Case Summary
| Citation | Shri Gurbaksh Singh Sibbia v. State of Punjab (1980) 2 SCC 565 : AIR 1980 SC 1632 |
| Keywords | sec 438 CrPC, anticipatory bail |
| Facts | The Appellant was a Minister of Irrigation and Power and has been accused of Corruption and undue use of power. The Appellant along with a few others apprehends arrest. The appellant Gurbaksh Singh Sibbia applied for anticipatory bail in anticipation of his arrest in the Court of Punjab and Haryana High Court, the said court dismissed the application and therefore,a Special leave petition was filed in the Apex court. Grave allegations of political corruption were made against Gurbaksh Singh Sibbia and others.In response, they filed applications in the High Court under Section 438, praying that they be released on bail if they were arrested on these charges. Given the importance of the matter, a single judge referred the applications to a Full Bench of the High Court.The Full Bench dismissed the applications and laid down eight propositions placing stringent limitations and conditions on the grant of anticipatory bail under Section 438. Some of the key propositions laid down by the High Court were: *The power under Section 438 is extraordinary and must be exercised sparingly in exceptional cases only. *Blanket orders of anticipatory bail should not be passed. *The limitations contained in Section 437 regarding bail must be read into Section 438. *The applicant must make out a “special case” beyond the requirements of Section 437. *Anticipatory bail should not be granted if it may cause interference with the investigative rights of the police. *For offences punishable with death/life imprisonment, anticipatory bail cannot be granted unless it appears false or groundless. |
| Issues | Whether the discretion provided to the High Court or Session Court under section 438 of the CrPC to impose conditions while granting the anticipatory bail should be cut down by reading into statute which are not to be sound therein? Whether the conditions provided under section 437 are implicit therein must be read with Section 438 of the CrPC? Whether the discretion under Section 438 is an extraordinary character and must be exercised sparingly in exceptional cases only? |
| Contentions | |
| Law Points | According to the Court, the legislature conferred wide powers of granting anticipatory bail on the Courts of Sessions and the High Courts for two reasons. Firstly, it would be very difficult to determine fixed conditions to be pursued by the courts to grant anticipatory bail. Secondly, to grant ample discretion to the courts to exercise such power. The Supreme Court held that the Punjab and Haryana High Court erred in putting strict limitations and conditions on granting anticipatory bail under Section 438 that are not present in the statutory language itself.Section 438 uses wide language and confers a wide discretion on High Courts and Courts of Session to grant anticipatory bail. This discretion should not be curtailed by reading stringent conditions into the provision. The Court rejected the High Court’s propositions like, the power under Section 438 must be exercised only in exceptional cases, the limitations from Section 437 should be read into 438, the applicant must make out a “special case”, etc. It held that no inflexible rules can be laid down to limit judicial discretion under Section 438. The courts must exercise this discretion judiciously based on facts and circumstances of each case.Anticipatory bail is a vital instrument to secure personal freedom and the statutory provision conferring this must receive liberal interpretation in favor of personal freedom. However, the Court agreed with the High Court’s proposition that blanket orders of anticipatory bail should not generally be passed, as the belief of being arrested must be founded on reasonable grounds in relation to a specific accusation. The Court provided guidance on aspects like whether FIR is required before seeking anticipatory bail, bail after arrest, time limits for orders, notice to public prosecutor etc. |
| Judgement | Supreme Court overruled the stringent propositions laid down by the High Court’s Full Bench judgment and provided a more liberal framework for courts to exercise discretion in granting anticipatory bail under Section 438 of CrPC. The Supreme Court issued certain guidelines regarding the scope of powers under Section 438 of the CrPC:- *Section 438 of the CrPC cannot be invoked on vague and unclear accusations. The provision can only be invoked when the applicant has the ‘reasons to believe’ that he may be arrested. Mere fear cannot be equated with the belief of the applicant. *The object of Section 438 is to grant discretionary powers to the High Court or the Court of Session, as the case may be. Thus, such a court cannot leave the question to be decided by a Magistrate as stipulated under Section 437 of the CrPC. Such an action would defeat the very purpose of the provision. *The filing of an FIR before the application for anticipatory bail is not a condition precedent. It may be applied for even if the applicant has concrete reasons to anticipate an arrest. *Even if an FIR has been filed against such a person, he can still be granted an anticipatory bail, provided that he has not been arrested. *If the person has been arrested, he is not entitled to be granted anticipatory bail. In such a case, the person has to apply for bail either under Section 437 or Section 439 of the CrPC, as the case may be. *Apart from these guidelines, the Supreme Court accepted one view of the High Court, i.e., a blanket anticipatory bail cannot be granted in cases wherein the person has no proper reason to believe or anticipate an arrest. A blanket anticipatory bail means an order that serves as blanket protection against arrest for any offence whatsoever. |
| Ratio Decidendi & Case Authority |
Full Case Details
Y.V. CHANDRACHUD, C.J. – These appeals by special leave involve a question of great
public importance bearing, at once, on personal liberty and the investigational powers of the
police. The society has a vital stake in both of these interests, though their relative importance
at any given time depends upon the complexion and restraints of political conditions. Our task
in these appeals is how best to balance these interest while determining the scope of Section
438 of the Code of Criminal Procedure, 1973 (Act 2 of 1974).
