerable, since the right ofpersonal freedom, as enshrined in Article 21 of theConstitution, cannot be made to depend on compliance withGunreasonable restrictions, the Constitution Bench laid downthe following guidelines, which the courts are required to keepin mind while dealing with an application for grant ofanticipatory bail:

**********H28 2009 (8) SCC 325

****************

(iv) No blanket order of bail should be passed and the courtwhich grants anticipatory bail must take care to specify theoffence or the offences in respect of which alone the orderwill be effective. While granting relief under Section 438(1)of the Code, appropriate conditions can be imposed underSection 438(2) so as to ensure an uninterrupted investigation.One such condition can even be that in the event of the policemaking out case of likely discovery under Section 27 ofthe Evidence Act, the person released on bail shall be liableto be taken in police custody for facilitating the recovery.Otherwise, such an order can become charter of lawlessnessand weapon to stifle prompt investigation into offences whichcould not possible be predicated when the order was passed.

**************

(ix) Though it is not necessary that the operation of an orderpassed under Section 438(1) of the Code be limited in pointof timebut the court may, if there are reasons for doing so,limit the operation of the order to short period until afterthe filing of FIR in respect of the matter covered by the order.The applicant may, in such cases, be directed to obtain anorder of bail under Section 437 or 439 of the Code within areasonable short period after the filing of the FIR.”

36. It was also argued on behalf of the Govt of NCT- and theUnion, that this court had expressed serious concern, time and again,that if accused or applicants who seek anticipatory bail are equippedwith an unconditional order before they are interrogated by the police itwould greatly harm the investigation and would impede the prospects ofunearthing all the ramifications involved in conspiracy. Public interestalso would suffer as consequence. Reference was invited to State ofA.P. v. Bimal Krishna Kundu[29 ]in this context. Likewise, attention ofthe court was invited to Muraleedharan v. State of Kerala[30 ]whichheld that “Custodial interrogation of such an accused isindispensably necessary for the investigating agency to unearth allthe links involved in the criminal conspiracies committed by theperson which ultimately led to the capital tragedy.” It was highlightedthat statements made during custodial interrogation are qualitatively more

291997 (8) SCC 104

302001 (4) SCC 638

Arelevant to those made otherwise. Granting an unconditional order ofanticipatory bail would therefore thwart complete and objectiveinvestigation.

37. Mr. Aman Lekhi, learned Additional Solicitor General, urgedthat the general drift of reasoning in Sibbia was not in favour of aBgeneralized imposition of conditions- either as to the period (in terms oftime, or in terms of specific event, such as filing of charge sheet)limiting the grant of anticipatory bail. It was submitted that the text ofSection 439(2) applied per se to all forms of orders- including an orderor direction to release an applicant on bail (i.e. grant of anticipatorybail), upon the court’s satisfaction that it is necessary to do so. SuchCorder (of cancellation, under Section 439(2) or direction to arrest) maymade be where the conditions made applicable at the time of grant ofrelief, are violated or not complied with, or where the larger interests ofa fair investigation necessitate it.

Analysis and ConclusionsD

Re Point No 1: Whether the protection granted to personunder Section 438, CrPC should be limited to fixed periodso as to enable the person to surrender before the TrialCourt and seek regular bail

E38. The concept of bail, i.e. preserving the liberty of citizen –even accused of committing offences, but subject to conditions, datesback to antiquity. Justinian I in the collections of laws and interpretationswhich prevailed in his times, Codex Justinianus (or ‘Code Jus’) inBook 9 titled Title 3(2) stipulated that “no accused person shall underany circumstances, be confined in prison before he is convicted”.FThe second example of norm of the distant past is the Magna Cartawhich by clause 44 enacted that “people who live outside the forestneed not in future appear before the Royal Justices of the forest inanswer to the general summons unless they are actually involved inproceedings or are sureties for someone who has been seized for aGforest offence.” Clear Parliamentary recognition of bail took shape inlater enactments in the UK through the Habeas Corpus Act 1677 andthe English Bill of Rights, 1689 which prescribed that “excessive bailought not to be required, nor excessive fines imposed, nor crueland unusual punishments inflicted”.

39. Bail ipso facto has not been defined under the Code. It isHnow widely recognized as norm which includes the governing principles

enabling the setting of accused person on liberty subject to safeguards,required to make sure that he is present whenever needed. Thejustification for bail (to one accused of commission or committing crimeis that it preserves person who is under cloud of having transgressedlaw but not convicted for it, from the rigors of detention.

40. Section 438 of the Cr.PC provides for the issuance of directionsfor the grant of bail to person apprehending arrest. The Cr.PC of 1973replaced the old code of 1898. The old code did not provide for anycorresponding provision to Section 438 of the code of 1973. Under theold code, there was sharp difference of opinion amongst the variousHigh Courts on the question as to whether courts had the inherent powerto pass an order of bail in anticipation of arrest. The predominant positionwas that courts did not have such power. Subsequently, the need forvarious amendments to make the code more comprehensive resulted inthe enactment of the Code of Criminal Procedure in 1973. Interestingly,Section 438 does not expressly use the term “anticipatory bail”; itslanguage instead empowers the concerned to court to issue directionsfor grant of bail.

41. The Law Commission of India, in its 41[st] Report of 1969,noted that the necessity for granting anticipatory bail arises mainly dueto influential persons attempting to implicate their rivals in false cases, ordisgracing them by getting them detained in jail. The report further notedthat apart from false cases, where there are reasonable grounds forholding that person accused of an offence is not likely to abscond, orotherwise misuse his liberty while on bail, there seems to be no justificationto require him first to submit to custody, remain in prison for some daysand then apply for bail. The report recommended that provision beincluded for the direction to grant bail in such cases, and that this powervest in the High Courts and Courts of Session only. The report, however,did not include the conditions for grant of anticipatory bail in the suggestedlanguage for the provision. Certain conditions that courts may includewere, however included in the provision that was enacted as Section438 of the Cr.PC, 1973.

42. The term ‘anticipatory bail’ finds no place in the Cr.PC itselfbut was used by the Law Commission of India in its 41[st] Report. Theterm was used to convey that it was an application for bail in anticipationof arrest, i.e., before the arrest itself is made. Grant of bail, according toWharton’s Law Lexicon, and as noticed in Sibbia (supra), means to

A“set at liberty person arrested or imprisoned, on security beingtaken for his appearance”. Sibbia, observed thus:

“The distinction between an ordinary order of bail and anorder of anticipatory bail is that whereas the former is grantedafter arrest and therefore means release from the custody ofBthe police, the latter is granted in anticipation of arrest andis therefore effective at the very moment of arrest. Policecustody is an inevitable concomitant of arrest for non-bailableoffences. An order of anticipatory bail, constitutes, so to say,an insurance against police custody following upon arrestfor offence or offences in respect of which the order is issued.CIn other words, unlike post-arrest order of bail, it is pre-arrest legal process which directs that if the person in whosefavour it is issued is thereafter arrested on the accusation inrespect of which the direction is issued, he shall be releasedon bail. Section 46(1) of the CrPC which deals with howDarrests are to be made, provides that in making the arrest, thepolice officer or other person making the arrest “shall actuallytouch or confine the body of the person to be arrested, unlessthere be submission to the custody by word or action”. Adirection Under Section 438 is intended to confer conditionalimmunity from this ‘touch’ or confinement.E

43. In Sibbia (supra), this Court considered the specific questionof whether the power to grant anticipatory bail under Section 438 islimited to contingencies such as the possibility that the police may usetheir investigative powers to humiliate the person sought to be arrested,or pervert the course of justice and abuse their powers of investigation.FOne of the arguments raised in Sibbia, as also in the present case, wasthat the power to grant anticipatory bail ought to be left to the discretionof the court concerned, depending on the facts and circumstances ofeach case. The State, on the other hand, argued that the grant ofanticipatory bail should at least be conditional upon the bail applicantGshowing that he is likely to be arrested for an ulterior motive - that theproposed charges are baseless or motivated by malafides. The Statealso argued that anticipatory bail is an extraordinary remedy and therefore,whenever it appears that the proposed accusations are prima facieplausible, the applicant should be left to the ordinary remedy of applyingfor bail under Section 437 or Section 439 of the Cr.PC, after beingHarrested.

44. Counsel for the appellants in Sibbia, on the other hand, arguedthat since the denial of bail amounts to deprivation of personal liberty,courts should lean against the imposition of unnecessary restrictions onthe scope of Section 438, when no such restrictions are prescribed bythe legislature under that provision. The Court observed that Section438(1) is couched in broad and unqualified terms and was of the opinionthat such broad language ought not to be infused with restraints andconditions which the legislature itself did not think proper or necessaryto impose. The court laid emphasis on the primacy of the presumption ofinnocence in criminal jurisprudence, and observed that Section 438 wasnot enacted on clean slate, but rather within the context of the existingprovisions, Sections 437 (dealing with the power of courts other than theCourt of Session and the High Court to grant bail in nonbailable cases)and Section 439 (which deals with the “special powers” of the HighCourt and the Court of Session regarding bail). In the light of the relevantextracts of Sibbia, it would now be worthwhile to recount the relevantobservations on the issue. The discussion and conclusions in Sibbia aresummarized as follows:45. (i) Grant of an order of unconditional anticipatory bail wouldbe “plainly contrary to the very terms of Section 438.” Even thoughthe terms of Section 438(1) confer discretion, Section 438(2) “conferson the court the power to include such conditions in the directionas it may think fit in the light of the facts of the particular case,including the conditions mentioned in clauses (i) to (iv) of that sub-section.”

