TaxTMI 
TaxTMI 
2020 (1) TMI 1193
X X X X Extracts X X X X
X X X X Extracts X X X X
...., the following questions are referred for consideration by a larger Bench: "(1) Whether the protection granted to a person under Section 438 Cr.P.C. should be limited to a fixed period so as to enable the person to surrender before the Trial Court and seek regular bail. (2) Whether the life of an anticipatory bail should end at the time and stage when the accused is summoned by the court." 2. Shri Harin P. Raval, learned Senior Advocate appearing as Amicus Curiae relying upon the decision of this Court in the case of Balchand Jain v. State of M.P. (1976) 4 SCC 572 has submitted that though the expression "anticipatory bail" has not been defined in the Code, as observed by this Court in the aforesaid decision, "anticipatory bail" means "bail in anticipation of arrest". It is submitted that in the aforesaid decision, this Court has further observed that the expression "anticipatory bail" is a misnomer inasmuch as it is not as if bail is presently granted by the Court in anticipation of arrest. It is submitted that when a competent court grants "anticipatory bail", it makes an order that in the event of arrest, a person shall be released on bail. It i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Public Prosecutor. It is submitted that therefore once the bail is granted in anticipation of the arrest, there is no reason to limit the same till the summon is issued by the Court and/or there is no reason to limit the period of bail in anticipation granted. 2.3. Shri Harin P. Raval, learned Senior Advocate appearing as Amicus Curiae has further submitted that in the case of Gurbaksh Singh Sibbia (supra), a Constitution Bench of this Court has observed and held that the facility which Section 438, Cr. P.C. affords is generally referred to as "anticipatory bail", an expression which was used by the Law Commission in its 41st Report. Neither the section nor its marginal note so describes it but, the expression "anticipatory bail" is a convenient mode of conveying that it is possible to apply for bail in anticipation of arrest. It is submitted that any order of bail can, of course, be effective only from the date of arrest because to grant bail as stated in Wharton's Law Lexicon, is to "set at liberty a person arrested or imprisoned, on security being taken for his appearance". It is submitted that thus, bail is basically release from restraint, more parti....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sted with absolute discretion to direct the duration of the trial which can vary from a few weeks to even such duration until charge sheet has been filed and which may also extend to the entire duration of the trial. It is submitted that it is further observed that the sole consideration must be with a view to balance the two competing interests, viz., protecting the liberty of the accused and the sovereign power of the police to conduct a fair investigation. Shri Raval, learned Amicus Curiae has heavily relied upon the observations made by the Constitution Bench of this Court in paragraphs 42 & 43 of Gurbaksh Singh Sibbia (supra). 2.6. It is further submitted by Shri Raval that in the subsequent decision of this Court in the case of Siddharam Satlingappa Mhetre (supra), this Court has taken the view that the order of anticipatory bail once granted ordinarily subsists during the entire duration of the trial. It is submitted that it is further observed that by that the power of the Sessions Court or that of the High Court to re­visit its order granting anticipatory bail is curtailed, in case circumstances exist or new exigencies arise which merit interferenc....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the aforesaid decisions of the Constitution Bench of this Court, Shri Raval, learned Amicus Curiae has concluded as under: 1) that the power vested by the Parliament on superior criminal courts in the order of hierarchy, such as Sessions Court and High Court, is a power entailing conferment of absolute discretion in deciding whether an application for anticipatory bail may be allowed or rejected, and also inheres in this discretion, the additional power to limit the duration of anticipatory bail to any point in time, or to any stage as the Courts may deem fit in the facts and circumstances of the case, and in view of all the attending circumstances; 2) that the order granting anticipatory bail will not interdict the power of the investigating agency to continue investigation of the case or would prevent the investigating agency to ask for and be granted, respectively, Police Custody of the accused for the purposes of the investigation and where the investigating officer feels that the custody of the accused is necessary. Further since police custody can be granted only in the first 14 days of the arrest, the decision to restrict the duration of the bail wou....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Amicus Curiae has submitted that the exercise of power under Section 438 is exactly like the exercise of power under Sections 437 and 439 of the Cr.P.C. It is submitted therefore, the pre­arrest bail granted in anticipation of arrest under Section 438 ought to operate like any other order granting bail till an order of conviction or till an affirmative direction is passed under Section 439(2) of the Cr.P.C. It is submitted that therefore the law laid down by this Court in the cases of Gurbaksh Singh Sibbia (supra) and Siddharam Satlingappa Mhetre (supra) lay down the correct law. It is submitted that the exceptions carved out in Gurbaksh Singh Sibbia (supra) particularly in paras 19, 42 and 43 are well within the scheme of the Code. 3.1 It is further submitted by Shri Vishwanathan, learned Amicus Curiae that the power of arrest of the police is under Section 41 of the Cr.P.C. It is submitted that this Section has two essential parts. One, relating to offences in which the maximum punishment can extend to imprisonment for seven years. Second, relating to offences in which the maximum punishment can extent to imprisonment above seven years or deat....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ised in the present reference need to be addressed. 3.4 Taking us to the recommendations in the 41st Report of the Law Commission and the observations made in the Report of the Committee on Reforms of the Criminal Justice system, headed by Dr. Justice V.S. Malimath, it is submitted by Shri Vishwanathan that Section 438 is a check on the power of arrest of the police. It is submitted that as stated in the above Law Commission Report, it is a check not only against false cases, but also in cases where the need to arrest does not arise. 3.5 It is further submitted that even otherwise a bare reading of the Section shows that there is nothing in the language of the Section which goes to show that the prearrest bail granted under Section 438 has to be time­bound. It is submitted that the position is the same as in Sections 437 and 439. It is submitted that at this stage Section 438(3) is relevant to be taken into consideration. It is submitted that there are two very important aspects in Section 438(3) Cr.P.C. which are relevant to be considered to understand the scheme of the Code, viz., (a) a person in whose favour a prearrest bail order has been made under ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 3.7 Shri Vishwanathan, learned Amicus Curiae, while making the aforesaid submissions and relying upon the aforesaid decisions of this Court, has concluded that the prearrest bail granted under Section 438 of the Code is exactly like the orders of bail passed under Sections 437 and 439 of the Code; the Code does not contemplate any power in the hands of the Courts to pass time­bound orders under Section 438 for good reason; on the other hand, the investigating agency can approach the Court under Section 439(2) and in the event of the police making out a case, the Court has all the powers to direct the accused to be taken into custody. 4. Shri Tushar Mehta, learned Solicitor General of India has heavily relied upon paras 42 and 43 of Gurbaksh Singh Sibbia (supra) and has submitted that as observed and held by the Constitution Bench of this Court that the Court can in a given case and for justifiable reasons limit the period of anticipatory bail. It is submitted that this Court in the case of Siddharam Satlingappa Mhetre (supra) has misread the judgment in Gurbaksh Singh Sibbia (supra) to a limited extent. It is submitted that to the extent Siddharam Satlingappa....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the correct law. It is submitted that, at the same time, the Hon'ble Courts have deprecated the practice of blanket orders of bail/anticipatory bail. It is submitted that there are eventualities arising in every case may be different and therefore are required to be dealt with accordingly, in the facts and circumstances of each case. It is submitted that even while granting the anticipatory bail, the right of the investigating agency to seek custodial interrogation cannot be hampered mechanically. 5. Relying upon the decisions of this Court in the cases of HDFC Bank Ltd. (supra) and Satpal Singh (supra), it is submitted by Shri Vikramjit Banerjee, learned Additional Solicitor General of India that as held by this Court in the aforesaid decisions, the purpose of Section 438 is providing protection only during the process of investigation and the accused should seek regular bail upon submission of the charge sheet against him from the court where entire material is placed. It is submitted that in any case grant of the pre­arrest bail under Section 438 Cr.P.C. shall not affect the right of the investigating agency to seek custodial interrogation and in conduc....