3. Criminal Appeal 335 of 1977 which is the first of the many appeals before us, arises out
of a judgement dated September 13, 1977 of a Full Bench of the High Court of Punjab and
Haryana [Gurbaksh Singh Sibbia v. State of Punjab, (AIR 1978 P & H 1]. The appellant
therein, Shri Gurbaksh Singh Sibbia, was a Minister of Irrigation and Power in the Congress
Ministry of the Government of Punjab. Grave allegations of political corruption were made
against him and others whereupon, applications were filed in the High Court of Punjab and
Haryana under Section 438, praying that the appellants be directed to be released on bail, in the
event of their arrest on the aforesaid charges. Considering the importance of the matter, a
learned Single Judge referred the application to a Full Bench, which by its judgment dated
September 13, 1977 dismissed them.
4. The Code of Criminal Procedure, 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 the question as to whether courts had the inherent
power to pass an order of bail in anticipation of arrest, the preponderance of view being that it
did not have such power. The Law Commission of India, in its 41st Report dated September
24, 1969 pointed out the necessity of introducing a provision in the Code enabling the High
Court and the Court of Session to grant “anticipatory bail”. It observed in paragraph 39.9 of its
report (Volume I):
The suggestion for directing the release of a person on bail prior to his arrest (commonly
known as “anticipatory bail”) was carefully considered by us. Though there is a conflict of
judicial opinion about the power of court to grant anticipatory bail, the majority view is that
there is no such power under the existing provisions of the Code. The necessity for granting
anticipatory bail arises mainly because sometimes influential persons try to implicate their
rivals in false cases for the purpose of disgracing them or for other purposes by getting them
detained in jail for some days. In recent times, with the accentuation of political rivalry, this
tendency is showing signs of steady increase. Apart from false cases, where there are reasonable
grounds for holding that a person accused of an offence is not likely to abscond, or otherwise
misuse his liberty while on bail, there seems no justification to require him first to submit to
custody, remain in prison for some days and then apply for bail.
We 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
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to the discretion of the court and prefer not to fetter such discretion in the statutory provision
itself. Superior courts will, undoubtedly, exercise their discretion properly, and not make any
observations in the order granting anticipatory bail, which will have a tendency to prejudice the
fair trial of the accused.
5. The suggestion made by the Law Commission was, in principle, accepted by the Central
Government which introduced Clauses 447 in the Draft Bill of the Code of Criminal Procedure,
1970 with a view to conferring as express power on the High Court and the Court of Session to
grant anticipatory bail.
6. The Law Commission, in paragraph 31 of its 48th Report (1972), made the following
comments on the aforesaid clause:
The Bill introduces a provision for the grant of anticipatory bail. This is substantially in
accordance with the recommendation made by the previous Commission. We agree that
this would be a useful addition, though we must add that it is in very exceptional cases that
such power should be exercised.
We are further of the view that in order to ensure that the provision is not put to abuse at
the instance of unscrupulous petitioners, the final order should be made only after notice
to the Public Prosecutor. The initial order should only be an interim one. Further, the
relevant section should make it clear that the direction can be issued only for reasons to be
recorded, and if the court is satisfied that such a direction is necessary in the interests of
justice.
It will also be convenient to provide that notice of the interim order as well as of the final
orders will be given to the Superintendent of Police forthwith.
Clause 447 of the Draft Bill of 1970 was enacted with certain modifications and became
Section 438 of the Code of Criminal Procedure, 1973.