(ii) Grant of an order under Section 438(1) does not per se hamperinvestigation of an offence; Section 438(1)(i) and (ii) enjoin that anaccused/applicant should co-operate with investigation. Sibbia (supra)also stated that courts can fashion appropriate conditions governing bail,as well.One condition can be that if the police make out case of likelyrecovery of objects or discovery of facts under Section 27 (of theEvidence Act, 1872), the accused may be taken into custody. Given thatthere is no formal method prescribed by Section 46 of the Code if recoveryis made during statement (to the police) and pursuant to the accusedvolunteering the fact, it would be case of recovery during “deemedarrest” (Para 19 of Sibbia).

(iii) The accused is not obliged to make out special caseforgrant of anticipatory bail; reading an otherwise wide power would fetter

Athe court’s discretion. Whenever an application (for relief under Section438) is moved, discretion has to be always exercised judiciously, andwith caution, having regard to the facts of every case. (Para 21, Sibbia).

(iv) While the power of granting anticipatory bail is not ordinary,at the same time, its use is not confined to exceptional cases (Para 22,BSibbia).

(v) It is not justified to require courts to only grant anticipatorybail in special cases made out by accused, since the power isextraordinary, or that several considerations – spelt out in Section 437-or other considerations, are to be kept in mind. (Para 24-25, Sibbia).

(vi) Overgenerous introduction (or reading into) of constraints onthe power to grant anticipatory bail would render it Constitutionallyvulnerable. Since fair procedure is part of Article 21, the court shouldnot throw the provision (i.e. Section 438) open to challenge “by readingwords in it which are not to be found therein.” (Para 26).

(vii) There is no “inexorable rule” that anticipatory bail cannot begranted unless the applicant is the target of mala fides. There are severalrelevant considerations to be factored in, by the court, while consideringwhether to grant or refuse anticipatory bail. Nature and seriousness ofthe proposed charges, the context of the events likely to lead to theEmaking of the charges, reasonable possibility of the accused’s presencenot being secured during trial; reasonable apprehension that thewitnesses might be tampered with, and “the larger interests of the publicor the state” are some of the considerations. person seeking relief (ofanticipatory bail) continues to be man presumed to be innocent. (Para31, Sibbia).F

(viii) There can be no presumption that any class of accused- i.e.those accused of particular crimes, or those belonging to the poorersections, are likely to abscond. (Para 32, Sibbia).

(ix) Courts should exercise their discretion while consideringapplications for anticipatory bail (as they do in the case of bail). It wouldGbe unwise to divest or limit their discretion by prescribing “inflexiblerules of general application.”. (Para 33, Sibbia).

(x) The apprehension of an applicant, who seeks anticipatory bail(about his imminent or possible arrest) should be based on reasonablegrounds, and rooted on objective facts or materials, capable ofH

examination and evaluation, by the court, and not based on vague un-spelt apprehensions. (Para 35, Sibbia).

(xi) The grounds for seeking anticipatory bail should be examinedby the High Court or Court of Session, which should not leave the questionfor decision by the concerned Magistrate. (Para 36, Sibbia).

(xii) Filing of FIR is not condition precedent for exercisingpower under Section 438; it can be done on showing of reasonablebelief of imminent arrest (of the applicant). (Para 37, Sibbia).

(xiii) Anticipatory bail can be granted even after filing of an FIR-as long as the applicant is not arrested. However, after arrest, anapplication for anticipatory bail is not maintainable. (Para 38-39, Sibbia).

(xiv) blanket order under Section 438, directing the police to notarrest the applicant, “wherever arrested and for whatever offence”should not be issued. An order based on reasonable apprehension relatingto specific facts (though not spelt out with exactness) can be made. Ablanket order would seriously interfere with the duties of the police toenforce the law and prevent commission of offences in the future. (Para40-41, Sibbia).

(xv) The public prosecutor should be issued notice, upon consideringan application under Section 438; an ad interim order can be made.Theapplication “should be re-examined in the light of the respectivecontentions of the parties.” The ad interim order too must conform tothe requirements of the section and suitable conditions should be imposedon the applicant even at that stage.“Should the operation of an orderpassed under Section 438(1) be limited in point of time? Notnecessarily. The court may, if there are reasons for doing so, limitthe operation of the order to short period until after the filing ofan FIR in respect of the matter covered by the order. The applicantmay in such cases be directed to obtain an order of bail underSection 437 or 439 of the Code within reasonably short periodafter the filing of the FIR as aforesaid. But this need not be followedas an invariable rule. The normal rule should be not to limit theoperation of the order in relation to period of time.” (Para 42,Sibbia).

46. It is quite evident, therefore, that the pre-dominant thinking ofthe larger, Constitution Bench, in Sibbia (supra), was that given the

Apremium and the value that the Constitution and Article 21 placed onliberty- and given that tendency was noticed, of harassment – at timesby unwarranted arrests, the provision for anticipatory bail was made. Itwas not hedged with any conditions or limitations- either as to its duration,or as to the kind of alleged offences that an applicant was accused ofBhaving committed. The courts had the discretion to impose suchlimitations (like co-operation with investigation, not tampering withevidence, not leaving the country etc) as were reasonable and necessaryin the peculiar circumstances of given case. However, there was noinvariable or inflexible rule that the applicant had to make out special

case, or that the relief was to be of limited duration, in point of time, orCwas unavailable for any particular class of offences.

47. At this stage, it would be essential to clear the air on theobservations made in some of the later cases about whether Section 438is an essential element of Article 21. Some judgments, notably Ram KishnaBalothia & Anr. (supra) and Jai Prakash Singh v State of Bihar[31]Dheld that the provision for anticipatory bail is not an essential ingredientof Article 21, particularly in the context of imposition of limitations on thediscretion of the courts while granting anticipatory bail, either limitingthe relief in point of time, or some other restriction in respect of thenature of the offence, or the happening of an event. We are afraid, suchEobservations are contrary to the broad terms of the power declared bythe Constitution Bench of this court in Sibbia (supra). The larger benchhad specifically held that an “over-generous infusion of constraintsand conditions which are not to be found in Section 438 can makeits provisions constitutionally vulnerable since the right to personalfreedom cannot be made to depend on compliance withFunreasonable restrictions.”48. In Gudikanti Narasimhulu v. Public Prosecutor[32] this courtobserved that

“. … Personal liberty, deprived when bail is refused, is tooGprecious value of our constitutional system recognised underArticle 21 that the curial power to negate it is great trustexercisable, not casually but judicially, with lively concernfor the cost to the individual and the community. To glamorise

31 2012 (4) SCC 379H32 1978 (1) SCC 240

impressionistic orders as discretionary may, on occasions,make litigative gamble decisive of fundamental right. Afterall, personal liberty of an accused or convict is fundamental,suffering lawful eclipse only in terms of “procedureestablished by law”.

49. The reason for enactment of Section 438 in the Code wasParliamentary acceptance of the crucial underpinning of personal libertyin free and democratic country. Parliament wished to foster respectfor personal liberty and accord primacy to fundamental tenet of criminaljurisprudence, that everyone is presumed to be innocent till he or she isfound guilty. Life and liberty are the cherished attributes of everyindividual. The urge for freedom is natural to each human being. Section438 is procedural provision concerned with the personal liberty of eachindividual, who is entitled to the benefit of the presumption of innocence.As denial of bail amounts to deprivation of personal liberty, the courtshould lean against the imposition of unnecessary restrictions on thescope of Section 438, especially when not imposed by the legislature. InSibbia, it was observed that:

“Anticipatory bail is device to secure the individual’s liberty;it is neither passport to the commission of crimes nor ashield against any and all kinds of accusations, likely orunlikely.”

50. The interpretation of Section 438- that it does not encapsulateArticle 21, is erroneous. This court is of the opinion that the issue is notwhether Section 438 is an intrinsic element of Article 21: it is ratherwhether that provision is part of fair procedure. As to that, there can beno doubt that the provision for anticipatory bail is pro-liberty and enablesone anticipating arrest, facility of approaching the court for directionthat he or she not be arrested; it was specifically enacted as measureof protection against arbitrary arrests and humiliation by the police, whichParliament itself recognized as widespread malaise on the part of thepolice.

51. The forty first and forty-eight reports of the Law Commissionwere noticed by this court in Sibbia (supra). Thereafter, the LawCommission, in its 154[th] report had occasion to deal with the subject; itrecommended no substantial change, - except procedural additions toSection 438 and observed as follows:

A“18. In the various workshops diverse views were expressedregarding the retention or deletion of the provision ofanticipatory bail. One view is that it is being misused byaffluent and influential sections of accused in society andhence, be deleted from the Code. The other view is that it is asalutary provision to safeguard the personal liberty andBtherefore be retained. Misuse of the same in some instancesby itself cannot be ground for its deletion. However, somerestraints may be imposed in order to minimise such misuse.We are, however, of the opinion that the provision containedunder S. 438 regarding anticipatory bail should remain inCthe Code but subject to the amendments suggested in cl. 43of the Code of Criminal Procedure (Amendment) Bill, 1994which lays down adequate safeguards.”[33]

33 The relevant extract of Clause 43 of the proposed 1994 amendment read asfollows:D“In S. 438 of the principal Act for sub-s. (1), the following sub-sections shall besubstituted, namely:

(1) Where any person has reason to believe that he may be arrested on accusationof having committed non-bailable offence, he may apply to the High Court orthe Court of Session for direction under this section that in the event of sucharrest, he shall be released on bail; and that Court may, after taking intoEconsideration, inter alia, the following factors, namely:

(i) the nature and gravity of the accusation;

(ii) the antecedents of the applicant including the fact as to whether he haspreviously undergone imprisonment on conviction by Court in respectof any cognizable offence;

F(iii) the possibility of the applicant to flee from justice; and

(iv) where the accusation has been made with the objection of injuring orhumiliating the applicant by having him so arrested,

either reject the application forthwith or issue an interim order for the grant ofanticipatory bail:

GProvided that, where the High Court or, as the case may be, the Court ofSession, has not passed any interim order under this sub-section or has rejectedthe application for grant of anticipatory bail, it shall be open to an officer-in-charge of police station to arrest, without warrant the applicant, if there arereasonable grounds for such arrest.

