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2020 (3) TMI 1449
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....pplication U/S. 438 Cr. P.C. Nos. 69, 90, 91, 99, 111, 129, 133, 142, 144, 160, 183, 201, 209, 216, 243, 262, 266, 316, 337, 348, 374, 393, 394, 410, 433, 452, 460, 472, 476, 477, 479, 494, 509, 515, 522, 528, 531, 558, 569, 576, 579, 592, 614, 713, 729, 814, 1047, 1108, 1135, 1152, 1155, 1158, 1160, 1209, 1224, 1294, 1328, 1335, 1336, 1339, 1344, 1346, 1347, 1349, 1446, 1458, 1519, 1521, 1538, 1546, 1547, 1551, 1553, 1554, 1555, 1557, 1562, 1570, 1580, 1591, 1594, 1595, 1596, 1608, 1612, 1646, 1651, 1655, 1658, 1664, 1672, 1711, 1722, 1733, 1739, 1749 and 1841 of 2020 Hon'ble Judges Govind Mathur, C.J., Ramesh Sinha, Sunita Agarwal, Yashwant Varma and Rahul Chaturvedi, JJ. For the Appellant : Bharat Singh, Rajeev Kumar Mishra, Shailesh Singh Yadav, Ishwar Chandra Tyagi, Shamshad Ahmad, Kirtikar Pande, Dhirendra Pratap Singh, Prem Prakash, Rohit Shukla, Chandra Prakash Pandey, Rajesh Yadav, Tufail Hasan, Amit Daga, Yamuna Pandey, Harsh Kumar, Sandeep Kumar Gupta, Sandeep Kumar, Mahendra Kumar Singh Chauhan, Rajendra Kumar Yadav, Ashok Kumar, Pradeep Kumar, Anand Kumar Pandey, Sanjeev Kumar Singh, Raza Hasnain, Satyaveer Singh, A.K. Mishra, Ravi Prakash Srivastava, Ajitam Sriv....
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....ealing, which would amount nothing but to approach this Court directly; (ii) Whether amongst the grounds which have been enumerated in the judgment in the case of Vinod Kumar (supra), the ground at Serial (A) requires any reconsideration so as to preclude the co-accused approaching this Court directly in case the other co-accused's regular bail/anticipatory bail is rejected by the Court of Sessions and whether he be also subjected to filing such an affidavit, showing therein the circumstances in which he had to feel compelled to approach this Court directly; (iii) Whether amongst the grounds which have been enumerated in the judgment in the case of Vinod Kumar (supra), the ground at Serial (B) requires any reconsideration as to whether an accused, who is not residing within the jurisdiction of the Sessions Court concerned, faces a threat of arrest, should be allowed to approach the High Court directly, to move an anticipatory bail application by the logic given above in Para 6 of this judgment; and (iv) Whether such anticipatory bail applications which do not contain any compelling reason to approach this Court directly, should be entertained. 3. While passing the referr....
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....on 438 Cr.P.C. be circumscribed or be recognised to be moved only in exceptional situations it would again amount to fettering and constricting the discretion otherwise conferred by Section 438 Cr.P.C. Such a construction would be in clear conflict of the statutory mandate. The ratio of Harendra Singh must be recognised to be the requirement of establishing the existence of special, weighty and compelling reasons and circumstances justifying the invocation of the jurisdiction of this Court even though a wholesome avenue of redress was available before the Court of Sessions. D. What would constitute "special circumstances" in light of the nature of the power conferred must be left to be gathered by the Judge on a due evaluation of the facts and circumstances of a particular case. It would be imprudent to exhaustively chronicle what would be special circumstances. It is impossible to either identify or compendiously postulate what would constitute special circumstances. Sibbia spoke of the "imperfect awareness of the needs of new situations". It is this constraint which necessitates the Court leaving it to the wisdom of the Judge and the discretion vested in him by statute. E. Wh....
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....d is with regard to the requirement of proving the existence of extraordinary or exceptional circumstances. The words "exceptional" or "extraordinary" are understood to mean atypical, rare, out of the ordinary, unusual or uncommon. If the jurisdiction of the Court as conferred by Section 438 Cr.P.C. be circumscribed or be recognised to be moved only in exceptional situations it would again amount to fettering and constricting the discretion otherwise conferred by Section 438 Cr.P.C. Such a construction would perhaps run the risk of being again viewed as being in conflict of the statutory mandate and the discretion conferred. In the considered view of the Court what the learned Judge did seek to convey and hold in Harendra Singh was the requirement of establishing the existence of special, weighty, compelling reasons and circumstances justifying the invocation of the jurisdiction of this Court even though a wholesome avenue of redress was available before the Court of Sessions. Regard must be had to the fact that the Constitution Bench in Sibbia had an occasion to deal with the correctness of the restrictions as formulated by the Full Bench of the Punjab and Haryana High Court on ....
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....onsidered to be relevant under Section 439 of the Code. 14. Generalisations on matters which rest on discretion and the attempt to discover formulae of universal application when facts are bound to differ from case to case frustrate the very purpose of conferring discretion. No two cases are alike on facts and therefore, courts have to be allowed a little free play in the joints if the conferment of discretionary power is to be meaningful. There is no risk involved in entrusting a wide discretion to the Court of Session and the High Court in granting anticipatory bail because, firstly, these are higher courts manned by experienced persons, secondly, their orders are not final but are open to appellate or revisional scrutiny and above all because, discretion has always to be exercised by courts judicially and not according to whim, caprice or fancy. On the other hand, there is a risk in foreclosing categories of cases in which anticipatory bail may be allowed because life throws up unforeseen possibilities and offers new challenges. Judicial discretion has to be free enough to be able to take these possibilities in its stride and to meet these challenges. While dealing with the ne....