7. The facility which Section 438 affords is generally referred to as ‘anticipatory bail’, an
expression which was used by the Law Commission in the 41st Report. Neither the section nor
its marginal note so describes it but the expression ‘anticipatory bail’ is a convenient mode of
conveying that it is possible to apply for bail in anticipation of arrest. Any order of bail can, of
course, be effective only from the time of arrest because, to grant bail, as stated in Wharton’s
Law Lexicon, is to ‘set at liberty a person arrested or imprisoned, on security being taken for
his appearance’. Thus, bail is basically release from restraint, more particularly, release from
the custody of the police. The act of the arrest directly affects freedom of movement of the
person arrested by the police, and speaking generally, an order of bail gives back to the accused
that freedom on condition that he will appear to take his trial. Personal recognisance, suretyship
bonds and such other modalities are the means by which an assurance is secured from the
accused that though he has been released on bail, he will present himself at the trial of offence
or offences of which he is charged and for which he was arrested. The distinction between an
ordinary order of bail and an order of anticipatory bail is that whereas the former is granted
after arrest and therefore means release from the custody of the police, the latter is granted in
anticipation of arrest and is therefore effective at the very moment of arrest. Police custody is
an inevitable concomitant of arrest for non-bailable offences. An order of anticipatory bail
constitutes, so to say, an insurance against police custody following upon arrest for offence or
offences in respect of which the order is issued. In other words, unlike a post-arrest order of
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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 Code of Criminal Procedure which deals with how arrests
are to be made, provides that in making the arrest, the police officer or other person making the
arrest “shall actually touch or confine the body of the person to be arrested, unless there be a
submission to custody by word or action”. A direction under Section 438 is intended to confer
conditional immunity from this ‘touch’ or confinement.
8. No one can accuse the police of possessing a healing touch nor indeed does anyone have
misgivings in regard to constraints consequent upon confinement in police custody. The
powerful processes of criminal law can be perverted for achieving extraneous ends. Attendant
upon such investigations, when the police are not free agents within their sphere of duty, is a
great amount of inconvenience, harassment and humiliation. That can even take the form of the
parading of a respectable person in handcuffs, apparently on way to a court of justice. The foul
deed is done when an adversary is exposed to social ridicule and obloquy, no matter when and
whether a conviction is secured or is at all possible. It is in order to meet such situations, though
not limited to these contingencies, that the power to grant anticipatory bail was introduced into
the Code of 1973.
9. Are we right in saying that the power conferred by Section 438 to grant anticipatory bail
is “not limited to these contingencies”? It is argued by the learned Additional Solicitor-General
on behalf of the State Government that the grant of anticipatory bail should at least be
conditional upon the applicant showing that he is likely to be arrested for an ulterior motive,
that is to say, that the proposed charge or charges are evidently baseless and are actuated by
mala fides.
10. Shri V. M. Tarkunde, appearing on behalf of some of the appellants, urged that Section
438 is a procedural provision which is concerned with the personal liberty of an individual who
has not been convicted of the offence in respect of which he seeks bail and who must therefore
be presumed to be innocent. The validity of that section must accordingly be examined by the
test of fairness and reasonableness, which is implicit in Article 21. If the legislature itself were
to impose an unreasonable restriction on the grant of anticipatory bail, such a restriction could
have been struck down as being violative of Article 21. Therefore, while determining the scope
of Section 438, the court should not impose any unfair or unreasonable limitation on the
individual’s right to obtain an order of anticipatory bail. Imposition of an unfair or unreasonable
limitation, according to the learned counsel, would be violative of Article 21, irrespective of
whether it is imposed by legislation or by judicial decision.
11. The Full Bench of the Punjab and Haryana High Court rejected the appellants’
applications for bail after summarising, what according to it is 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 exceptional cases only;
(2) Neither Section 438 nor any other provision of the Code authorises the grant of blanket
anticipatory bail for offences not yet committed or with regard to accusations not so far
levelled.
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(3) The said power is not unguided or uncanalised but all the limitations imposed in the
preceding Section 437, are implicit therein and must be read into Section 438.
(4) In addition to the limitations mentioned in Section 437, the petitioner must make out a
special case for the exercise of the power to grant anticipatory bail.