(1-A) Where the Court grants an interim order under sub-s. (1), it shall forthwithHcause notice being not less than seven days notice, together with copy of such

[S. RAVINDRA BHAT, J.]

Interestingly, the 177[th] report of the Law Commission lamentedthat the power of arrest was being misused by police in widespreadmanner.[34]

52. The persistence of the phenomena unwarranted arrests wassharply criticised by this court in Arnesh Kumar(supra), saying that theapproach of the police continued to be colonial despite six decades ofindependence, that the power of arrest is

“…is largely considered as tool of harassment, oppressionand surely not considered friend of public. The need forcaution in exercising the drastic power of arrest has beenemphasized time and again by Courts but has not yieldeddesired result. Power to arrest greatly contributes to itsarrogance so also the failure of the Magistratcy to check it.Not only this, the power of arrest is one of the lucrative sources

order to be served on the Public Prosecutor and the Superintendent of Police,with view to give the Public Prosecutor reasonable opportunity of beingheard when the application shall be finally heard by the Court.

(1-B) The presence of the applicant seeking anticipatory bail shall be obligatoryat the time of final hearing of the application and passing of final order by theCourt, if on an application made to it by the Public Prosecutor, the Courtconsiders such presence necessary in the interest of justice.”

34 One hundred and seventy seventh [177th] Report, submitted in December 2001 (LawCommission of India, 177[th] Report, Annexure-III para1.8 said that:

“-Misuse of power of arrest:Notwithstanding the safeguards contained in the Code ofCriminal Procedure and the Constitution referred to above, the fact remains that thepower of arrest is wrongly and illegally exercised in large number of cases all overthe country. Very often this power is utilized to extort monies and other valuable prop-erty or at the instance of an enemy of the person arrested. Even in case of civil dispute,this power is being resorted to on the basis of false allegation against party to civildispute at the instance of his opponent. The vast discretion given by the CrPC to arresta person even in the case of bailable offence (not only where the bailable offence iscognizable but also where it is non-cognizable) and the further power to make preven-tive arrests (e.g. under Section151 of the CrPC and the several city police enactments),clothe the police with extraordinary power which can easily be abused. Neither there isany inhouse mechanism in the police department to check such misuse or abuse nordoes the complaint of such misuse or abuse to higher police officers bear fruit except insome exceptional cases. We must repeat that we are not dealing with the vast discretion-ary powers of the members of service which is provided with firearms, which arebecoming more and more sophisticated with each passing day (which is technicallycalled civil service for the purposes of Service Jurisprudence) and whose acts touchupon the liberty and freedom of the citizens of this country and not merely their entitle-ments and properties.

Aof police corruption. The attitude to arrest first and thenproceed with the rest is despicable. It has become hand toolto the police officers who lack sensitivity or act with obliquemotive.”

The latest report of the Law Commission[35] notes that “67 perBcent of the prison population is awaiting trial in India”. Therefore,the need for provision to ensure anticipatory bail, is as crucial, as itwas at the time of its introduction, and at the time Sibbia (supra) wasdecided.

53. Various reasons- given in judgments, rendered after SibbiaC(supra), starting with Salauddin (supra), have highlighted thatanticipatory bail orders have to be constrained by conditions, notablywith reference to time (i.e. three months, etc) or till the happening of acertain event. The reasons, and observations, limiting the duration ofgrant of anticipatory bailare outlined below:

D(1) “such anticipatory bail orders should be of limitedduration only and ordinarily on the expiry of that durationor extended duration the court granting anticipatory bailshould leave it to the regular court to deal with the matter onan appreciation of evidence placed before it after theinvestigation has made progress or the charge-sheet isEsubmitted”. (Saluddin and K.L. Verma, supra).

(2) An order of anticipatory bail can be granted in cases of “seriousnature as for example murder”. Consequently, its duration should“be limited and ordinarily the Court granting anticipatorybail should not substitute itself for the original Court whichFis expected to deal with the offence.”(Salauddin [supra])

(3) Custodial interrogation of “accused is indispensablynecessary for the investigating agency” to unearth materialsin criminal conspiracies (Ref. to unearth all the links involvedin the criminal conspiracies” (Bimal Krishna Kundu andGMuraleedharan, [supra])

(4) Imposing time limits (till filing of FIR, or filing of charge-sheetetc) would enable the court- which is seized of the main case andmonitors it, to consider the nature and gravity of the offence, havingregard to the fresh materials unearthed and included as prosecutionH35 268th Report, 2017.

evidence. Therefore, it would be salutary and in public interest torequire courts to impose time limits for the life of orders ofanticipatory bail the event of filing of FIR or charge sheet, areessential ingredients to an order under Section 438. (Salauddin,K.L. Verma, and Adri Dharan Das). Some decisions have alsostressed that economic offences need different approach andtherefore, anticipatory bail should not be granted readily.[36]

54. fuller consideration of the various decisions cited earlier,especially those which emphasized the need to limit the life of an orderof anticipatory bail, are premised on the understanding that the grant ofan unconditional order of bail would thwart investigation. In the firstplace, this premise is unfounded, given that Sibbia (supra) stated (inpara 13, SCC reports) that such an order would be “contrary to theterms” of Section 438; and furthermore, that conditions mentioned inSection 438(2) could be imposed while granting anticipatory bail. Here,one is conscious of the fact that the requirement of imposing conditionsis not compulsive (noticing the use of the term “may” which precedesthe requirement of imposing conditions). Nevertheless, an unconditionalorder, in the sense of an order not even imposing conditions mentioned inSection 438(2) can impede or hamper investigation, Sibbia (supra) heldthat the conditions mentioned in that provision should be imposed. Thisrequirement is more matter of prudence, while granting relief.

36 In P. Chidambaram v. Directorate of Enforcement, (2019) 9 SCC 24 it was held asfollows:

“However, the court must also keep in view that criminal offence is not just an offenceagainst an individual, rather the larger societal interest is at stake. Therefore, delicatebalance is required to be established between the two rights—safeguarding the personalliberty of an individual and the societal interest…..

83. Grant of anticipatory bail at the stage of investigation may frustrate the investigatingagency in interrogating the accused and in collecting the useful information and also thematerials which might have been concealed. Success in such interrogation would eludeif the accused knows that he is protected by the order of the court. Grant of anticipatorybail, particularly in economic offences would definitely hamper the effective investigation.Having regard to the materials said to have been collected by the respondent EnforcementDirectorate and considering the stage of the investigation, we are of the view that it isnot fit case to grant anticipatory bail.”

The court cited other previous decisions, i.e. State v. Anil Sharma (1997) 7 SCC 187;Sudhir v. State of Maharashtra 2016 (1) SCC 146; and Directorate of Enforcement v.Hassan Ali Khan (2011) 12 SCC 684.

A55. This court cannot lose sight of the fact that the LawCommission’s 41[st] and 48[th] report focused on the need to introduce theprovision (for anticipatory bail) as preventive, or curative measure, todeal with particular problem, i.e. unwarranted arrests. Sibbia (supra)noticed this fact, and also that significantly, Section 438 is not hedgedwith any obligation on the court’s power, to impose conditions. ThatBsituation remains unchanged: the provision remains unaltered-at leastsubstantially (barring an amendment in 2005 which obliged the issuanceof notice to the public prosecutor before issuing any order for anticipatorybail)[37]. The 203[rd] Report of the Law Commission, which reviewed theentire law on the subject and noticed later decisions, such as Salauddin,CAdari Narain Das, etc, recommended no change in law on this aspectrelating to conditions. In this background, it is important to notice that theonly bar, or restriction, imposed by Parliament upon the exercise of thepower (to grant anticipatory bail) is by way of positive restriction, i.e.in the case where accused are alleged to have committed offencespunishable underSection 376(3) or Section 376AB or Section 376DA orDSection 376DB of the Indian Penal Code.In other words, Parliament

37 The amendment, i.e. Criminal Procedure Code (Amendment) Act, 2005 – which hastill now, not been brought into force, reads as follows:

[“(1) Where any person has reason to believe that he may be arrested onaccusation of having committed non- bailable offence, he may apply to theEHigh Court or the Court of Session for direction under this section; that in theevent of such arrest, he shall be released on bail and the Court may after takinginto consideration inter- alia the following factors namely.

(i) the nature and gravity of the accusation

(ii) the antecedents of the applicant including the fact as to whether he hasFpreviously undergone imprisonment on conviction by Court in respect of anycognizable offence

(iii) the possibility of the applicant to flee from justice and

(iv) where the accusation has been made with the object of injuring or humiliatingthe applicant by having him so arrested,Geither reject the application forthwith or issue an interim order for the grant ofanticipatory bail.

Provided that where the High Court or as the case may be the Court of Sessionhas not passed any interim order under this sub-section or has rejected theHapplication for grant of anticipatory bail it shall be open to an officer in charge

has now denied jurisdiction of the courts (i.e. Court of Session and HighCourts) from granting anticipatory bail to those accused of such offences.The amendment (Code of Criminal Procedure Amendment Act, 2018)introduced Section 438(4)) reads as follows:

“(4) Nothing in this section shall apply to any case involvingthe arrest of any person on accusation of having committedan offence under sub-section (3) of section 376 or section376AB or section 376DA or section 376DB of the Indian PenalCode.”