X X X X Extracts X X X X
X X X X Extracts X X X X
....number of subsequent judgments. It is submitted that the decision of this Court in Salauddin Abdulsamad Shaikh (supra) and subsequent judgments following Salauddin Abdulsamad Shaikh (supra) are all per incuriam. 6.2 It is further submitted by the learned Counsel appearing on behalf of respondent no.2 that as a normal rule, it is not required to limit the duration of anticipatory bail. It is submitted that however, court while granting anticipatory bail may, keeping in view the peculiar facts and circumstances of the case, limit the duration of anticipatory bail. It is submitted that the life of anticipatory bail would not end on filing of charge sheet. 6.3 It is further submitted by the learned counsel appearing on behalf of respondent no.2 that both the questions of law framed for consideration by the larger Bench does not arise for consideration. It is submitted that considering the elaborate reasons given by the Constitution Bench in not putting any fetters or limitations on the discretionary power of a court to grant anticipatory bail and as there is no ambiguity in the judgment of the Constitution Bench, this Court may reiterate the judgment....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 439 is the stages at which the bail order is passed. The bail order under Section 438 of the Cr.P.C. is prior to his arrest and in anticipation of his arrest and the order of bail under Sections 437 and 439 is after a person is arrested. A bare reading of Section 438 of the Cr.P.C. shows that there is nothing in the language of the Section which goes to show that the pre­arrest bail granted under Section 438 has to be time bound. The position is the same as in Section 437 and Section 439 of the Cr.P.C. 7.2 While considering the issues referred to a larger Bench, referred to hereinabove, the decision of the Constitution Bench of this Court in Gurbaksh Singh Sibbia (supra) is required to be referred to and considered in detail. The matter before the Constitution Bench in the case of Gurbaksh Singh Sibbia (supra) was arising out of the decision of the Full Bench of the Punjab and Haryana High Court. The High Court rejected the application for bail after summarising, what according to it was the true legal position, thus, "(1) The power under Section 438, Criminal Procedure Code, is of an extraordinary character and must be exercised sparingly in exce....
X X X X Extracts X X X X
X X X X Extracts X X X X
....presumption of innocence. Though the right to apply for anticipatory bail was conferred for the first time by Section 438, while enacting that provision the legislature was not writing on a clean slate in the sense of taking an unprecedented step, insofar as the right to apply for bail is concerned. It had before it two cognate provisions of the Code: Section 437 which deals with the power of courts other than the Court of Session and the High Court to grant bail in non­bailable cases and Section 439 which deals with the "special powers" of the High Court and the Court of Session regarding bail..... The provisions of Sections 437 and 439 furnished a convenient model for the legislature to copy while enacting Section 438. If it has not done so and has departed from a pattern which could easily be adopted with the necessary modifications, it would be wrong to refuse to give to the departure its full effect by assuming that it was not intended to serve any particular or specific purpose. The departure, in our opinion, was made advisedly and purposefully: Advisedly, at least in part, because of the 41st Report of the Law Commission which, while pointing out the necessity o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t. That is the stage at which it is imperative to protect his freedom, insofar as one may, and to give full play to the presumption that he is innocent. In fact, the stage at which anticipatory bail if generally sought brings about its striking dissimilarity with the situation in which a person who is arrested for the commission of a non­bailable offence asks for bail. In the latter situation, adequate data is available to the court, or can be called for by it, in the light of which it can grant or refuse relief and while granting it, modify it by the imposition of all or any of the conditions mentioned in Section 437. 13. This is not to say that anticipatory bail, if granted, must be granted without the imposition of any conditions. That will be plainly contrary to the very terms of Section 438. Though sub­section (1) of that section says that the court "may, if it thinks fit" issue the necessary direction for bail, sub­section (2) confers on the court the power to include such conditions in the direction as it may think fit in the light of the facts of the particular case, including the conditions mentioned in clauses (i) to (iv) of that sub­section. The ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ction 438(1), nothing would have been easier for the legislature than to introduce into the latter section a similar provision. We have already pointed out the basic distinction between these two sections. Section 437 applies only after a person, who is alleged to have committed a non­bailable offence, is arrested or detained without warrant or appears or is brought before a court. Section 438 applies before the arrest is made and, in fact, one of the pre­conditions of its application is that the person, who applies for relief under it, must be able to show that he has reason to believe that "he may be arrested", which plainly means that he is not yet arrested. The nexus which this distinction bears with the grant or refusal of bail is that in cases falling under Section 437, there is some concrete data on the basis of which it is possible to show that there appear to be reasonable grounds for believing that the applicant has been guilty of an offence punishable with death or imprisonment for life. In cases falling under Section 438 that stage is still to arrive and, in the generality of cases thereunder, it would be premature and indeed difficult to predicate that there ar....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ht to their notice and therefore, courts should be careful not to exercise their powers in a manner which is calculated to cause interference therewith. ..... An order of anticipatory bail does not in any way, directly or indirectly, take away from the police their right to investigate into charges made or to be made against the person released on bail. In fact, two of the usual conditions incorporated in a direction issued under Section 438(1) are those recommended in sub­section (2)(i) and (ii) which require the applicant to cooperate with the police and to assure that he shall not tamper with the witnesses during and after the investigation. While granting relief under Section 438(1), appropriate conditions can be imposed under Section 438(2) so as to ensure an uninterrupted investigation. One of such conditions can even be that in the event of the police making out a case of a likely discovery under Section 27 of the Evidence Act, the person released on bail shall be liable to be taken in police custody for facilitating the discovery. Besides, if and when the occasion arises, it may be possible for the prosecution to claim the benefit of Section 27 of the Evidence Act in re....
X X X X Extracts X X X X
X X X X Extracts X X X X
....as containing something volatile or incendiary, which needs to be handled with the greatest care and caution imaginable. A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail. 22. By proposition No. 1 the High Court says that the power conferred by Section 438 is "of an extraordinary character and must be exercised sparingly in exceptional cases only". It may perhaps be right to describe the power as of an extraordinary character because ordinarily the bail is applied for under Section 437 or Section 439. These sections deal with the power to grant or refuse bail to a person who is in the custody of the police and that is the ordinary situation in whic....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d for a non­bailable offence. The use of the expression "reason to believe" shows that the belief that the applicant may be so arrested must be founded on reasonable grounds. Mere 'fear' is not 'belief", for which reason it is not enough for the applicant to show that he has some sort of a vague apprehension that some one is going to make an accusation against him, in pursuance of which he may be arrested. The grounds on which the belief of the applicant is based that he may be arrested for a non­bailable offence, must be capable of being examined by the court objectively, because it is then alone that the court can determine whether the applicant has reason to believe that he may be so arrested. Section 438(1), therefore, cannot be invoked on the basis of vague and general allegations, as if to arm oneself in perpetuity against a possible arrest. Otherwise, the number of applications for anticipatory bail will be as large as, at any rate, the adult populace. Anticipatory bail is a device to secure the individuals liberty; it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations, likely or unlikely 36. Secondly, if ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e applicant founded on reasonable grounds that he may be arrested for a non­bailable offence. It is unrealistic to expect the applicant to draw up his application with the meticulousness of a pleading in a civil case and such is not requirement of the section. But specific events and facts must be disclosed by the applicant in order to enable the court to judge of the reasonableness of his belief, the existence of which is the sine qua non of the exercise of power conferred by the section. 41. Apart from the fact that the very language of the statute compels this construction, there is an important principle involved in the insistence that facts, on the basis of which a direction under Section 438(1) is sought, must be clear and specific, not vague and general. It is only by the observance of that principle that a possible conflict between the right of an individual to his liberty and the right of the police to investigate into crimes reported to them can be avoided. A blanket order of anticipatory bail is bound to cause serious interference with both the right and the duty of the police in the matter of investigation because, regardless of what kind of offence is alle....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... In certain exceptional cases, the court has, in view of the material placed before it, directed that the order of anticipatory bail will remain in operation only for a week or so until after the filing of the FIR in respect of matters covered by the order. These orders, on the whole, have worked satisfactorily, causing the least inconvenience to the individuals concerned and least interference with the investigational rights of the police. The court has attempted through those orders to strike a balance between the individual's right to personal freedom and the investigational rights of the police. The appellants who were refused anticipatory bail by various courts have long since been released by this Court under Section 438(1) of the Code." 7.4 The aforesaid decision of the Constitution Bench in the case of Gurbaksh Singh Sibbia (supra) holds the field for number of years and the same has been followed by all the Courts in the country. While granting anticipatory bail, normally following conditions are imposed by the court/courts which as such are in consonance with the decision of the Constitution Bench in the case of Gurbaksh Singh Sibbia (supra) and Section 438(2) rea....