(5) Where a legitimate case for the remand of the offender to the police custody under
Section 167(2) can be made out by the investigating agency or a reasonable claim to
secure incriminating material from information likely to be received from the offender
under Section 27 of the Evidence Act can be made out, the power under Section 438
should not be exercised.
(6) The discretion under Section 438 cannot be exercised with regard to offences punishable
with death or imprisonment for life unless the court at that very stage is satisfied that
such a charge appears to be false or groundless.
(7) The larger interest of the public and State demand that in serious cases like economic
offences involving blatant corruption at the higher rungs of the executive and political
power, the discretion under Section 438 of the Code should not be exercised; and
(8) Mere general allegations of mala fides in the petition are inadequate. The court must be
satisfied on materials before it that the allegations of mala fides are substantial and the
accusation appears to be false and groundless.
It was urged before the Full Bench that the appellants were men of substance and position
who were hardly likely to abscond and would be prepared willingly to face trial. This argument
was rejected with the observation that to accord differential treatment to the appellants on
account of their status will amount to negation of the concept of equality before the law and
that it could hardly be contended that every man of status, who was intended to be charged with
serious crimes, including the one under Section 409, IPC which was punishable with life
imprisonment, “was entitled to knock at the door of the court for anticipatory bail”. The
possession of high status, according to the Full Bench, is not only an irrelevant consideration
for granting anticipatory bail but is, if anything, an aggravating circumstances.
12. We find ourselves unable to accept, in their totality, the submissions of the learned
Additional Solicitor General or the constraints which the Full Bench of the High Court has
engrafted on the power conferred by Section 438. Clause (1) of Section 438 is couched in terms,
broad and unqualified. By any known canon of construction, words of which and amplitude
ought not generally to be cut down so as to read into the language of the statute restraints and
conditions which the legislature itself did not think it proper or necessary to impose. This is
especially true when the statutory provision which falls for consideration is designed to secure
a valuable right like to personal freedom and involves the application of a presumption as
salutary and deep grained in our criminal jurisprudence as the presumption of innocence.
Though the right to apply for anticipatory bail was conferred for the first time by 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 non-bailable cases and Section
439 which deals with the “special powers” of the High Court and the Court of Session regarding
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bail. The whole of Section 437 is riddled and hedged in by restriction on the power of certain
courts to grant bail.
Section 439(1)(a) incorporates the conditions mentioned in Section 437(3) if the offence in
respect of which the bail is sought is of the nature specified in that sub-section. Section 439
reads thus:
439. Special powers of High Court or Court of Session regarding bail. –
(1) A High Court or Court of Session may direct –
(a) that any person accused of an offence and in custody be released on bail, and if the
offence is of the nature specified in sub-section (3) of Section 437, may impose any
condition which it considers necessary for the purposes mentioned in that sub-section;
(b) that any condition imposed by a Magistrate when releasing any person on bail be set
aside or modified;
Provided that the High Court or the Court of Session shall, before granting bail to a person
who is accused of an offence which is triable exclusively by the Court of Session or
which, thought not so triable, is punishable with imprisonment for life, give notice of
the application for bail to the Public Prosecutor unless it is, for reasons to be recorded
in writing, of opinion that it is not practicable to give such notice.
(2) A High Court or Court of Session may direct that any person who has been released on
bail under this Chapter be arrested and commit him to custody.
The provisions of 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
the departure its full effect by assuming that it was not intended to serve any particular or
specific purpose. The departure, in our opinion, was made advisedly and purposefully.