56. Clearly, therefore, where the Parliament wished to exclude orrestrict the power of courts, under Seciton 438 of the Code, it did so incategorical terms.Parliament’s omission to restrict the right of citizens,accused of other offences from the right to seek anticipatory bail,necessarily leads one to assume that neither blanket restriction can beread into by this court, nor can inflexible guidelines in the exercise ofdiscretion, be insisted upon- that would amount to judicial legislation.

57. Turning now to the various concerns that impelled this court inSalauddin, K.L. Verma, Sunita Devi; Nirmal Jeet Kaur and AdriDharan Das, HDFC Bank, J.J. Manan(supra) and other decisionswhich outlined the various concerns and problems faced by theprosecuting agency, or the police, or that competent courts would bedeprived of oversight, thus, leading to directions that courts should imposetime restrictions, or grant temporary or limited bail (e.g. filing of chargesheet etc.), this court proposes to deal with such reasoning hereafter.

58. The various reasons which led to the imposition of restrictionsor limitations by the decisions noted previously, hinge upon factors such

of police station to arrest without warrant the applicant on the basis of theaccusation apprehended in such application

(IA) Where the Courts grants an interim order under sub-section (1), it shallforthwith cause notice being not less than seven days notice, together with thecopy of such order to be served on the Public Prosecutor and the Superintendentof Police, with view to give the Public Prosecutor reasonable opportunity ofbeing heard when the application shall be finally heard by the Court

(IB) The presence of the applicant seeking anticipatory bail shall be obligatoryat the time of final hearing of the application and passing of final order by theCourt, if on an application made to it by the Public Prosecutor, the Courtconsiders such presence necessary in the interest of justice.]

Aas: addition of graver offences which the applicant is alleged to havecommitted after the grant of anticipatory bail; unearthing of factsdisclosing his or her complicity in serious offences, as for instance, aconspirator or kingpin; the accused’s non-cooperation in the course ofinvestigation, (such as, for example, difficulty in securing his person,evasion by him, reluctance to answer questions during the investigationBor providing statements for purposes of recovery of articles in terms ofSection 27 of the Evidence Act); involvement in very serious or graveoffences such as murder, kidnapping, causing death under unusualcircumstances and offences which undermine the economy; disclosureof information that the offence involves large scale fraud and severalCindividuals or victims, and, the filing of charge-sheet. Each of or all ofthem put together, in the opinion of the court, neither hold insurmountableproblem, nor are unforeseen situations or not anticipated in Sibbia(supra).59. The controlling expressions under Section 438(2) spell outDthree distinct conditions, which the court granting anticipatory bail caninclude as directions. These are- that the applicant makes himself availablefor interrogation by police officer, as and when required; that such applicantshould not directly or indirectly make any inducement, threat or promiseto any person acquainted with the facts of the case so as to dissuadehim from disclosing such facts to the court or to any police officer; aEcondition that the person should not leave India without the permissionof the court. Further conditions as may be deemed essential, may alsobe imposed by the court, under Section 437(3). The Court in Sibbia(supra) was alive to the necessity of imposing conditions as is evidentfrom para 13 of its judgment. The court observed that there was nothingFin law which stated that whenever anticipatory bail is granted, it shouldbe without imposing any of those conditions. Sibbia (supra) went on tostate that such unconditional orders would be plainly contrary to thevery terms of Section 438. The court also noted that though couched indiscretionary terms, which means that the courts could impose those

conditions, perhaps viewed pragmatically, they should do so. What thisGcourt in Sibbia (supra) was concerned with, and cautioned other courtsagainst was that the process of construction and interpretation ought notto compel the courts to “cut down by reading into the statute conditionswhich are not to be found therein.”

60. The context and nature which Sibbia (supra) considered isHthat discretion ought to be exercised by the Full Bench judgment of the

Punjab and Haryana High Court which cautioned that the power to grantanticipatory bail should be used sparingly and in exceptional cases andthat all conditions under Section 437 should be read into in Section 438.Furthermore, the High Court had required that an applicant ought tomake out special case for grant of anticipatory bail; it was also statedthat in cases wherever remand was sought, or reasonable cause tosecure incriminating material in terms of Section 27 of the Evidence Actcould be made out, anticipatory bail ought not to be granted and that itcould not be granted in regard to offences punishable with death orimprisonment for life unless the court is satisfied that the charge wasfalse or groundless. The court in Sibbia (supra) frowned upon impositionof such rules after interpreting and in the course of the judgment heldthat the power to grant anticipatory bail is wide and that the discretion isnot limited in the manner that the High Court suggested. At the sametime, this court also emphasized that the discretion had to be exercisedwhile granting or refusing to grant in given cases on due application ofmind and in judicious manner.61. The imposition of conditions under Section 438(2) withreference to Section 437(3), in the opinion of this court, is enough safeguardfor the authorities – including the police and other investigating agencies,who have to investigate into crimes and the possible complicity of theapplicants who seek such relief. Taking each concern, i.e. the additionof more serious offences; presence of large number of individuals orcomplainants; possibility of non-cooperation - non-cooperation in theinvestigation or the requirement of the accused’s statement to aid therecovery of articles and incriminating articles in the course of statementsmade during investigations – it is noticeable, significantly, that each ofthese is contemplated as condition and is invariably included in everyorder granting anticipatory bail. In the event of violation or alleged violationof these, the concerned authority is not remediless; recourse can be hadto Section 438(2) read with Section 437(3). Any violation of these termswould attract direction to arrest him. This power or direction to arrestis found in Section 437(5). However, that provision has no textualapplication to regular bail granted by the Court of Sessions or High Courtsunder Section 439 or directions not to arrest, i.e. order of anticipatorybail under Section 438. Secondly, Section 439(2) which is cast in wideterms, adequately covers situations when an accused does not cooperateduring the investigation or threatens to, or intimidates witness[es] ortries to tamper with other evidence.

A62. It is important to notice, here that there is nothing in theprovisions of Section 438 which suggests that Parliament intended torestrict its operation, either as regards the time period, or in terms of thenature of the offences in respect of which, an applicant had to be deniedbail, or which special considerations were to apply. In this context, it isrelevant to recollect that the court would avoid imposing restrictions orBconditions in provision in the absence of an apparent or manifestabsurdity, flowing from the plain and literal interpretation of the statute(Ref Chandra Mohan v. State of Uttar Pradesh & Ors[38]). In ReserveBank of India v. Peerless General Finance and Investment Co. Ltd.& Ors[39], the relevance of text and context was emphasized in theCfollowing terms:

“Interpretation must depend on the text and the context. Theyare the bases of interpretation. One may well say if the text isthe texture, context is what gives the colour. Neither can beignored. Both are important. That interpretation is best whichDmakes the textual interpretation match the contextual. statuteis best interpreted when we know why it was enacted. Withthis knowledge, the statute must be read, first as whole andthen Section by section, Clause by clause, phrase by phraseand word by word. If statute is looked at, in the context ofits enactment, with the glasses of the statute-maker, providedEby such context, its scheme, the sections, clauses, phrasesand words may take colour and appear different than whenthe statute is looked at without the glasses provided by thecontext. With these glasses we must look at the Act as wholeand discover what each section, each clause, each phraseFand each word is meant and designed to say as to fit into thescheme of the entire Act. No part of statute and no word ofa statute can be construed in isolation. Statutes have to beconstrued so that every word has place and everything is inits place.

G63. Likewise, in Directorate of Enforcement v DeepakMahajan[40] this court referred to Maxwell on Interpretation of Statutes,Tenth Edn., to the effect that if the ordinary meaning and grammatical

381967 (1) SCR 77391987 (1) SCC 424401994 (3) SCC 440H

construction, “leads to manifest contradiction of the apparentpurpose of the enactment, or to some inconvenience or absurdity,hardship or injustice, presumably not intended, construction maybe put upon it which modifies the meaning of the words…”

64. This court, long back, in State of Haryana & Ors. v. SampuranSingh & Ors[41]. observed that by no stretch of imagination Judge isentitled to add something more than what is there in the statute by wayof supposed intention of the legislature. The cardinal principle ofconstruction of statute is that the true or legal meaning of an enactmentis derived by considering the meaning of the words used in the enactmentin the light of any discernible purpose or object which comprehends themischief and its remedy to which the enactment is directed. It is sufficient,therefore to notice that when Section 438 – in the form that exists today,(which is not substantially different from the text of what was introducedwhen Sibbia was decided, except the insertion of sub-section (4)) wasenacted, Parliament was aware of the objective circumstances andprevailing facts, which impelled it to introduce that provision, without thekind of conditions that the state advocates to be intrinsically imposed inevery order under it.

65. The narrower interpretation preferred by this Court - in line ofdecisions starting with Salauddin (supra) highlighting the concerns withrespect to the stages of investigation and enquiry and the nature andseriousness of the offence, in the opinion of the Court, ought not to leadone to cutting down the amplitude and the power and discretion otherwiseavailable with the Courts. The danger of this Court prescribing thelimitations is that they become inflexible rules or edicts incapable ofdeviation. Instead, it would be safer to say that where there arecircumstances or facts which pose peculiar problems or complexitiespointing to the seriousness of an offence which the accused is implicatedin, it is always open to courts (which have to deal with applicationsunder Section 438) to impose the needed restrictions – be that in point oftime or at the stage of investigation or enquiry. Each of these peculiarconditions may be imposed in the given circumstances of any case,which has those distinctive or special features. But they should notalways be imposed invariably in all cases.In other words, if this Courtwere to weave conditions to impose and read into Section 438 that arenot expressly provided, the danger would be that several applicants who

41 1975 (2) SCC 810

Amight otherwise be entitled to relief, would be denied it altogether. Forexample, the classification of an offence or category of offences asone wanting special treatment where the Courts should not grant relief,would mean that regardless of the role of the accused and the nature ofmaterials shown (whether adequate or not), the courts would be renderedpowerless and denuded of the otherwise amplitude of discretion providedBby the statute.