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....er of discretion. But apart from the fact that the question is inherently of a kind which calls for the use of discretion from case to case, the legislature has, in terms express, relegated the decision of that question to the discretion of the court, by providing that it may grant bail "if it thinks fit". The concern of the courts generally is to preserve their discretion without meaning to abuse it. It will be strange if we exhibit concern to stultify the discretion conferred upon the courts by law. ........... 26. We find a great deal of substance in Mr. Tarkunde's submission that since denial of bail amounts to deprivation of personal liberty, the Court should lean against the imposition of unnecessary restrictions on the scope of Section 438, especially when no such restrictions have been imposed by the legislature in the terms of that section. Section 438 is a procedural provision which is concerned with the personal liberty of the individual, who is entitled to the benefit of the presumption of innocence since he is not, on the date of his application for anticipatory bail, convicted of the offence in respect of which he seeks bail. An overgenerous infusion of constr....
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....tances must necessarily be found to exist in justification of the High Court being approached first and without the avenue as available before the Court of Sessions being exhausted. Whether those factors are established or found to exist in the facts of a particular case must necessarily be left for the Court to consider in each case. What would constitute "special circumstances" in light of the nature of the power conferred, must also be left to be gathered by the Judge on a due evaluation of the facts and circumstances of a particular case. It would perhaps be imprudent to exhaustively chronicle what would be special circumstances. As noticed above, it would be impossible to either identify or compendiously propound what would constitute special circumstances. Sibbia spoke of the "imperfect awareness of the needs of new situations". It is this constraint which necessitates the Court leaving it to the wisdom of the Judge and the discretion vested in him by statute. Without committing the folly of attempting to exhaustively enunciate what would constitute special circumstances or being understood to have done so, the High Court would be justified in entertaining a petition direct....
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....propriate to read into that provision fetters which the Legislature had chosen not to place. It also denounced attempts to subject the discretion statutorily conferred to controls by way of judicial interpretation. In fact Sibbia held that the Legislature had wisely left it to the discretion of the Court. The note of prudence was entered bearing in the mind the impossibility of predicting the infinite and imponderable situations in which petitions for anticipatory bail may come to be presented. 8. More recently, a Constitution Bench in Sushila Aggarwal Vs. State [NCT of Delhi] and others 2020 SCC Online SC 98 was called upon to consider whether protection accorded under Section 438 should be limited for a fixed period and whether the life of such an order should end at the time when the accused is summoned by the Court. While dealing with those questions, the Constitution Bench reiterated the conclusions entered in Sibbia, which clearly has come to be regarded as the locus classic us on the subject. Delivering his concurring opinion in Sushila Aggrawal, Ravindra Bhat J. observed thus:- 84. The accused is not obliged to make out a special case for grant of anticipatory bail;....
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.... 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.P.C.: (1) Consistent with the judgment in Shri Gurbaksh Singh Sibbia v. State of Punjab, 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 essential facts relating to the offence, and why the applicant reasonably apprehends arrest, as well as his side of the story. These are essential for the court which should consider his application, to evaluate the threat or apprehension, its gravity or seriousness and the appropriateness of any condition that may have to be imposed. It is not essential that an application should be moved only after an FIR is filed; it can be moved earlier, so long as the facts are clear and there is reasonable basis for apprehending arrest." 11. We have noted these conclusions recorded by the Constitution Bench in Sushila Aggarw....
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....dge while making the present Reference and requesting the Chief Justice to constitute a Bench larger than that which had decided Onkar Nath Agrawal does not rest this recommendation on any decision or precedent to the contrary. In fact as was noted in Vinod Kumar the view so expressed by the Full Bench in Onkar Nath Agrawal has not only held the field for decades but has also been followed by the Full Bench of the Himachal Pradesh in Mohan Lal and others etc. Vs. Prem Chand and others etc. AIR 1980 HP 36, by the High Court of Uttarakhand in Mubarik & another v. State of Uttarakhand & others (Criminal Writ Petition No. 2059 of 2018, decided on 02 November 2018), as well as the Full Bench of the Calcutta High Court in Diptendu Nayek Vs. State of West Bengal 1998 2 Cal L.J. 447. Viewed in that light we are of the considered view that there was neither a conflict between precedents that required resolution nor was there any question which merited an authoritative exposition by a Bench larger than which had decided Onkar Nath Agarwal. It would be worthwhile to recollect the following pertinent observations made by a Full Bench of the Court in Suresh Jaiswal Vs. State of U.P. 2020 (1) AD....
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....e circumstances which have been noted by the learned Judge in Vinod Kumar by way of an exemplar of what may constitute special circumstances is not to be read or understood as empty incantations but must necessarily be supported and established from the material on record. The petition must rest on a strong foundation in support of the imminent threat of arrest as alleged. This aspect has also been duly emphasised by the Constitution Bench in Sushila Agarwal as is evident from the parts extracted above with it being observed that the application must be based "…on concrete facts (and not vague or general allegations)…" 18. Viewed in that backdrop it is manifest that it was open for the learned Judge to assess the facts of each case to form an opinion whether special circumstances existed or not entitling the applicant there to approach the High Court directly. Considered from the aforesaid perspective, it is manifest that Question (i) as framed by the learned Judge is really unwarranted. If the learned Judge was of the opinion that the averments made in support of the existence of special circumstances were "not appealing" [as he chooses to describe it] or unconvincing, ....