Advisedly, at least in part, because of the 41st Report of the Law Commission which, while
pointing out the necessity of introducing a provision in the Code enabling the High Court and
the Court of Session to grant anticipatory bail, said in paragraph 39.9 that it had “considered
carefully the question of laying down in the statute certain condition under which alone
anticipatory bail could be granted” but had come to the conclusion that the question of granting
such bail should be left “to the discretion of the court” and ought not to be fettered by the
statutory provision itself, since the discretion was being conferred by upon superior courts
which were expected to exercise it judicially. The legislature conferred a wide discretion on the
High Court and the Court of Session to grant anticipatory bail because it evidently felt, firstly,
that it would be difficult to enumerate the conditions under which anticipatory bail should or
should not be granted and secondly, because the intention was to allow the higher courts in the
echelon a somewhat free hand in the grant of relief in the nature of anticipatory bail. That is
why, departing from the terms of 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 cleared 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-
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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 when there is a mere apprehension of arrest on the accusation that the applicant has
committed a non-bailable offence. A person who has yet to lose his freedom by being arrested
asks for freedom in the event of arrest. That is the stage at which it is imperative to protect his
freedom, insofar as one may, and to give full play to the presumption that he is innocent. In
fact, the stage, at which anticipatory bail is generally sought, brings about its striking
dissimilarity with the situation in which a person who is arrested for the commission of a 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 sub-section (1) of that section says that the court “may, if it thinks fit” issue the
necessary direction for bail, sub-section (2) confers on the court the power to include 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 sub-section. The controversy
therefore is not whether the court has the power to impose conditions while granting
anticipatory bail. It clearly and expressly has that power. The true question is whether by a
process of construction, the amplitude of judicial discretion which is given to the High Court
and the Court of Session, to impose such conditions as they may think of it while granting
anticipatory bail, should be cut down by reading into the statute conditions which are not to be
found therein, like those evolved by the High Court or canvassed by the learned Additional
Solicitor General. Our answer, clearly, and emphatically, is in the negative. The High Court
and the Court of Session to whom the application for anticipatory bail is made ought to be left
free in the exercise of their judicial discretion to grant bail if they consider it fit so to do on the
particular facts and circumstances of the case and on such condition as the case may warrant.
Similarly, they must be left free to refuse bail if the circumstances of the case so warrant, on
considerations similar to those mentioned in Section 437 or which are generally considered 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
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up unforeseen possibilities and offers new challenges. Judicial discretion has to be free enough
to be able to take these possibilities in its stride and to meet these challenges. While dealing
with the necessity for preserving judicial discretion unhampered by rules of general application
Earl Loreburn, L.C. said in Hyman v. Rose [1912 AC 623]:
I desire in the first instance to point out that the discretion given by the section is very wide
…. Now it seems to me that when the Act is so expressed to provide a wide discretion, …
it is not advisable to lay down any rigid rules for guiding that discretion. If it were
otherwise, the free discretion given by the statute would be fettered by limitations, which
have nowhere been enacted. It is one thing to decide what is the true meaning of the
language contained in an Act of Parliament. It is quite a different thing to place conditions
upon a free discretion entrusted by statute to the court where the conditions are not based
upon statutory enactment at all. It is not safe, I think, to say that the court must and will
always insist upon certain things when the Act does not require them, and the facts of some
unforeseen case may make the court wish it had kept a free hand.
15. Judges have to decide cases as they come before them, mindful of the need to keep
passions and prejudices out of their decisions. And it will be strange if, by employing judicial
artifices and techniques, we cut down the discretion so wisely conferred upon the courts, by
devising a formula which will confine the power to grant anticipatory bail within a strait-jacket.
While laying down cast-iron rules in a matter like granting anticipatory bail, as the High Court
has done it is apt to be overlooked that even judges can have but an imperfect awareness of the
needs of new situations. Life is never static and every situation has to be assessed in the context
of emerging concerns as and when it arises. Therefore, even if we were to frame a ‘Code for the
grant of anticipatory bail’, which really is the business of the legislature, it can at best furnish
broad guidelines and cannot compel blind adherence. In which case to grant bail and in which
to refuse it is, in the very nature of things, a matter of discretion. But apart from the fact that
the question is inherently of a kind which calls for the use of discretion from case to case, the
legislature has, in terms express, relegated the decision of that question to the discretion of the
court, by providing that it may grant bail “if it thinks fit”. The concern of the courts generally
is to preserve their discretion without meaning to abuse it. It will be strange if we exhibit
concern to stultify the discretion conferred upon the courts by law.
16. A close look at some of the rules in the eight-point code formulated by the High Court
will show how difficult it is to apply them in practice. The seventh proposition says:
The larger interest of the public and State demand that in serious cases like economic
offences involving blatant corruption at the higher rungs of the executive and political power,
the discretion under Section 438 of the Code should not be exercised.
17. How can the court, even if it had a third eye, assess the blatantness of corruption at the
stage of anticipatory bail? And will it be correct to say that blatantness of the accusation will
suffice for rejecting bail, if the applicant’s conduct is painted in colours too lurid to be true? The
eighth proposition rule framed by the High Court says:
Mere general allegations of mala fides in the petition are inadequate. The court must be
satisfied on materials before it that the allegations of mala fides are substantial and the
accusation appears to be false and groundless.