66. As regards the concern expressed on behalf of the state andthe Union- that unconditional orders (i.e. those unrelated to particulartime frame) would result in non-co-operation of the accused, with theinvestigating officer or authority, or that there would be reluctance toCmake statements to the prosecution, to assist in the recovery of articlesthat incriminate the accused (and therefore can be used under Section27, Evidence Act), this court perceives such views to be vague andbased apparently pre-conceived notions. If there is non-cooperation byan accused – in the course of investigation, the remedy of seekingDassistance of the court exists. Moreover, on this aspect too, Sibbia hadenvisioned the situation; the court had cited State of U.P. v DeomanUpadhyaya[42], where this court had observed as follows:

“When person not in custody approaches police officerinvestigating an offence and offers to give information leadingEto the discovery of fact, having bearing on the chargewhich may be made against him he may appropriately bedeemed to have surrendered himself to the police. Section 46of the Code of Criminal Procedure does not contemplate anyformality before person can be said to be taken in custody: submission to the custody by word or action by person inFsufficient. person directly giving to police officer by wordof mouth information which may be used as evidence againsthim, may be deemed to have submitted himself to the “custody”of the police officer within the meaning of Section 27 of theIndian Evidence Act : Legal Remembrancer v Lalit MohanGSingh ((1921) I.L.R. 49 Cal.167), Santokhi Beldar v. KingEmperor ((1933) I.L.R. 12 Pat. 241). Exceptional cases maycertainly be imagined in which person may give informationwithout presenting himself before police officer who isinvestigating an offence. For instance, he may write letter

H42 1961 (1) SCR 14

and give such information or may send telephonic or othermessage to the police officer.”

This view was reiterated and applied in Vallabhdas Liladhar vAsst. Collector of Customs[43]. The observations in Sibbia (supra) arerelevant, and are reproduced again, for facility of reference:

“One of such conditions can even be that in the event of thepolice making out case of likely discovery under Section27 of the Evidence Act, person released on bail shall be liableto be taken in police custody for facilitating the discovery.Besides, if and when the occasion arises, it may be possiblefor the prosecution to claim the benefit of Section 27 of theEvidence Act in regard to discovery of facts made inpursuance of information supplied by person released onbail by invoking the principle stated by this Court in State ofU.P. v Deoman Upadhyaya.”

Therefore, the “limited custody” or “deemed custody” to facilitatethe requirements of the investigative authority, would be sufficient forthe purpose of fulfilling the provisions of Section 27, in the event ofrecovery of an article, or discovery of fact, which is relatable to astatement made during such event (i.e deemed custody). In such event,there is no question (or necessity) of asking the accused to separatelysurrender and seek regular bail.

67. Now, coming to the instruction in some decisions thatanticipatory bail should not be given, or granted with stringent conditions,upon satisfaction that the accused is not involved, Sibbia, clearlydisapproved the imposition of such restrictions, or ruling out of certainoffences or adoption of cautious or special approach. It was held that:

“A close look at some of the rules in the eight-point codeformulated by the High Court will show how difficult it is toapply them in practice. The seventh proposition says :

“The larger interest of the public and State demand that inserious cases like economic offences involving blatantcorruption at the higher rungs of the executive and politicalpower, the discretion under Section 438 of the Code shouldnot be exercised.”

How can the Court, even if it had third eye, assess theblatantness of corruption at the stage of anticipatory bail?And will it be correct to say that blatantness of theaccusation will suffice for rejecting bail, even if theapplicant’s conduct is painted in colours too lurid to betrue? The eighth proposition rule framed by the High Courtsays:

“Mere general allegations of mala fides in the petition areinadequate. The court must be satisfied on materials beforeit that the allegations of mala fide are substantial and theaccusation appears to be false and groundless.”

Does this rule mean, and that is the argument of the learnedAdditional Solicitor-General, that the anticipatory bailcannot be granted unless it is alleged (and naturally, alsoshown, because mere allegation is never enough) that theproposed accusations are mala fide ? It is understandablethat if mala fides are shown anticipatory bail should begranted in the generality of cases. But it is not easy toappreciate why an application for anticipatory bail mustbe rejected unless the accusation is shown to be mala fide.This, truly, is the risk involved in framing rules by judicialconstruction. Discretion, therefore, ought to be permittedto remain in the domain of discretion, to be exercisedobjectively and open to correction by the higher courts.The safety of discretionary power lies in this twin protectionwhich provides safeguard against its abuse.

According to the sixth proposition framed by the HighCourt, the discretion under Section 438 cannot be exercisedin regard to offences punishable with death orimprisonment for life unless, the court at the stage ofgranting anticipatory bail, is satisfied that such chargeappears to be false or groundless. Now, Section 438confers on the High Court and the Court of Session thepower to grant anticipatory bail if the applicant has reasonto believe that he may be arrested on an accusation ofhaving committed “a non-bailable offence”. We see nowarrant for reading into this provision the conditionssubject to which bail can be granted under Section 437(1) of the Code. That section, while conferring the powerto grant bail in cases of non-bailable offences, providesby way of an exception that person accused or suspectedof the commission of non-bailable offence “shall not beso released” if there appear to be reasonable grounds forbelieving that he has been guilty of an offence punishablewith death or imprisonment for life. If it was intended thatthe exception contained in Section 437 (1) should governthe grant of relief under Section 438 (1), nothing wouldhave been easier for the legislature than to introduce intothe latter section similar provision. We have alreadypointed out the basic distinction between these two sections.Section 437 applies only after person, who is alleged tohave committed non-bailable offence, is arrested ordetained without warrant or appears or is brought beforea court. Section 438 applies before the arrest is made and,in fact, one of the pre-conditions of its application is thatthe person, who applies for relief under it, must be able toshow that he has reason to believe that “he may bearrested”, which plainly means that he is not yet arrested.The nexus which this distinction bears with the grant orrefusal of bail is that in cases falling under Section 437,there is some concrete data on the basis of which it ispossible to show that there appear to be reasonablegrounds for believing that the applicant has been guilty ofan offence punishable with death or imprisonment for life.In cases falling under Section 438 that stage is still to arriveand, in the generality of cases thereunder, it would bepremature and indeed difficult to predicate that there areor are not reasonable grounds for so believing. Thefoundation of the belief spoken of in Section 437 (1), byreason of which the court cannot release the applicant onbail is, normally, the credibility of the allegations containedin the First Information Report.”

68. For the above reasons, the answer to the first question in thereference made to this bench is that there is no offence, per se, whichstands excluded from the purview of Section 438, - except the offencesmentioned in Section 438 (4). In other words, anticipatory bail can begranted, having regard to all the circumstances, in respect of all offences.

DEF

AAt the same time, if there are indications in any special law or statute,which exclude relief under Section 438 (1) they would have to be dulyconsidered.Also, whether anticipatory offences should be granted, inthe given facts and circumstances of any case, where the allegationsrelating to the commission of offences of serious nature, with certainspecial conditions, is matter of discretion to be exercised, having regardBto the nature of the offences, the facts shown, the background of theapplicant, the likelihood of his fleeing justice (or not fleeing justice);likelihood of co-operation or non-co-operation with the investigatingagency or police, etc. There can be no inflexible time frame for whichan order of anticipatory bail can continue.C69. Therefore, this court holds that the view expressed inSalauddin Abdulsamad Shaikh, K.L. Verma, Nirmal Jeet Kaur, SatpalSingh, Adri Dharan Das, HDFC Bank, J.J. Manan and Naresh KumarYadav (supra) about the Court of Sessions, or the High Court, beingobliged to grant anticipatory bail, for limited duration, or to await theDcourse of investigation, so as the “normal court” not being “bye passed”or that in certain kinds of serious offences, anticipatory bail should notbe granted normally- including in economic offences, etc are not goodlaw. The observations – which indicate that such time related orinvestigative event related conditions, should invariably be imposed atthe time of grant of anticipatory bail are therefore, overruled. Similarly,Ethe observations in Mhetre that “the courts should not imposerestrictions on the ambit and scope of section 438 Cr.P.C. which arenot envisaged by the Legislature. The court cannot rewrite theprovision of the statute in the garb of interpreting it” is too wide andcannot be considered good law. It is one thing to say that as matter ofFlaw, ordinarily special conditions (not mentioned in Section 438 (2) readwith Section 437 (3) should not be imposed;it is an entirely differentthing to say that in particular instances, having regard to the natureof the crime, the role of the accused, or some peculiar feature, specialconditions should not be imposed. The judgment in Sibbia itself is an

authority that such conditions can be imposed, but not in routine orGordinary manner and that such conditions then become an inflexible“formula” which the courts would have to follow. Therefore, courts andcan, use their discretion, having regard to the offence, the peculiar facts,the role of the offender, circumstances relating to him, his likelihood ofsubverting justice (or fair investigation), likelihood of evading or fleeingHjustice- to impose special conditions. Imposing such conditions, would

have to be on case to case basis, and upon exercise of discretion bythe court seized of the application under Section 438. In conclusion, it isheld that imposing conditions such as those stated in Section 437 (2)while granting bail, are normal; equally, the condition that in the event ofthe police making out case of likely discovery under Section 27 ofthe Evidence Act, person released on bail shall be liable to be taken inpolice custody for facilitating the discovery. Other conditions, which arerestrictive, are not mandatory; nor is there any invariable rule that theyshould necessarily be imposed or that the anticipatory bail order wouldbe for time duration, or be valid till the filing of the FIR, or the recordingof any statement under Section 161, Cr. PC, etc. Other conditions maybe imposed, if the facts of the case so warrant.