X X X X Extracts X X X X
X X X X Extracts X X X X
....by the Constitution Bench of this Court in Gurbaksh Singh Sibbia (supra) that the normal rule should be not to limit the operation of the order in relation to a period of time, in other words in an appropriate case and looking to the facts and circumstances of the case and the stage at which the pre­arrest bail application was made, the court concerned can limit the operation of the order in relation to a period of time, on absolute misreading of the judgment in the case of Gurbaksh Singh Sibbia (supra) and just contrary to the observations made in paragraphs 42 and 43, an absolute proposition of law is laid down that the life of the order under Section 438, Cr. P.C. granting bail cannot be curtailed. Despite the clear cut observations made by the Constitution Bench in Gurbaksh Singh Sibbia (supra) made in paragraphs 42 and 43, in the case of Salauddin Abdulsamad Shaikh (supra), a three Judge Bench of this Court has observed and held that the order of "anticipatory bail" has to be necessarily limit in time frame. In many cases subsequently the decision in the case of Salauddin Abdulsamad Shaikh (supra) has been followed, despite the specific observations....
X X X X Extracts X X X X
X X X X Extracts X X X X
....anting pre­arrest bail order including limiting the operation of the order in relation to a period of time if the circumstances so warrant, more particularly 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 the stage when the FIR is filed and the investigation is in progress or at the stage when the investigation is complete and the charge sheet is filed. However, as observed hereinabove, the normal rule should be not to limit the order in relation to a period of time. RAVINDRA BHAT, J. JUDGEMENT 1. I have gone through the reasoning and conclusions of Justice M.R. Shah. I am in agreement with his judgment. However, I am supplementing the conclusions arrived at by Shah, J with this separate judgment since I am of the view that while there is no disagreement on the essential reasoning, some aspects need to be discussed, in addition. 2. The following questions have been referred to this larger bench of five judges: (1) Whether the protection granted to a person under Section 438 Cr. PC shouldbe limited to a fixed period so as to enable the person to surrend....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... under Section 439 Cr. PC. The court also noticed, that on the other hand, the observations in Sibbia did not suggest such an inflexible approach. The second line of cases included Siddharam Satlingappa Mhetre v. State of Maharashtra & Ors 2011 (1) SCC 694 and Bhadresh Bipinbhai Sheth v. State of Gujarat & Anr 2016 (1) SCC 152; these held that no conditions ought to be imposed by the court, whilst granting anticipatory bail, which was to inure and protect the individual indefinitely- even when charges were framed in a given criminal case, leading to trial- till the end of the trial. 5. The court, in Sibbia, elaborately dealt with the background which led to the introduction of the provision for anticipatory bail. It took note of the forty first report of the Law Commission, on whose recommendations the provision was introduced. Sibbia traced the history of the provision, from the stage of the recommendation, to the draft bill and later its enactment, observing as follows: "4. The CrPC, 1898 did not contain any specific provision corresponding to the present Section 438. Under the old Code, there was a sharp difference of opinion amongst the various High Courts on ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... (2) A Magistrate taking cognizance of an offence against thatperson shall, while taking steps Under Section 204(1), either issue summons or a bailable warrant as indicated in the direction of the Court under Sub-section (1). (3) if any person in respect of whom such a direction is made isarrested without warrant by an officer in charge of a police station on an accusation of having committed that; offence, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, such person shall be released on bail." We considered carefully the question of laying down in the statute certain conditions under which alone anticipatory bail could be granted. But we found that it may not be practicable to exhaustively enumerate those conditions; and moreover, the laying down of such conditions may be construed as prejudging (partially at any rate) the whole case. Hence we would leave it to the discretion, of the; court and prefer not to fetter such discretion in the statutory provision itself. Superior Courts will, undoubtedly, exercise their discretion properly, and not make any observations in the order granting anticipat....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rtain modifications and became Section 438 of the CrPC, 1973 which we have extracted at the outset of this judgment." 6. The context of Sibbia was the correctness of a decision of the Full Bench of the Punjab and Haryana High Court, which restrictively interpreted Section 438 and held that the power under Section 438, "is extra-ordinary" and must be exercised sparingly in exceptional cases only; that it does not empower the grant of anticipatory bail in a blanket manner, in respect of offences not yet committed or with regard to accusations not yet levelled; that it is not an unguided power, but subject to limitations in Section 437 - which are implicit and must be read into Section 438. The Full Bench also held that the petitioner must "must make out a special case for the exercise of the power to grant anticipatory bail"; and further that where a legitimate case for remand to police custody is made or a reasonable claim to secure incriminating material from information likely to be received from the offender "under Section 27 of the Evidence Act can be made out, the power Under Section 438 should not be exercised." The full bench held that Section 438 cannot be availed in resp....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ief in the nature of anticipatory bail. That is why, departing from the terms of Sections 437 and 439, Section 438(1) uses the language that the High Court or the Court of Session "may, if it thinks fit" direct that the applicant be released on bail. Sub-section (2) of Section 438 is a further and clearer manifestation of the same legislative intent to confer a wide discretionary power to grant anticipatory bail. It provides that the High Court or the Court of Session, while issuing a direction for the grant of anticipatory bail, "may include such conditions in such directions in the light of the facts of the particular case, as it may think fit", including the conditions which are set out in clauses (i) to (iv) of sub-section (2). The proof of legislative intent can best be found in the language which the legislature uses. Ambiguities can undoubtedly be resolved by resort to extraneous aids but words, as wide and explicit as have been used in Section 438, must be given their full effect, especially when to refuse to do so will result in undue impairment of the freedom of the individual and the presumption of innocence. It has to be borne in mind that anticipatory bail is sought wh....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he circumstances of the case so warrant, on considerations similar to those mentioned in Section 437 or which are generally considered to be relevant under Section 439 of the Code. 14. Generalizations on matters which rest on discretion and the attempt todiscover formulae of universal application when facts are bound to differ from case to case frustrate the very purpose of conferring discretion. No two cases are alike on facts and therefore, courts have to be allowed a little free play in the joints if the conferment of discretionary power is to be meaningful. There is no risk involved in entrusting a wide discretion to the Court of Session and the High Court in granting anticipatory bail because, firstly, these are higher courts manned by experienced persons, secondly, their orders are not final but are open to appellate or revisional scrutiny and above all because, discretion has always to be exercised by courts judicially and not according to whim, caprice or fancy. On the other hand, there is a risk in foreclosing categories of cases in which anticipatory bail may be allowed because life throws up unforeseen possibilities and offers new challenges. Judicial discretion....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nto the charges contained in the FIR. We are concerned here with a situation of an altogether different kind. An order of anticipatory bail does not in any way, directly or indirectly, take away from the police their right to investigate into charges made or to be made against the person released on bail. In fact, two of the usual conditions incorporated in a direction issued under Section 438(1) are those recommended in sub-section (2)(i) and (ii) which require the applicant to cooperate with the police and to assure that he shall not tamper with the witnesses during and after the investigation. While granting relief under Section 438(1), appropriate conditions can be imposed under Section 438(2) so as to ensure an uninterrupted investigation. One of such conditions can even be that in the event of the police making out a case of a likely discovery under Section 27 of the Evidence Act, the person released on bail shall be liable to be taken in police custody for facilitating the discovery. Besides, if and when the occasion arises, it may be possible for the prosecution to claim the benefit of Section 27 of the Evidence Act in regard to a discovery of facts made in pursuance of inf....