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Does this rule mean, and that is the argument of the learned Additional Solicitor-General,
that anticipatory bail cannot be granted unless it is alleged (and naturally, also shown, because
mere allegation is never enough) that the proposed accusation are malafide? It is understandable
that if mala fides are shown, anticipatory bail should be granted in the generality of cases. But
it is not easy to appreciate why an application for anticipatory bail must be rejected unless the
accusation is shown to be malafide. This, truly, is the risk involved in framing rules by judicial
construction. Discretion, therefore, ought to be permitted to remain in the domain of discretion,
to be exercised objectively and open to correction by the higher courts. The safety of
discretionary power lies in this twin protection which provides a safeguard against its abuse.
18. According to the sixth proposition framed by the High Court, the discretion under
Section 438 cannot be exercised in regard to offences punishable with death or imprisonment
for life unless, the court at the stage of granting anticipatory bail, is satisfied that such a charge
appears to be false or groundless. Now, Section 438 confers on the High Court and the Court
of Session the power to grant anticipatory bail if the applicant has reason to believe that he may
be arrested on an accusation of having committed “a non-bailable offence”. We see no warrant
for reading into this provision the conditions subject to which bail can be granted under Section
437(1) of the Code. That section, while conferring the power to grant bail in cases of nonbailable offences, provides by way of an exception that a person accused or suspected of the
commission of a non-bailable offence “shall not be so released” if there 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 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 case 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 are or are not
reasonable grounds for so believing. The foundation of the belief spoken of in Section 437(1),
by reason of which the court cannot release there applicant on bail is, normally, the credibility
of the allegations contained in the first information report. In the majority of cases falling under
Section 438, that data will be lacking for forming the requisite belief. If at all the conditions
mentioned in Section 437 are to be read into the provisions of Section 438, the transplantation
shall have to be done without amputation. That is to say, on the reasoning of the High Court,
Section 438(1) shall have to be read as containing the clause that the applicant “shall not” be
released on bail “if there appear reasonable grounds for believing that he has been guilty of an
offence punishable with death or imprisonment for life”. In this process one shall have
overlooked that whereas, the power under Section 438(1) can be exercised if the High Court or
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the Court of Session “thinks fit” to do so, Section 437(1) does not confer the power to grant bail
in the same wide terms. The expression “if it thinks fit”, which occurs in Section 438(1) in
relation to the power of the High Court or the Court of Session, is conspicuously absent in
Section 437(1). We see no valid reason for rewriting Section 438 with a view, not to expanding
the scope and ambit of the discretion conferred on the High Court and the Court of Session but,
for the purpose of limiting it. Accordingly, we are unable to endorse the view of the High Court
that anticipatory bail cannot be granted in respect of offences like criminal breach of trust for
the mere reason that the punishment provided therefor is imprisonment for life. Circumstances
may broadly justify the grant of bail in such cases too, though of course, the court is free to
refuse anticipatory bail in any case if there is material before it justifying such refusal.
19. A great deal has been said by the High Court on the fifth proposition framed by it,
according to which, inter alia, the power under Section 438 should not be exercised if the
investigating agency can make a reasonable claim that it can secure incriminating material from
information likely to be received from the offender under Section 27 of the Evidence Act.
According to the High Court, it is right and the duty of the police to investigate into offences
brought to their notice and therefore, courts should be careful not to exercise their powers in a
manner, which is calculated to cause interference therewith. It is true that the functions of the
judiciary and the police are in a sense complementary and not overlapping. And, as observed
by the Privy Council in King-Emperor v. Khwaja Nazir Ahmed [AIR 1945 PC 18]:
Just as it is essential that every one accused of a crime should have free access to a court
of justice so that he may be duly acquitted if found not guilty of the offence with which he
is charged, so it is of the utmost importance that the judiciary should not interfere with the
police in matters which are within their province and into which the law imposes on them
the duty of inquiry …. The functions of the judiciary and the police are complementary, not
overlapping, and the combination of the individual liberty with a due observance of law
and order is only to be obtained by leaving each to exercise its own function, . . .
But these remarks, may it be remembered, were made by the Privy Council while rejecting
the view of the Lahore High Court that it had inherent jurisdiction under the old Section 561-
A, Criminal Procedure Code, to quash all proceedings taken by the police in pursuance of two
first information reports made to them. An order quashing such proceedings puts an end to the
proceedings with the inevitable result that all investigation into the accusation comes to a halt.