Re Question No. 2: Whether the life of an anticipatory bailshould end at the time and stage when the accused issummoned by the court.

70. The question here is whether there is anything in the lawwhich per se requires that upon filing of the charge-sheet, or thesummoning of the accused, by the court – (or even the addition of anoffence in the charge-sheet, of which an applicant on bail is accused offreshly), his liberty ought to be forfeited and that he should be asked tosurrender and apply for regular bail. The observations about the widthand amplitude of the power under Section 438, made in answer to thefirst question, are equally relevant here too. In the present context, further,the judgment and observations of this Court in its interpretation of Section167(2) are telling. It was held in Gursharan Singh (supra), the releaseby grant of bail of an accused under Section 167(2) amounts to “deemedbail”. This is borne out by Section 167(2) which states that anyonereleased on bail under its provision “shall be deemed to be so releasedunder the provisions of Chapter XXXIII for the purposes of thatChapter.” The judgment in Aslam Babalal Desai (supra) has clarifiedthat when an accused is released by operation of Section 167(2) andsubsequently, charge-sheet is filed, there is no question of thecancellation of his bail. In these circumstances, the mere fact that anaccused is given relief under Section 438 at one stage, per se does notmean that upon the filing of charge-sheet, he is necessarily to surrenderor/and apply for regular bail. The analogy to ‘deemed bail’ under Section167(2) with anticipatory bail leads this court to conclude that the meresubsequent event of the filing of charge-sheet cannot compel the

Aaccused to surrender and seek regular bail. As matter of fact,interestingly, if indeed, if charge-sheet is filed where the accused is onanticipatory bail, the normal implication would be that there was nooccasion for the investigating agency or the police to require his custody,because there would have been nothing in his behavior requiring such astep. In other words, an accused, who is granted anticipatory bail wouldBcontinue to be at liberty when the charge sheet is filed, the naturalimplication is that there is no occasion for direction by the Court thathe be arrested and further that he had cooperated with the investigation.At the same time, however, at any time during the investigation wereany occasion to arise calling for intervention of the court for infractionCof any of the conditions imposed under Section 437(3) read with Section438(2) or the violation of any other condition imposed in the given factsof case, recourse can always be had under Section 439(2).71. Section 438 (3) states that when person is granted anticipatorybail, is later arrested without warrant by an officer in charge of policeDstation “on such accusation”, and is willing to give bail, “he shall bereleased on bail; and if Magistrate taking cognizance of suchoffence decides that warrant should issue in the first instanceagainst that person he shall issue bailable warrant in conformitywith the direction of the Court under sub-section (1)”. The ordergranting anticipatory bail, is also- as noticed earlier, and in several previousEdecisions, “direction” under this Section 438 “that in the event ofsuch arrest” the applicant be released on bail.Therefore, when anaccused in fact is granted bail, and the conditions outlined in Section 438(2) are included as part of the direction “to release” him in the event ofarrest, all the necessary conditions which he is obliged to follow exist.FSection 438 (3) outlines the steps to be taken, in the event of arrest ofone who has been granted relief under Section 438 (1). In the eventof non-compliance with any or all conditions, imposed by the court, theconcerned agency or the police, direction can be sought from the courtunder Section 439 (2).G72. The view that this court expresses about the prosecution’soption to apply for direction to arrest the accused, finds support inPradeep Ram (supra) where this court held as follows:

“21. Both Sections 437 (5) and 439 (2) empowers the Courtto arrest an accused and commit him to custody, who has beenHreleased on bail under Chapter XXXIII. There may be numerous

grounds for exercise of power under 437 (5) and 439 (2).The principles and grounds for cancelling bail are wellsettled, but in the present case, we are concerned only withone aspect of the matter, i.e., case where after accused hasbeen granted the bail, new and serious offences are added inthe case. person against whom serious offences have beenadded, who is already on bail can very well be directed to bearrested and committed to custody by the Court in exercise ofpower under 437 (5) and 439 (2). Cancelling the bail grantedto an accused and directing him to arrest and taken intocustody can be one course of the action, which can be adoptedwhile exercising power under 437 (5) and 439 (2), but theremay be cases where without cancelling the bail granted to anaccused, on relevant consideration, Court can direct theaccused to be arrested and committed to custody. The additionof serious offences is one of such circumstances, under whichthe Court can direct the accused to be arrested and committedto custody despite the bail having been granted with regardto the offences with which he was charged at the time whenbail was considered and granted.

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25. We may have again to look into provisions of Sections437 (5) and 439 (2) of Cr.P.C. Sub-section (5) of Sections437 of Cr.P.C uses expression ‘if it considers it necessary soto do, direct that such person be arrested and commit him tocustody’. Similarly, sub-section (2) of Section 439 of Cr.P.C.provides: ‘may direct that any person who has been releasedon bail under this Chapter be arrested and commit him tocustody’. plain reading of the aforesaid provisions indicatesthat provision does not mandatorily provide that the Courtbefore directing arrest of such accused who has already beengranted bail must necessary cancel his earlier bail. Adiscretion has been given to the Court to pass such orders todirect for such person be arrested and commit him to thecustody which direction may be with an order for cancellationof earlier bail or permission to arrest such accused due toaddition of graver and non- cognizable offences. Two JudgeBench judgment in Mithabhai Pashabhai Patel (supra) uses

the word ‘ordinarily’ in paragraph 18 of the judgment whichcannot be read as that mandatorily bail earlier granted tothe accused has to be cancelled before Investigating Officerto arrest him due to addition of graver and non-cognizableoffences.

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27. Relying on the above said order, learned counsel for theappellant submits that respondent State ought to get first theorder dated 10.03.2016 granting bail to appellant cancelledbefore seeking custody of the appellant. It may be true thatby mere addition of an offence in criminal case, in whichaccused is bailed out, investigating authorities itself may notproceed to arrest the accused and need to obtain an orderfrom the Court, which has released the accused on the bail. Itis also open for the accused, who is already on bail and withregard to whom serious offences have been added to applyfor bail in respect of new offences added and the Court afterapplying the mind may either refuse the bail or grant the bailwith regard to new offences. In case, bail application of theaccused for newly added offences is rejected, the accusedcan very well be arrested. In all cases, where accused is bailedout under orders of the Court and new offences are addedincluding offences of serious nature, it is not necessary thatin all cases earlier bail should be cancelled by the Courtbefore granting permission to arrest an accused on the basisof new offences. The power under Sections 437 (5) and 439(2) are wide powers granted to the court by the Legislatureunder which Court can permit an accused to be arrested andcommit him to custody without even cancelling the bail withregard to earlier offences. Sections 437 (5) and 439 (2) cannotbe read into restricted manner that order for arresting theaccused and commit him to custody can only be passed bythe Court after cancelling the earlier bail.

28. Coming back to the present case, the appellant was alreadyinto jail custody with regard to another case and theinvestigating agency applied before Special Judge, NIA Courtto grant production warrant to produce the accused beforethe Court. The Special Judge having accepted the prayer of

grant of production warrant, the accused was produced beforethe Court on 26.06.2018 and remanded to custody. Thus, inthe present case, production of the accused was with thepermission of the Court. Thus, the present is not case whereinvestigating agency itself has taken into custody theappellant after addition of new offences rather accused wasproduced in the Court in pursuance of production warrantobtained from the Court by the investigating agency. We, thusdo not find any error in the procedure which was adopted bythe Special Judge, NIA Court with regard to production ofappellant before the Court. In the facts of the present case, itwas not necessary for the Special Judge to pass an ordercancelling the bail dated 10.03.2016 granted to the appellantbefore permitting the accused appellant to be produced beforeit or remanding him to the judicial custody.

29. In view of the foregoing discussions, we arrive at followingconclusions in respect of circumstance where after grant ofbail to an accused, further cognizable and non-bailableoffences are added:-

(i) The accused can surrender and apply for bail for newlyadded cognizable and non-bailable offences. In event ofrefusal of bail, the accused can certainly be arrested.

(ii) The investigating agency can seek order from the courtunder Sections 437 (5) or 439 (2) for arrest of the accusedand his custody.

(iii) The Court, in exercise of power under Sections 437 (5)or 439 (2) of Cr.PC., can direct for taking into custody theaccused who has already been granted bail after cancellationof his bail. The Court in exercise of power under Sections437 (5) as well as 439 (2) can direct the person who hasalready been granted bail to be arrested and commit him tocustody on addition of graver and non-cognizable offenceswhich may not be necessary always with order of cancellingof earlier bail.

(iv) In case where an accused has already been grantedbail, the investigating authority on addition of an offence oroffences may not proceed to arrest the accused, but for

arresting the accused on such addition of offence or offencesit need to obtain an order to arrest the accused from the Courtwhich had granted the bail.”

73. Earlier, in the decision reported as Dolat Ram v State ofHaryana[44] this court had observed thatB

“bail once granted should not be cancelled in mechanicalmanner without considering whether any superveningcircumstances have rendered it no longer conducive to fairtrial to allow the accused to retain his freedom by enjoyingthe concession of bail during the trial.”