X X X X Extracts X X X X
X X X X Extracts X X X X
....h the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail. --------- ---------- --------- 22. By proposition No. 1 the High Court says that the power conferred bySection 438 is "of an extraordinary character and must be exercised sparingly in exceptional cases only". It may perhaps be right to describe the power as of an extraordinary character because ordinarily the bail is applied for under Section 437 or Section 439. These sections deal with the power to grant or refuse bail to a person who is in the custody of the police and that is the ordinary situation in which bail is generally applied for. But this does not justify the conclusion that the power must be exercised in exceptional cases only, because it is of an extraordinary character. We will really be saying once too often that all discretion has to be exercised with care and circumspection, depending on circumstances justifying its exercise. It is unnecessary to travel beyond it and subject the wide power conferred by the legislature ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e in its wisdom" has thought it fit to use a particular expression. A convention may usefully grow whereby the High Court and the Court of Session may be trusted to exercise their discretionary powers in their wisdom, especially when the discretion is entrusted to their care by the legislature in its wisdom. If they err, they are liable to be corrected. 34. This should be the end of the matter, but it is necessary to clarify a fewpoints which have given rise to certain misgivings. 35. Section 438(1) of the Code lays down a condition which has to besatisfied before anticipatory bail can be granted. The applicant must show that he has "reason to believe" that he may be arrested for a non-bailable offence. The use of the expression "reason to believe" shows that the belief that the applicant may be so arrested must be founded on reasonable grounds. Mere 'fear' is not 'belief', for which reason it is not enough for the applicant to show that he has some sort of a vague apprehension that some one is going to make an accusation against him, in pursuance of which he may be arrested. The grounds on which the belief of the applicant is based that he may be arrested for a n....
X X X X Extracts X X X X
X X X X Extracts X X X X
....only if there is something tangible to go by on the basis of which it can be said that the applicant's apprehension that he may be arrested is genuine. That is why, normally, a direction should not issue under Section 438(1) to the effect that the applicant shall be released on bail "whenever arrested for whichever offence whatsoever". That is what is meant by a 'blanket order' of anticipatory bail, an order which serves as a blanket to cover or protect any and every kind of allegedly unlawful activity, in fact any eventuality, likely or unlikely regarding which, no concrete information can possibly be had. The rationale of a direction under Section 438(1) is the belief of the applicant founded on reasonable grounds that he may be arrested for a non-bailable offence. It is unrealistic to expect the applicant to draw up his application with the meticulousness of a pleading in a civil case and such is not requirement of the section. But specific events and facts must be disclosed by the applicant in order to enable the court to judge of the reasonableness of his belief, the existence of which is the sine qua non of the exercise of power conferred by the section. 41. Apar....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... be followed as an invariable rule. The normal rule should be not to limit the operation of the order in relation to a period of time. 43. During the last couple of years this Court, while dealing with appealsagainst orders passed by various High Courts, has granted anticipatory bail to many a person by imposing conditions set out in Section 438(2) (i), (ii) and (iii). The court has, in addition, directed in most of those cases that (a) the applicant should surrender himself to the police for a brief period if a discovery is to be made under Section 27 of the Evidence Act or that he should be deemed to have surrendered himself if such a discovery is to be made. In certain exceptional cases, the court has, in view of the material placed before it, directed that the order of anticipatory bail will remain in operation only for a week or so until after the filing of the FIR in respect of matters covered by the order. These orders, on the whole, have worked satisfactorily, causing the least inconvenience to the individuals concerned and least interference with the investigational rights of the police. The court has attempted through those orders to strike a balance between the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
......This Court further observed that anticipatory bail is granted in anticipation of arrest in non- bailable cases, but that does not mean that the regular court, which is to try the offender, is sought to be bypassed...By this, what the Court desired to convey was that an order of anticipatory bail does not enure till the end of trial but it must be of limited duration as the regular court cannot be bypassed. The limited duration must be determined having regard to the facts of the case and the need to give the accused sufficient time to move the regular court for bail and to give the regular court sufficient time to determine the bail application. In other words, till the bail application is disposed of one way or the other the court may allow the accused to remain on anticipatory bail. ..... This decision was not intended to convey that as soon as the accused persons are produced before the regular court the anticipatory bail ends even if the court is yet to decide the question of bail on merit s. The decision in Salauddin case [(1996) 1 SCC 667] has to be so understood." 10. Again, Sunita Devi; Nirmal Jeet Kaur and Adri Dharan Das (supra) are three late....
X X X X Extracts X X X X
X X X X Extracts X X X X
....trial court." 11. In the light of these decisions, which narrowed the scope and jurisdiction under Section 438, the judgment in Mhetre noticed that Sibbia was by a Bench of five judges, which indicated that imposition of restrictions for granting anticipatory bail was not always necessary. The court, in Mhetre observed as follows: "... Those orders are contrary to the law laid down by the judgment 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 the personal liberty of the people, as enshrined under Article 21 of the Constitution, then the courts need to take serious notice of it. When conviction rate is admittedly less than 10%, then the police should be slow in arresting the accused. The courts considering the bail application should try to maintain fine balance between the societal interest vis-à-vis personal liberty while adhering to the fundamental principle of criminal jurisprudence that the accused that the accused is presumed to be innocent till he is found guilty by the competent court. 94. The complaint filed against the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s full play. The Constitution Bench has also observed that the High Court is not right in observing that the accused must make out a "special case" for the exercise of the power to grant anticipatory bail. This virtually, reduces the salutary power conferred by section 438 Cr.P.C. to a dead letter. The Court observed that "We do not see why the provisions of Section 438 Cr.P.C. should be suspected as containing something volatile or incendiary, which needs to be handled with the greatest care and caution imaginable." 99. As aptly observed in Sibbia's case (supra) that a wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail. 100. The Constitu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....on 438 by a wise and careful use of their discretion which, by their long training and experience, they are ideally suited to do. The ends of justice will be better served by trusting these courts to act objectively and in consonance with principles governing the grant of bail which are recognized over the years, than by divesting them of their discretion which the legislature has conferred upon them, by laying down inflexible rules of general application. It is customary, almost chronic, to take a statute as one finds it on the grounds that, after all "the legislature in, its wisdom" has thought it fit to use a particular expression. A convention may usefully grow whereby the High Court and the Court of Session may be trusted to exercise their discretionary powers in their wisdom, especially when the discretion is entrusted to their care by the legislature in its wisdom. If they err, they are liable to be corrected." GRANT OF BAIL FOR LIMITED PERIOD IS CONTRARY TO THE LEGISLATIVE INTENTION AND LAW DECLARED BY THE CONSTITUTION BENCH: 105. The court which grants the bail has the right to cancel the bail according to the provisions of the General Clauses Act but ord....
X X X X Extracts X X X X
X X X X Extracts X X X X
....render before the trial court and again apply for regular bail. 111. The court must bear in mind that at times the applicant would approach the court for grant of anticipatory bail on mere apprehension of being arrested on accusation of having committed a non-bailable offence. In fact, the investigating or concerned agency may not otherwise arrest that applicant who has applied for anticipatory bail but just because he makes an application before the court and gets the relief from the court for a limited period and thereafter he has to surrender before the trial court and only thereafter his bail application can be considered and life of anticipatory bail comes to an end. This may lead to disastrous and unfortunate consequences. The applicant who may not have otherwise lost his liberty loses it because he chose to file application of anticipatory bail on mere apprehension of being arrested on accusation of having committed a non-bailable offence. No arrest should be made because it is lawful for the police officer to do so. The existence of power to arrest is one thing and the justification for the exercise of it is quite another. The polic....