Therefore, it was held that the court cannot, in the exercise of its inherent powers, virtually
direct that the police shall not investigate into the charges contained in the 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
subsection (2)(i) and (ii) which require the applicant to co-operate 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.
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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 information supplied by a person released on bail by invoking the principle stated by this
Court in State of U.P. v. Deoman Upadhyaya [AIR 1960 SC 1125] to the effect that when a
person not in custody approaches a police officer investigating an offence and offers to give
information leading to the discovery of a fact, having a bearing on the charge which may be
made against him, he may appropriately be deemed so have surrendered himself to the police.
The broad foundation of this rule is stated to be that Section 46 of the Code of Criminal
Procedure does not contemplate any formality before a person can be said to be taken in
custody: submission to the custody by word or action by a person is sufficient. For similar
reasons, we are unable to agree that anticipatory bail should be refused if a legitimate case for
the remand of the offender to the police custody under Section 167(2) of the Code is made out
by the investigating agency.
20. It is unnecessary to consider the third proposition of the High Court in any great details
because we have already indicated that there is no justification for reading into Section 438 the
limitations mentioned in Section 437. The High Court says that such limitation are implicit in
Section 438 but, with respect, no such implication arise or can be read into that section. The
plenitude of the section must be given its full play.
21. The High Court says in its fourth proposition that in addition to the limitations
mentioned in Section 437, the petitioner must make out a “special case” for exercise of the
power to grant anticipatory bail. This, virtually, reduces the salutary power conferred by Section
438 to a dead letter. In its anxiety, otherwise just, to show that the power conferred by Section
438 is not “unguided or uncanalised”, the High Court has subjected that power to restraint which
will have the effect of making the power utterly unguided. To say that the applicant must make
out a “special case” for the exercise of the power to grant anticipatory bail is really to say
nothing. The applicant has undoubtedly to make out a case for the grant of anticipatory bail.
But one cannot go further and say that he must make out a “special case”. We do not see why
the provisions of Section 438 should be suspected as containing something volatile or
incendiary, which needs to be handled with the greatest care and caution imaginable. A wise
exercise of judicial power 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 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 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
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circumspection, depending on circumstances justifying its exercise. It is unnecessary to travel
beyond it and subject the wide power conferred by the legislature to a rigorous code of selfimposed limitation.
23. It remains only to consider the second proposition formulated by the High Court, which
is the only one with which we are disposed to agree but we will say more about it a little later.
24. It will be appropriate at this stage to refer to a decision of this Court in Balchand Jain
v. State of Madhya Pradesh [(1976) 4 SCC 572] on which the High Court has learned heavily
in formulating its propositions. One of us, Bhagwati, J. who spoke for himself and A. C. Gupta,
J. observed in that case that:
This power of granting ‘anticipatory bail’ is somewhat extraordinary in character and it is
only in exceptional cases where it appears that a person might be falsely implicated, or a
frivolous case might be launched against him, or “there are reasonable grounds for holding
that a person accused of an offence is not likely to abscond or otherwise misuse his liberty
while on bail” that such power is to be exercised.
Fazal Ali, J. who delivered a separate judgment of concurrence also observed that: (SCC
pp. 582-83, para 14)
An order for anticipatory bail is an extraordinary remedy available in special cases . . . and
proceeded to say:
As Section 438 immediately follows Section 437 which is the main provision for bail in
respect of non-bailable offences, it is manifest that the conditions imposed by Section
437(1) are implicitly contained in Section 438 of the Code. Otherwise the result would be
that a person who is accused of murder can get away under Section 438 by obtaining an
order for anticipatory bail without the necessity of proving that there were reasonable
grounds for believing that he was not guilty of offence punishable with death of
imprisonment for life. Such a course would render the provisions of Section 437 nugatory
and will give a free licence to the accused persons charged with non-bailable offences to
get easy bail by approaching the court under Section 438 and bypassing Section 437 of the
Code. This, we feel could never have been the intention of the legislature. Section 438 does
not contain unguided or uncanalised powers to pass an order for anticipatory bail, but such
an order being of an exceptional type can only be passed if, apart from the conditions
mentioned in Section 437, there is a special case made out for passing the order. The words
“for a direction under this section” and “court may if it thinks fit, direct” clearly show that
the court has to be guided by a large number of considerations including those mentioned
in Section 437 of the Code.