74. This decision was followed, and its ratio applied, in HazariLal Das v State of West Bengal & Anr[45]. The decision in BhadreshBipinbhai Sheth v. State of Gujarat[46] stated, after culling out theprinciples in Mhetre, as follows:

“25.6. It is settled legal position that the court which grantsthe bail also has the power to cancel it. The discretion ofgrant or cancellation of bail can be exercised either at theinstance of the accused, the Public Prosecutor or thecomplainant, on finding new material or circumstances at anypoint of time.

25.7. In pursuance of the order of the Court of Session or theHigh Court, once the accused is released on anticipatory bailby the trial court, then it would be unreasonable to compelthe accused to surrender before the trial court and againapply for regular bail.

F25.8. Discretion vested in the court in all matters should beexercised with care and circumspection depending upon thefacts and circumstances justifying its exercise. Similarly, thediscretion vested with the court under Section 438 CrPCshould also be exercised with caution and prudence. It isunnecessary to travel beyond it and subject the wide powerGand discretion conferred by the legislature to rigorous codeof self-imposed limitations.

44 1995 (1) SCC 34945 2009 (10) SCC 652H46 2016 (1) SCC 152

25.9. No inflexible guidelines or straitjacket formula can beprovided for grant or refusal of the anticipatory bail becauseall circumstances and situations of future cannot be clearlyvisualised for the grant or refusal of anticipatory bail. Inconsonance with legislative intention, the grant or refusal ofanticipatory bail should necessarily depend on the facts andcircumstances of each case.”

75. The three-judge decision in Sudhir v. Maharastra[47] noticedthe decision in Bipin Bhadresh Sheth (supra) and did not disapprove it.However, the court did not grant relief, given that anticipatory bail wasdeclined initially, and the application to the High Court was withdrawn,after which second anticipatory bail was granted. The High Courtcancelled the grant of relief.This court affirmed the High Court’s view.In that judgment, Bipin Bhadresh Sheth was noticed, while consideringthe scope of the power under Section 439 (2). In another decision, ArvindTiwary v. State of Bihar[48] the issue was whether the anticipatory bail,granted subject to certain conditions, earlier, which had been consideredby this court, could be cancelled. The conditions included, inter alia,that sums were to be secured by bank guarantee. The aggrievedcorporation directed that the “defalcated sum” specified in respect ofevery accused should be secured through such guarantee. Upon failureto comply with that demand, an order of cancellation was sought. Thiscourt held that cancellation could not be resorted to on the assumptionthat the applicants were guilty. Similarly, in Mahant Chand Yogi v. Stateof Haryana,[49 ]Padmakar Tukaam Bhavnagare v. State ofMaharastra,[50 ]X v. State of Telangana,[51] and several other judgmentsthe same views were expressed.

76. Therefore, unless circumstances to the contrary: in the formof behaviour of the accused suggestive of his fleeing from justice, orevading the authority or jurisdiction of the court, or his intimidatingwitnesses, or trying to intimidate them, or violate any condition imposedwhile granting anticipatory bail, the law does not require the person tosurrender to the court upon summons for trial being served on him. Subjectto compliance with the conditions imposed, the anticipatory bail given to47 2016 (1) SCC 14648 2018 (8) SCC 47549 2003 (1) SCC 23650 2012 (13) SCC 72051 (2018) 16 SCC 511

Aa person, can continue till end of the trial. This answers question No. 2referred to the present Bench.

Conclusions

77. This court answers the reference in the following manner:

B(1) Regarding question No. 1, it is held that the protectiongranted under Section 438 Cr. PC should not always or ordinarilybe limited to fixed period; it should inure in favour of theaccused without any restriction as to time. Usual or standardconditions under Section 437 (3) read with Section 438 (2)should be imposed; if there are peculiar features in regard toCany crime or offence (such as seriousness or gravity etc.), it isopen to the court to impose any appropriate condition (includingfixed nature of relief, or its being tied to an event or time bound)etc.

(2) The second question referred to this court is answered, byholding that the life of an anticipatory bail does not end generallyat the time and stage when the accused is summoned by thecourt, or after framing charges, but can also continue till theend of the trial. However, if there are any special or peculiarfeatures necessitating the court to limit the tenure of anticipatorybail, it is open for it to do so.

78. Having regard to the above discussion, it is clarified that thecourt should keep the following points as guiding principles, in dealingwith applications under Section 438, Cr. PC:

(a) As held in Sibbia, when person apprehends arrest andapproaches court for anticipatory bail, his apprehension (ofFarrest), has to be based on concrete facts (and not vague or generalallegations) relatable specific offence or particular of offences.Applications for anticipatory bail should contain clear and essentialfacts relating to the offence, and why the applicant reasonablyapprehends his or her arrest, as well as his version of the facts.GThese are important for the court which considering the application,to extent and reasonableness of the threat or apprehension, itsgravity or seriousness and the appropriateness of any conditionthat may have to be imposed. It is not necessary condition thatan application should be moved only after an FIR is filed; it can bemoved earlier, so long as the facts are clear and there is reasonableHbasis for apprehending arrest.

(b) The court, before which an application under Section 438, isfiled, depending on the seriousness of the threat (of arrest) as ameasure of caution, may issue notice to the public prosecutor andobtain facts, even while granting limited interim anticipatorybail.

(c) Section 438 Cr. PC does not compel or oblige courts to imposeconditions limiting relief in terms of time, or upon filing of FIR, orrecording of statement of any witness, by the police, duringinvestigation or inquiry, etc. While weighing and considering anapplication (for grant of anticipatory bail) the court has to considerthe nature of the offence, the role of the person, the likelihood ofhis influencing the course of investigation, or tampering withevidence (including intimidating witnesses), likelihood of fleeingjustice (such as leaving the country), etc. The courts would bejustified – and ought to impose conditions spelt out in Section 437(3), Cr. PC [by virtue of Section 438 (2)]. The necessity to imposeother restrictive conditions, would have to be weighed on caseby case basis, and depending upon the materials produced by thestate or the investigating agency. Such special or other restrictiveconditions may be imposed if the case or cases warrant, but shouldnot be imposed in routine manner, in all cases. Likewise,conditions which limit the grant of anticipatory bail may be granted,if they are required in the facts of any case or cases; however,such limiting conditions may not be invariably imposed.

(d) Courts ought to be generally guided by the considerations suchnature and gravity of the offences, the role attributed to theapplicant, and the facts of the case, while assessing whether togrant anticipatory bail, or refusing it. Whether to grant or not is amatter of discretion; equally whether, and if so, what kind of specialconditions are to be imposed (or not imposed) are dependent onfacts of the case, and subject to the discretion of the court.

(e) Anticipatory bail granted can, depending on the conduct andbehavior of the accused, continue after filing of the charge sheettill end of trial. Also orders of anticipatory bail should not be“blanket” in the sense that it should not enable the accused tocommit further offences and claim relief. It should be confined tothe offence or incident, for which apprehension of arrest is sought,in relation to specific incident. It cannot operate in respect of afuture incident that involves commission of an offence.

(f) Orders of anticipatory bail do not in any manner limit or restrictthe rights or duties of the police or investigating agency, toinvestigate into the charges against the person who seeks and isgranted pre-arrest bail.

(g) The observations in Sibbia regarding “limited custody” orB“deemed custody” to facilitate the requirements of the investigativeauthority, would be sufficient for the purpose of fulfilling theprovisions of Section 27, in the event of recovery of an article, ordiscovery of fact, which is relatable to statement made duringsuch event (i.e. deemed custody). In such event, there is no question(or necessity) of asking the accused to separately surrender andCseek regular bail. Sibbia (supra) had observed that “if and whenthe occasion arises, it may be possible for the prosecution toclaim the benefit of Section 27 of the Evidence Act in regardto discovery of facts made in pursuance of informationsupplied by person released on bail by invoking the principlestated by this Court in State of U.P. v Deoman Upadhyaya.”

(h) It is open to the police or the investigating agency to move thecourt concerned, which granted anticipatory bail, in the firstinstance, for direction under Section 439 (2) to arrest the accused,in the event of violation of any term, such as absconding, non-cooperating during investigation, evasion, intimidation or inducementEto witnesses with view to influence outcome of the investigationor trial, etc. The court – in this context is the court which grantsanticipatory bail, in the first instance, according to prevailingauthorities.

(i) The correctness of an order granting bail, can be consideredFby the appellate or superior court at the behest of the state orinvestigating agency, and set aside on the ground that the courtgranting it did not consider material facts or crucial circumstances.(See Prakash Kadam & Etc. Etc vs Ramprasad VishwanathGupta & Anr[52]; Jai Prakash Singh (supra) State through C.B.I.vs. Amarmani Tripathi[53]). This does not amount to “cancellation”Gin terms of Section 439 (2), Cr. PC.

(j) The judgment in Mhetre (and other similar decisions)restrictiveconditions cannot be imposed at all, at the time of grantinganticipatory bail are hereby overruled. Likewise, the decision in52 (2011) 6 SCC 189H53 (2005) 8 SCC 21

Salauddin and subsequent decisions (including K.L. Verma,Nirmal Jeet Kaur) which state that such restrictive conditions, orterms limiting the grant of anticipatory bail, to period of time arehereby overruled.

79. In conclusion, it would be useful to remind oneself that therights which the citizens cherish deeply, are fundamental- it is not therestrictions that are fundamental. Joseph Story, the great jurist and USSupreme Court judge, remarked that “personal security and privateproperty rest entirely upon the wisdom, the stability, and the integrityof the courts of justice.”