X X X X Extracts X X X X
X X X X Extracts X X X X
....uited to do. In any event, this is the legislative mandate which we are bound to respect and honour. 122. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail: i. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; ii. The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a 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 similar or the other offences. v. Where the accusations have been made only with the object of injuring orhumiliating the applicant by arresting him or her. vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people. vii. The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The c....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ngly incongruent strands of reasoning- stemming from the two distinct line of precedents, spawning divergent approaches to the scope of jurisdiction under Section 438 have impelled the reference to this larger Bench. The provisions 13. For completeness, it is essential to set out the relevant provisions: to wit, Sections 437, 438 and 439 of the Code of Criminal Procedure, 1974 (hereafter variously "Cr.PC" and "the Code"). They are reproduced in the footnote below. "437. When bail may be taken in case of non- bailable offence. (1) When any person accused of, or suspected of, the commission of any non- bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail, but- (i) such person shall not be so released if there appear reasonablegrounds for believing that he has been guilty of an offence punishable with death or imprisonment for life; (ii) such person shall not be so released if such offence is a cognizableoffence and he had been previously convicted of an offence punishable....
X X X X Extracts X X X X
X X X X Extracts X X X X
....) that such person shall not commit an offence similar to the offenceof which he is accused or suspected of the commission of which he is suspected, and (c) that such person shall not directly or indirectly make anyinducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him for disclosing such facts to the Court or to any police officer or tamper with the evidence, and may also impose in the interest of justice such other conditions as it considers necessary. (4) An officer or a Court releasing any person on bail under subsection (1) or sub- section (2), shall record in writing his or its reasons or special reasons for so doing. (5) Any Court which has released a person on bail under sub- section(1) or sub- section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody. (6) If, in any case triable by a Magistrate, the trial of a person accusedof any non- bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in custody during the whole of the said ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... officer in charge of police station to arrest without warrant the applicant on the basis of the accusation apprehended in such application (IA) Where the Courts grants an interim order under sub-section (1), it shall forthwith cause a notice being not less than seven days notice, together with the copy of such order to be served on the Public Prosecutor and the Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court (IB) The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice.] ----------------------------------------------------------------------------------------------- The unamended portion- Section 438 (2) and (3), and the newly introduced sub-section (4) read as follows: (2) When the High Court or the Court of Session makes a direction under sub- section (1), it may include such conditions in such....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... in writing, of opinion that it is not practicable to give such notice. Provided further that the High Court or the Court of Session shall before granting bail to a 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 376 DB of the Indian Penal Code (45 of 1860) give notice of the application for bail to the Public Prosecutor within a period of fifteen days from the date of receipt of the notice of such application. (IA) The presence of the informant or any person authorised by him shall be obligatory at the time of hearing of the application for bail to the person under sub-Section (3) of the Section 376 or Section 376 AB or Section 376 DA or Section 376 DB of the Indian Penal Code (45 of 1860) (2). A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody." Contentions of parties 14. Mr. Abhay Kumar, for the petitioner, argued that it is not correct to find any limitation on the life span of an order of anticipatory bail in terms of its duration by reading the para 42 of Sibbia Case; an....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rge of police station or Court in terms of prescribes format of Form No. 45 of Schedule 2 of the Code by giving necessary details. Bail, it was highlighted, can be given at any stage: pre-trial, during trial and even after completion of trial. Counsel submitted that apart from provisions in Chapter XXXII of Cr.PC (Sections 436-450), there are other provisions relevant on the issue, i.e. Section 360 (Order to release on probation of good conduct or after admonition, a post-conviction stage and Section389 (Suspension of sentence pending the appeal and release of appellant on bail - postconviction and during pendency of Appeal). Section 438 manifests the principle of liberty. 17. Counsel highlighted that anticipatory bail is panacea for apprehension of arrest in false case. Anticipatory bail protects from trauma and stigma of arrest of an innocent (in most of the cases, full of various responsibilities and even being sole bread earner of her/his family members), consequently prohibiting in creating reverse victims by way of dependent upon the said accused. An elementary postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is beli....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ted in the Code to ensure this end by both i.e. the prosecuting agency including complainant/victim and also to the concerned court- by filing of cancellation of bail by former and issuance of bailable and non-bailable warrant by the latter. Counsel argued that in any case, rejection of an application for anticipatory bail, at first instance, does not automatically give rise to evil consequences for an accused to surrender and seek regular bail. The filing of subsequent anticipatory bail and grant of the relief by a competent court of law in a suitable case, upon showing proper and inspiring subsequent chance in circumstances in favour of accused, is sufficient indicative factor of the proposition that a rejection of anticipatory will generate no automatic warrant for an accused to surrender and seek regular bail. If subsequent and material change or circumstance can be a plausible reason for cancellation of bail, is should definitely, considering the valuable right of an accused, equally there can be a reason for applying fresh application for anticipatory bail in a suitable case. Having regard to all these factors, counsel urged this court to endorse the reasoning in Mhetre which....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ry the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction: Provided that- (a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days; if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding,- (i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years; (ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub- section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;.." amounts to deemed bail under Chapter XXXIII of the Code....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y, this has to be at the centre of every consideration of penal statutes and their interpretation. 23. It was also submitted that Section 438 being part of procedure established by law is to be construed in a fair, just and reasonable manner. Learned counsel reiterated that this was what the Court highlighted in Sibbia. Mr. Vishwanathan, after outlining the background of Section 438 - in the context of the observations of the 41st Law Commission Report submitted that those comments should also be considered in the light of the observations made in the Report of the Committee on Reforms of the Criminal Justice System by Dr. Justice V.S. Malimath. Reliance on para 7.26.3. The Report remarked - after considering 3rd Report of the National Police Commission that the "power of arrest was one of the chief sources of corruption in the police. The report suggested that by and large nearly 60% of the arrests were either unnecessary or unjustified and that such unjustified police action accounted for 43.2% of the expenditure of the prison department". 24. It was urged that the power of arrest with the police is under Section 41 of the CrPC. That provision is in two....
X X X X Extracts X X X X
X X X X Extracts X X X X
....eme of the Code: a) A person in whose favour a pre-arrest bail order has been made under Section 438 has to first be arrested. Such person is then released on bail on the basis of the pre-arrest bail order. For such release the person has to comply with the requirement of Section 441 of giving a bond or surety; and b) Where the magistrate taking cognizance u/s 204 is of the view that a warrant is required to be issued at the first instance, such magistrate is only empowered to issue only a bailable warrant and not a non-bailable warrant. 26. This curtailment of power of the magistrate clearly shows Parliamentary intent that one who is granted relief under Section 438 ought not to be arrested at the stage of cognizance because of the said pre-arrest bail order. Considering this express provision, no other interpretation can be given to the said section. The second question referred here squarely covered by this sub-section. This order passed under Section 438, is a pre-arrest direction (to release on bail, in the event of arrest), is subject to the power granted to the Court of Session and the High Court under Section 439(2) Cr. P.C. It is clea....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ourt recognized the need for court's supervision after the bail had been granted. 28. Mr. Hiren Raval, learned amicus curiae, highlighted that while there are passages in Sibbia (supra), which support the arguments of the petitioners, that orders under Section 438 can be unconditional and not limited by time, the court equally struck a note of caution, and wished courts to be circumspect while making orders of anticipatory bail. In this regard, learned senior counsel highlighted paragraphs 42 and 43 of the decisions in Sibbia. 29. Elaborating on his submissions, the amicus submitted that whether to impose any conditions or limit the order of anticipatory bail in point of time undoubtedly falls within the discretion of the court seized of the application. He however submitted that this discretion should be exercised with caution and circumspection. Counsel submitted that there could be three situations when anticipatory bail applications are to be considered: one, when the application is filed in anticipation of arrest, before filing FIR; two, after filing FIR, but before the filing of the charge sheet; and three, after filing charge sheet. It was submitted that as a matter of....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e trial, per Section 27 of the Evidence Act. He submitted that if these concerns are taken into account, the declaration of law in Mhetre - particularly in Paras 122 and 123 that no condition can be imposed by court, in regard to applications for anticipatory bail, is erroneous; it is contrary to Para 42 and 43 of the declaration of law in Sibbia's case (supra). It was emphasized that ever since the decision in Salauddin and other subsequent judgments which followed it, the practise of courts generally was to impose conditions while granting anticipatory bail: especially conditions which required the applicant/ accused to apply for bail after 90 days, or surrender once the charge sheet was filed, and apply for regular bail. Counsel relied on Section 437(3) to say that the conditions spelt out in that provision are to be considered, while granting anticipatory bail, by virtue of Section 438(2). 32. Mr. Tushar Mehta, learned Solicitor General and Mr. Vikramjit Banerjee, learned Additional Solicitor General, submitted that the decision in Mhetre (supra) is erroneous and should be overruled. It was submitted that though Section 438 does not per se pre-suppose imposition of con....
X X X X Extracts X X X X
X X X X Extracts X X X X
....1995 Supp (3)SCC 419where this court considered the nature of the right of anticipatory bail and observed that: "We find it difficult to accept the contention that Section 438 of the Code of Criminal Procedure is an integral part of Article 21. In the first place, there was no provision similar to Section 438 in the old Code of Criminal Procedure......Also anticipatory hail cannot he granted as a matter of right. It is essentially a statutory right conferred long after the coming into force of the Constitution. It cannot he considered as an essential ingredient of Article 21 of the Constitution. and its nonapplication to a certain special category of offences cannot he considered as violative of Article 21." 35. The decisions in Savitri Agarwal v. State of Maharashtra & Anr 2009 (8) SCC 325, and Sibbia were referred to, to argue that before granting an order of anticipatory bail, the court should be satisfied that the applicant seeking it has reason to believe that he is likely to be arrested for a non-bailable offence and that belief must be founded on reasonable grounds. Mere "fear" is not belief; it is insufficient for an applicant to show that he has some sort of va....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s not necessary that the operation of an order passed under Section 438(1) of the Code be limited in point of time but the court may, if there are reasons for doing so, limit the operation of the order to a short period until after the filing of FIR in respect of the matter covered by the order. The applicant may, in such cases, be directed to obtain an order of bail under Section 437 or 439 of the Code within a reasonable short period after the filing of the FIR." 36. It was also argued on behalf of the Govt of NCT- and the Union, that this court had expressed a serious concern, time and again, that if accused or applicants who seek anticipatory bail are equipped with an unconditional order before they are interrogated by the police it would greatly harm the investigation and would impede the prospects of unearthing all the ramifications involved in a conspiracy. Public interest also would suffer as consequence. Reference was invited to State of A.P. v. Bimal Krishna Kundu 1997 (8) SCC 104 in this context. Likewise, attention of the court was invited to Muraleedharan v. State of Kerala 2001 (4) SCC 638 which held that "Custodial interrogation of such an accused is indispensably....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of Rights, 1689 which prescribed that "excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted". 39. Bail ipso facto has not been defined under the Code. It is now widely recognized as a 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. The justification for bail (to one accused of commission or committing a crime is that it preserves a person who is under cloud of having transgressed law but not convicted for it, from the rigors of a detention. 40. Section 438 of the Cr.PC provides for the issuance of directions for the grant of bail to a person apprehending arrest. The Cr.PC of 1973 replaced the old code of 1898. The old code did not provide for any corresponding provision to Section 438 of the code of 1973. Under the old code, there was a sharp difference of opinion amongst the various High Courts on the question as to whether courts had the inherent power to pass an order of bail in anticipation of arrest. The predominant position was that courts did not have such a power. Subsequently, the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....other words, unlike a post-arrest order of bail, it is a pre-arrest legal process which directs that if the person in whose favour it is issued is thereafter arrested on the accusation in respect of which the direction is issued, he shall be released on bail. Section 46(1) of the CrPC which deals with how arrests are to be made, provides that in making the arrest, the police officer or other person making the arrest "shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action". A direction Under Section 438 is intended to confer conditional immunity from this 'touch' or confinement. 43. In Sibbia (supra), this Court considered the specific question of whether the power to grant anticipatory bail under Section 438 is limited to contingencies such as the possibility that the police may use their investigative powers to humiliate the person sought to be arrested, or pervert the course of justice and abuse their powers of investigation. One of the arguments raised in Sibbia, as also in the present case, was that the power to grant anticipatory bail ought to be left to the discretion of the court concern....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ion 438(1)(i) and (ii) enjoin that an accused/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 a case of likely recovery of objects or discovery of facts under Section 27 (of the Evidence Act, 1872), the accused may be taken into custody. Given that there is no formal method prescribed by Section 46 of the Code if recovery is made during a statement (to the police) and pursuant to the accused volunteering the fact, it would be a case of recovery during "deemed arrest" (Para 19 of Sibbia). (iii) The accused is not obliged to make out a special case for grant of anticipatory bail; reading an otherwise wide power would fetter the court's discretion. Whenever an application (for relief under Section 438) is moved, discretion has to be always exercised judiciously, and with 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, Sibbia). (v) It is not justified to require courts to....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ng of reasonable belief of imminent arrest (of the applicant). (Para 37, Sibbia). (xiii) Anticipatory bail can be granted even after filing of an FIR- as long as theapplicant is not arrested. However, after arrest, an application for anticipatory bail is not maintainable. (Para 38-39, Sibbia). (xiv) A blanket order under Section 438, directing the police to not arrest theapplicant, "wherever arrested and for whatever offence" should not be issued. An order based on reasonable apprehension relating to specific facts (though not spelt out with exactness) can be made. A blanket order would seriously interfere with the duties of the police to enforce the law and prevent commission of offences in the future. (Para 40-41, Sibbia). (xv) The public prosecutor should be issued notice, upon considering an application under Section 438; an ad interim order can be made. The application "should be reexamined in the light of the respective contentions of the parties." The ad interim order too must conform to the requirements of the section and suitable conditions should be imposed on the applicant even at that stage. "Should the operation of an order passed under Section 438(1) be....
X X X X Extracts X X X X
X X X X Extracts X X X X
....lly held that an "over-generous infusion of constraints and conditions which are not to be found in Section 438 can make its provisions constitutionally vulnerable since the right to personal freedom cannot be made to depend on compliance with unreasonable restrictions." 48. In Gudikanti Narasimhulu v. Public Prosecutor 1978 (1) SCC 240 this court observed that ". ... Personal liberty, deprived when bail is refused, is too precious a value of our constitutional system recognised under Article 21 that the curial power to negate it is a great trust exercisable, not casually but judicially, with lively concern for the cost to the individual and the community. To glamorise impressionistic orders as discretionary may, on occasions, make a litigative gamble decisive of a fundamental right. After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of "procedure established by law". 49. The reason for enactment of Section 438 in the Code was Parliamentary acceptance of the crucial underpinning of personal liberty in a free and democratic country. Parliament wished to foster respect for personal liberty and accord primac....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... We are, however, of the opinion that the provision contained under S. 438 regarding anticipatory bail should remain in the Code but subject to the amendments suggested in cl. 43 of the Code of Criminal Procedure (Amendment) Bill, 1994 which lays down adequate safeguards." The relevant extract of Clause 43 of the proposed 1994 amendment read as follows: "In S. 438 of the principal Act for sub-s. (1), the following sub-sections shall be substituted, namely: (1) Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest, he shall be released on bail; and that Court may, after taking into 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 a Court in respect of any cognizable offence; (iii) the possibility of the applicant to flee from justice; and (iv) where the accusat....