80. The history of our republic – and indeed, the freedommovement has shown how the likelihood of arbitrary arrest and indefinitedetention and the lack of safeguards played an important role in rallyingthe people to demand independence. Witness the Rowlatt Act, thenationwide protests against it, the Jallianwalla Bagh massacre and severalother incidents, where the general public were exercising their right toprotest but were brutally suppressed and eventually jailed for long. Thespecter of arbitrary and heavy-handed arrests: too often, to harass andhumiliate citizens, and oftentimes, at the interest of powerful individuals(and not to further any meaningful investigation into offences) led to theenactment of Section 438. Despite several Law commission reports andrecommendations of several committees and commissions, arbitrary andgroundless arrests continue as pervasive phenomenon. Parliament hasnot thought it appropriate to curtail the power or discretion of the courts,in granting pre-arrest or anticipatory bail, especially regarding the duration,or till charge sheet is filed, or in serious crimes. Therefore, it would notbe in the larger interests of society if the court, by judicial interpretation,limits the exercise of that power: the danger of such an exercise wouldbe that in fractions, little by little, the discretion, advisedly kept wide,would shrink to very narrow and unrecognizably tiny portion, thusfrustrating the objective behind the provision, which has stood the test oftime, these 46 years.

81. The reference is hereby answered in the above terms.

ARUN MISHRA, INDIRA BANERJEE AND VINEETSARAN, JJ.

We have seen the drafts of Justice M.R. Shah and Justice S.Ravindra Bhat and are in agreement with them. Since there is no

128SUPREME COURT REPORTS

Adifference of opinion between the two, we are in agreement with thereasoning of Justice M.R. Shah and Justice S. Ravindra Bhat that theconclusions in Shri Gurbaksh Singh Sibbia and others v. State ofPunjab 1980 (2) SCC 565 needs reiteration and further that the restrictivemanner in which Section 438 of the Cr.PC has been interpreted inSalauddin Abdulsamad Shaikh v. State of Maharashtra 1996 (1)BSCC 667 is incorrect. Therefore, we agree that Salauddin (supra) andother cases which have followed it needs to be overruled. Similarly, thewide interpretation in Siddharam Satlingappa Mhetre v. State ofMaharashtra & Ors. 2011 (1) SCC 694, i.e. that no conditions can beimposed while granting an order of anticipatory bail, is incorrect. MhetreC(supra) to that extent and other judgments which have followed it areaccordingly overruled.

In view of the said conclusions, we are in agreement with theanswers to the reference made to the larger Bench.

DARUN MISHRA, INDIRA BANERJEE, VINEET SARAN,M. R. SHAH AND S. RAVINDRA BHAT, JJ.

FINAL CONCLUSIONS:

In view of the concurring judgments of Justice M.R. Shah and ofEJustice S. Ravindra Bhat with Justice Arun Mishra, Justice IndiraBanerjee and Justice Vineet Saran agreeing with them, the followinganswers to the reference are set out:

(1) Regarding Question No. 1, this court holds that the protectiongranted to person under Section 438 Cr. PC should not invariably beFlimited to fixed period; it should inure in favour of the accused withoutany restriction on time. Normal conditions under Section 437 (3) readwith Section 438 (2) should be imposed; if there are specific facts orfeatures in regard to any offence, it is open for the court to impose anyappropriate condition (including fixed nature of relief, or its being tied toan event) etc.G(2) As regards the second question referred to this court, it is heldthat the life or duration of an anticipatory bail order does not end normallyat the time and stage when the accused is summoned by the court, orwhen charges are framed, but can continue till the end of the trial. Again,if there are any special or peculiar features necessitating the court toHlimit the tenure of anticipatory bail, it is open for it to do so.

SUSHILA AGGARWAL v. STATE (NCT OF DELHI)[ARUN MISHRA, INDIRA BANERJEE, VINEET SARAN, M. R. SHAH ANDS. RAVINDRA BHAT, JJ.]

1. This court, in the light of the above discussion in the twojudgments, and in the light of the answers to the reference, herebyclarifies that the following need to be kept in mind by courts, dealingwith applications under Section 438, Cr. PC:

(1) Consistent with the judgment in Shri Gurbaksh Singh Sibbiaand others v. State of Punjab[54], when person complains ofapprehension of arrest and approaches for order, the application shouldbe based on concrete facts (and not vague or general allegations) relatableto one or other specific offence. The application seeking anticipatorybail should contain bare essential facts relating to the offence, and whythe applicant reasonably apprehends arrest, as well as his side of thestory. These are essential for the court which should consider hisapplication, to evaluate the threat or apprehension, its gravity orseriousness and the appropriateness of any condition that may have tobe imposed. It is not essential that an application should be moved onlyafter an FIR is filed; it can be moved earlier, so long as the facts areclear and there is reasonable basis for apprehending arrest.

(2) It may be advisable for the court, which is approached with anapplication under Section 438, depending on the seriousness of the threat(of arrest) to issue notice to the public prosecutor and obtain facts, evenwhile granting limited interim anticipatory bail.

(3) Nothing in Section 438 Cr. PC, compels or obliges courts toimpose conditions limiting relief in terms of time, or upon filing of FIR, orrecording of statement of any witness, by the police, during investigationor inquiry, etc. While considering an application (for grant of anticipatorybail) the court has to consider the nature of the offence, the role of theperson, the likelihood of his influencing the course of investigation, ortampering with evidence (including intimidating witnesses), likelihood offleeing justice (such as leaving the country), etc. The courts would bejustified – and ought to impose conditions spelt out in Section 437 (3), Cr.PC [by virtue of Section 438 (2)]. The need to impose other restrictiveconditions, would have to be judged on case by case basis, and dependingupon the materials produced by the state or the investigating agency.Such special or other restrictive conditions may be imposed if the caseor cases warrant, but should not be imposed in routine manner, in allcases. Likewise, conditions which limit the grant of anticipatory bail maybe granted, if they are required in the facts of any case or cases; however,such limiting conditions may not be invariably imposed.

54 1980 (2) SCC 565

A(4) Courts ought to be generally guided by considerations such asthe nature and gravity of the offences, the role attributed to the applicant,and the facts of the case, while considering whether to grant anticipatorybail, or refuse it. Whether to grant or not is matter of discretion; equallywhether and if so, what kind of special conditions are to be imposed (ornot imposed) are dependent on facts of the case, and subject to theBdiscretion of the court.

(5) Anticipatory bail granted can, depending on the conduct andbehavior of the accused, continue after filing of the charge sheet till endof trial.C(6) An order of anticipatory bail should not be “blanket” in thesense that it should not enable the accused to commit further offencesand claim relief of indefinite protection from arrest. It should be confinedto the offence or incident, for which apprehension of arrest is sought, inrelation to specific incident. It cannot operate in respect of futureincident that involves commission of an offence.D(7) An order of anticipatory bail does not in any manner limit orrestrict the rights or duties of the police or investigating agency, toinvestigate into the charges against the person who seeks and is grantedpre-arrest bail.

(8) The observations in Sibbia regarding “limited custody” orE“deemed custody” to facilitate the requirements of the investigativeauthority, would be sufficient for the purpose of fulfilling the provisionsof Section 27, in the event of recovery of an article, or discovery of afact, which is relatable to statement made during such event (i.e deemedcustody). In such event, there is no question (or necessity) of asking theaccused to separately surrender and seek regular bail. Sibbia (supra)Fhad observed that “if and when the occasion arises, it may be possiblefor the prosecution to claim the benefit of Section 27 of the EvidenceAct in regard to discovery of facts made in pursuance of informationsupplied by person released on bail by invoking the principlestated by this Court in State of U.P. v Deoman Upadhyaya.”G

(9) It is open to the police or the investigating agency to move thecourt concerned, which grants anticipatory bail, for direction underSection 439 (2) to arrest the accused, in the event of violation of anyterm, such as absconding, non-cooperating during investigation, evasion,intimidation or inducement to witnesses with view to influence outcomeHof the investigation or trial, etc.

SUSHILA AGGARWAL v. STATE (NCT OF DELHI)[ARUN MISHRA, INDIRA BANERJEE, VINEET SARAN, M. R. SHAH ANDS. RAVINDRA BHAT, JJ.]

(10) The court referred to in para (9) above is the court whichgrants anticipatory bail, in the first instance, according to prevailingauthorities.

(11) The correctness of an order granting bail, can be consideredby the appellate or superior court at the behest of the state or investigatingagency, and set aside on the ground that the court granting it did notconsider material facts or crucial circumstances. (See Prakash Kadam& Etc. Etc vs Ramprasad Vishwanath Gupta & Anr[55]; Jai PrakashSingh (supra) State through C.B.I. vs. Amarmani Tripathi[56]). Thisdoes not amount to “cancellation” in terms of Section 439 (2), Cr. PC.

(12) The observations in Siddharam Satlingappa Mhetre v. Stateof Maharashtra & Ors[57](and other similar judgments) that no restrictiveconditions at all can be imposed, while granting anticipatory bail arehereby overruled. Likewise, the decision in Salauddin AbdulsamadShaikh v. State of Maharashtra[58]and subsequent decisions (includingK.L. Verma v. State & Anr[59]; Sunita Devi v. State of Bihar & Anr[60];Adri Dharan Das v. State of West Bengal[61]; Nirmal Jeet Kaur v.State of M.P. & Anr[62]; HDFC Bank Limited v. J.J. Mannan[63]; SatpalSingh v. the State of Punjab[64]and Naresh Kumar Yadav v RavindraKumar[65]) which lay down such restrictive conditions, or terms limitingthe grant of anticipatory bail, to period of time are hereby overruled.

2. The reference is hereby answered in the above terms.