X X X X Extracts X X X X
X X X X Extracts X X X X
....151 of the CrPC and the several city police enactments), clothe the police with extraordinary power which can easily be abused. Neither there is any inhouse mechanism in the police department to check such misuse or abuse nor does the complaint of such misuse or abuse to higher police officers bear fruit except in some exceptional cases. We must repeat that we are not dealing with the vast discretionary powers of the members of a service which is provided with firearms, which are becoming more and more sophisticated with each passing day (which is technically called a civil service for the purposes of Service Jurisprudence) and whose acts touch upon the liberty and freedom of the citizens of this country and not merely their entitlements and properties. 52. The persistence of the phenomena unwarranted arrests was sharply criticised by this court in Arnesh Kumar(supra), saying that the approach of the police continued to be colonial despite six decades of independence, that the power of arrest is "...is largely considered as a tool of harassment, oppression and surely not considered a friend of public. The need for caution in exercising the drastic power of arrest has be....
X X X X Extracts X X X X
X X X X Extracts X X X X
....fresh materials unearthed and included as prosecution evidence. Therefore, it would be salutary and in public interest to require courts to impose time limits for the life of orders of anticipatory bail the event of filing of FIR or charge sheet, are essential ingredients to an order under Section 438. (Salauddin, K.L. Verma, and Adri Dharan Das). Some decisions have also stressed that economic offences need a different approach and therefore, anticipatory bail should not be granted readily. In P. Chidambaram v. Directorate of Enforcement, (2019) 9 SCC 24 it was held as follows: "However, the court must also keep in view that a criminal offence is not just an offence against an individual, rather the larger societal interest is at stake. Therefore, a delicate balance is required to be established between the two rights-safeguarding the personal liberty of an individual and the societal interest..... 83. Grant of anticipatory bail at the stage of investigation may frustrate the investigating agency in interrogating the accused and in collecting the useful information and also the materials which might have been concealed. Success in such interrogation would elude i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s till now, not been brought into force, reads as follows: ["(1) Where any person has reason to believe that he may be arrested on accusation of having committed a non- bailable offence, he may apply to the High Court or the Court of Session for a direction under this section; that in the event of such arrest, he shall be released on bail and the Court may after taking into 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 hehas previously undergone imprisonment on conviction by a Court in respect of any cognizable 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 humiliating the applicant by having him so arrested, either reject the application forthwith or 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 Session has not passed any interim order under this sub-section or has rejected the application for grant of a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....neither a blanket restriction can be read into by this court, nor can inflexible guidelines in the exercise of discretion, be insisted upon- that would amount to judicial legislation. 57. Turning now to the various concerns that impelled this court in Salauddin, K.L. Verma, Sunita Devi; Nirmal Jeet Kaur and Adri Dharan Das, HDFC Bank, J.J. Manan (supra) and other decisions which outlined the various concerns and problems faced by the prosecuting agency, or the police, or that competent courts would be deprived of oversight, thus, leading to directions that courts should impose time restrictions, or grant temporary or limited bail (e.g. filing of charge sheet etc.), this court proposes to deal with such reasoning hereafter. 58. The various reasons which led to the imposition of restrictions or limitations by the decisions noted previously, hinge upon factors such as: addition of graver offences which the applicant is alleged to have committed after the grant of anticipatory bail; unearthing of facts disclosing his or her complicity in serious offences, as for instance, a conspirator or kingpin; the accused's non-cooperation in the course of investigation, (such as, for e....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hich cautioned that the power to grant anticipatory bail should be used sparingly and in exceptional cases and that all conditions under Section 437 should be read into in Section 438. Furthermore, the High Court had required that an applicant ought to make out a special case for grant of anticipatory bail; it was also stated that in cases wherever remand was sought, or a reasonable cause to secure incriminating material in terms of Section 27 of the Evidence Act could be made out, anticipatory bail ought not to be granted and that it could not be granted in regard to offences punishable with death or imprisonment for life unless the court is satisfied that the charge was false or groundless. The court in Sibbia (supra) frowned upon imposition of such rules after interpreting and in the course of the judgment held that the power to grant anticipatory bail is wide and that the discretion is not limited in the manner that the High Court suggested. At the same time, this court also emphasized that the discretion had to be exercised while granting or refusing to grant in given cases on due application of mind and in a judicious manner. 61. The imposition of conditions under Section ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then Section by section, Clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place. 63. Likewise, in Directorate of Enforcement v Deepak Mahaja....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ions may be imposed in the given circumstances of any case, which has those distinctive or special features. But they should not always be imposed invariably in all cases. In other words, if this Court were to weave conditions to impose and read into Section 438 that are not expressly provided, the danger would be that several applicants who might otherwise be entitled to relief, would be denied it altogether. For example, the classification of an offence or a category of offences as one wanting special treatment where the Courts should not grant relief, would mean that regardless of the role of the accused and the nature of materials shown (whether adequate or not), the courts would be rendered powerless and denuded of the otherwise amplitude of discretion provided by the statute. 66. As regards the concern expressed on behalf of the state and the Union- that unconditional orders (i.e. those unrelated to a particular time frame) would result in non-co-operation of the accused, with the investigating officer or authority, or that there would be reluctance to make statements to the prosecution, to assist in the recovery of articles that incriminate the accused (and therefore can ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Upadhyaya." Therefore, the "limited custody" or "deemed custody" to facilitate the requirements of the investigative authority, would be sufficient for the purpose of fulfilling the provisions of Section 27, in the event of recovery of an article, or discovery of a fact, which is relatable to a statement made during such event (i.e deemed custody). In such event, there is no question (or necessity) of asking the accused to separately surrender and seek regular bail. 67. Now, coming to the instruction in some decisions that anticipatory bail should not be given, or granted with stringent conditions, upon satisfaction that the accused is not involved, Sibbia, clearly disapproved the imposition of such restrictions, or ruling out of certain offences or adoption of a cautious or special approach. It was held that: "A close look at some of the rules in the eight-point code formulated by the High Court will show how difficult it is to apply them in practice. The seventh proposition says : "The larger interest of the public and State demand that in serious cases like economic offences involving blatant corruption at the higher rungs of the executive an....
X X X X Extracts X X X X
X X X X Extracts X X X X
....accused or suspected of the commission of a non-bailable offence "shall not be so released" if there appear to be reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life. If it was intended that the exception contained in Section 437 (1) should govern the grant of relief under Section 438 (1), nothing would have been easier for the legislature than to introduce into the latter section a similar provision. We have already pointed out the basic distinction between these two sections. Section 437 applies only after a person, who is alleged to have committed a non-bailable offence, is arrested or detained without warrant or appears or is brought before a court. Section 438 applies before the arrest is made and, in fact, one of the pre-conditions of its application is that the person, who applies for relief under it, must be able to show that he has reason to believe that "he may be arrested", which plainly means that he is not yet arrested. The nexus which this distinction bears with the grant or refusal of bail is that in cases falling under Section 437, there is some concrete data on the basis of which it is possible to sh....
X X X X Extracts X X X X
X X X X Extracts X X X X
....bly be imposed at the time of grant of anticipatory bail are therefore, overruled. Similarly, the observations in Mhetre that "the courts should not impose restrictions on the ambit and scope of section 438 Cr.P.C. which are not envisaged by the Legislature. The court cannot rewrite the provision of the statute in the garb of interpreting it" is too wide and cannot be considered good law. It is one thing to say that as a matter of law, ordinarily special conditions (not mentioned in Section 438 (2) read with Section 437 (3) should not be imposed; it is an entirely different thing to say that in particular instances, having regard to the nature of the crime, the role of the accused, or some peculiar feature, special conditions should not be imposed. The judgment in Sibbia itself is an authority that such conditions can be imposed, but not in a routine or ordinary manner and that such conditions then become an inflexible "formula" which the courts would have to follow. Therefore, courts and can, use their discretion, having regard to the offence, the peculiar facts, the role of the offender, circumstances relating to him, his likelihood of subverting justice (or a fair investigation)....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sed is given relief under Section 438 at one stage, per se does not mean that upon the filing of a charge-sheet, he is necessarily to surrender or/and apply for regular bail. The analogy to 'deemed bail' under Section 167(2) with anticipatory bail leads this court to conclude that the mere subsequent event of the filing of a charge-sheet cannot compel the accused to surrender and seek regular bail. As a matter of fact, interestingly, if indeed, if a charge-sheet is filed where the accused is on anticipatory bail, the normal implication would be that there was no occasion for the investigating agency or the police to require his custody, because there would have been nothing in his behavior requiring such a step. In other words, an accused, who is granted anticipatory bail would continue to be at liberty when the charge sheet is filed, the natural implication is that there is no occasion for a direction by the Court that he be arrested and further that he had cooperated with the investigation. At the same time, however, at any time during the investigation were any occasion to arise calling for intervention of the court for infraction of any of the conditions imposed under Sec....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ne course of the action, which can be adopted while exercising power under 437 (5) and 439 (2), but there may be cases where without cancelling the bail granted to an accused, on relevant consideration, Court can direct the accused to be arrested and committed to custody. The addition of serious offences is one of such circumstances, under which the Court can direct the accused to be arrested and committed to custody despite the bail having been granted with regard to the offences with which he was charged at the time when bail was considered and granted. ******** ******** ******** 25. We may have again to look into provisions of Sections 437 (5) and 439 (2) of Cr.P.C. Sub-section (5) of Sections 437 of Cr.P.C uses expression 'if it considers it necessary so to do, direct that such person be arrested and commit him to custody'. Similarly, sub-section (2) of Section 439 of Cr.P.C. provides: 'may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody'. A plain reading of the aforesaid provisions indicates that provision does not mandatorily provide that the Court before directing arrest of such accused who has already....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t after cancelling the earlier bail. 28. Coming back to the present case, the appellant was already into jailcustody with regard to another case and the investigating agency applied before Special Judge, NIA Court to grant production warrant to produce the accused before the Court. The Special Judge having accepted the prayer of grant of production warrant, the accused was produced before the Court on 26.06.2018 and remanded to custody. Thus, in the present case, production of the accused was with the permission of the Court. Thus, the present is not a case where investigating agency itself has taken into custody the appellant after addition of new offences rather accused was produced in the Court in pursuance of production warrant obtained from the Court by the investigating agency. We, thus do not find any error in the procedure which was adopted by the Special Judge, NIA Court with regard to production of appellant before the Court. In the facts of the present case, it was not necessary for the Special Judge to pass an order cancelling the bail dated 10.03.2016 granted to the appellant before permitting the accused appellant to be produced before it or remanding him to ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 25.7. In pursuance of the order of the Court of Session or the High Court, once the accused is released on anticipatory bail by the trial court, then it would be unreasonable to compel the accused to surrender before the trial court and again apply for regular bail. 25.8. Discretion vested in the court in all matters should be exercised with care and circumspection depending upon the facts and circumstances justifying its exercise. Similarly, the discretion vested with the court under Section 438 CrPC should also be exercised with caution and prudence. It is unnecessary to travel beyond it and subject the wide power and discretion conferred by the legislature to a rigorous code of self-imposed limitations. 25.9. No inflexible guidelines or straitjacket formula can be provided for grant or refusal of the anticipatory bail because all circumstances and situations of future cannot be clearly visualised for the grant or refusal of anticipatory bail. In consonance with legislative intention, the grant or refusal of anticipatory bail should necessarily depend on the facts and circumstances of each case." 75. The three-judge decision in Sudhir v. Maharastra 2016 (1)....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ad with Section 438 (2) should be imposed; if there are peculiar features in regard to any crime or offence (such as seriousness or gravity etc.), it is open to the court to impose any appropriate condition (including fixed nature of relief, or its being tied to an event or time bound) etc. (2) The second question referred to this court is answered, by holding that thelife of an anticipatory bail does not end generally at the time and stage when the accused is summoned by the court, or after framing charges, but can also continue till the end of the trial. However, if there are any special or peculiar features necessitating the court to limit the tenure of anticipatory bail, it is open for it to do so. 78. Having regard to the above discussion, it is clarified that the court should keep the following points as guiding principles, in dealing with applications under Section 438, Cr. PC: (a) As held in Sibbia, when a person apprehends arrest and approaches a court for anticipatory bail, his apprehension (of arrest), has to be based on concrete facts (and not vague or general allegations) relatable a specific offence or particular of offences. App....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sing it. Whether to grant or not is a matter of discretion; equally whether, and if so, what kind of special conditions are to be imposed (or not imposed) are dependent on facts of the case, and subject to the discretion of the court. (e) Anticipatory bail granted can, depending on the conduct and behavior of the accused, continue after filing of the charge sheet till end of trial. Also orders of anticipatory bail should not be "blanket" in the sense that it should not enable the accused to commit further offences and claim relief. It should be confined to the offence or incident, for which apprehension of arrest is sought, in relation to a specific incident. It cannot operate in respect of a future incident that involves commission of an offence. (f)Orders of anticipatory bail do not in any manner limit or restrict the rights or duties of the police or investigating agency, to investigate into the charges against the person who seeks and is granted pre-arrest bail. (g) The observations in Sibbia regarding "limited custody" or "deemed custody" to facilitate the requirements of the investigative authority, would be sufficient for the purpose of fulfi....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Court judge, remarked that "personal security and private property rest entirely upon the wisdom, the stability, and the integrity of the courts of justice." 80. The history of our republic - and indeed, the freedom movement has shown how the likelihood of arbitrary arrest and indefinite detention and the lack of safeguards played an important role in rallying the people to demand independence. Witness the Rowlatt Act, the nationwide protests against it, the Jallianwalla Bagh massacre and several other incidents, where the general public were exercising their right to protest but were brutally suppressed and eventually jailed for long. The specter of arbitrary and heavy-handed arrests: too often, to harass and humiliate citizens, and oftentimes, at the interest of powerful individuals (and not to further any meaningful investigation into offences) led to the enactment of Section 438. Despite several Law commission reports and recommendations of several committees and commissions, arbitrary and groundless arrests continue as a pervasive phenomenon. Parliament has not thought it appropriate to curtail the power or discretion of the courts, in granting pre-arrest or anticipatory b....
X X X X Extracts X X X X
X X X X Extracts X X X X
....any appropriate condition (including fixed nature of relief, or its being tied to an event) etc. (2) As regards the second question referred to this court, it isheld that the life or duration of an anticipatory bail order does not end normally at the time and stage when the accused is summoned by the court, or when charges are framed, but can continue till the end of the trial. Again, if there are any special or peculiar features necessitating the court to limit the tenure of anticipatory bail, it is open for it to do so. 1. This court, in the light of the above discussion in the two judgments, and in the light of the answers to the reference, hereby clarifies that the following need to be kept in mind by courts, dealing with applications under Section 438, Cr. PC: (1) Consistent with the judgment in Shri Gurbaksh Singh Sibbia and others v. State of Punjab 1980 (2) SCC 565, when a person complains of apprehension of arrest and approaches for order, the application should be based on concrete facts (and not vague or general allegations) relatable to one or other specific offence. The application seeking anticipatory bail should contain bare ess....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f special conditions are to be imposed (or not imposed) are dependent on facts of the case, and subject to the discretion of the court. (5)Anticipatory bail granted can, depending on the conduct and behavior of the accused, continue after filing of the charge sheet till end of trial. (6)An order of anticipatory bail should not be "blanket" in the sense that it should not enable the accused to commit further offences and claim relief of indefinite protection from arrest. It should be confined to the offence or incident, for which apprehension of arrest is sought, in relation to a specific incident. It cannot operate in respect of a future incident that involves commission of an offence. (7)An order of anticipatory bail does not in any manner limit or restrict the rights or duties of the police or investigating agency, to investigate into the charges against the person who seeks and is granted pre­arrest bail. (8)The observations in Sibbia regarding "limited custody" or "deemed custody" to facilitate the requirements of the investigative authority, would be sufficient for the purpose of fulfilling the provisions of Section 27, in the event of r....