While stating his conclusions Fazal Ali, J. reiterated in conclusion No. 3 that “Section 438
of the Code is an extraordinary remedy and should be resorted only in special cases.”
25. We hold the decision in Balchand Jain in great respect but it is necessary to remember
that the question as regards the interpretation of Section 438 did not at all arise in that case.
Fazal Ali, J. has stated in paragraph 3 of his judgement that “the only point” which arose for
consideration before the court was whether the provisions of Section 438 relating to anticipatory
bail stand overruled and repealed by virtue of Rule 184 of the Defence and Internal Security of
India Rules, 1971 or whether both the provisions can, by the rule of harmonious interpretation,
exist side by side. Bhagwati, J. has also stated in his judgement, after adverting to Section 438
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that Rule 184 is what the court was concerned with in the appeal. The observations made in
Balchand Jain regarding the nature of the power conferred by Section 438 and regarding the
question whether the conditions mentioned in Section 437 should be read into Section 438
cannot therefore be treated as concluding the points which arise directly for our consideration.
We agree, with respect, that the power conferred by Section 438 is of an extraordinarily
character in the sense indicated above, namely, that it is not ordinarily resorted to like the
power conferred by Section 437 and 439. We also agree that the power to grant anticipatory
bail should be exercised with due care and circumspection but beyond that it is not possible to
agree with observations made in Balchand Jain altogether different context on an altogether
different point.
26. We find a great deal of substance in Mr. Tarkunde’s submission that since denial of bail
amounts to deprivation of personal liberty, the court should lean against the imposition of
unnecessary restrictions on the scope of 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 personal liberty of the individual, who is entitled to the
benefit of the presumption of innocence since he is not, on the date of his application for
anticipatory bail, convicted of the offence in respect of which he seeks bail. An over-generous
infusion of constraints and conditions which are not to be found in Section 438 can make its
provisions constitutionally vulnerable since the right to personal freedom cannot be made to
depend on compliance with unreasonable restrictions. The beneficent provision contained in
Section 438 must be saved, not jettisoned. No doubt can linger after the decision in Maneka
Gandhi [Maneka Gandhi v. Union of India (1978) 1 SCC 248] that in order to meet the
challenge of Article 21 of the Constitution, the procedure established by law for depriving a
person of his liberty must be fair, just and reasonable. Section 438 in the form in which it is
conceived by the legislature, is open to no exception on the ground that it prescribes a procedure
which is unjust or unfair. We ought, at all costs to avoid throwing it open to a constitutional
challenge by reading words in it which are not to be found therein.
27. It is not necessary to refer to decision, which deal with the right to ordinary bail because
that right does not furnish an exact parallel to the right to anticipatory bail. It is, however,
interesting that as long back as in 1924 it was held by the High Court of Calcutta in Nagendra
v. King-Emperor (AIR 1924 Cal 476) that the object of bail is to secure the attendance of the
accused at the trial, that the proper test to be applied in the solution of the question whether bail
should be granted or refused is whether it is probable that the party will appear to take his trial
and that it is indisputable that bail is not to be withheld as punishment. In two other cases which,
significantly, are the ‘Meerut Conspiracy cases’ observations are to be found regarding the right
to bail, which deserve a special mention. In K. N. Joglekar v. Emperor (AIR 1931 All 504) it
was observed, while dealing with Section 498 which corresponds to the present Section 439 of
the Code, that it conferred upon the Sessions Judge or the High Court wide powers to grant bail
which were not handicapped by the restrictions in the preceding Section 497 which corresponds
to the present Section 437. It was observed by the court that there was no hard and fast rule and
no inflexible principle governing the exercise of the discretion conferred by Section 498 and
that the only principle which was established was that the discretion should be exercised
judiciously. In Emperor v. Hutchinson (AIR 1931 All 356) it was said that it was very unwise
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to make an attempt to lay down any particular rules which will bind the High Court, having
regard to the fact that the legislature itself left the discretion of the court unfettered. According
to the High Court, the variety of cases that may arise from time to time cannot be safely
classified and it is dangerous to make an attempt to classify the cases and to say that in particular
classes a bail may be granted but not in other classes. It was observed that the principle to be
deduced from the various sections in the Criminal Procedure Code was that grant of bail is the
rule and refusal is the exception. An accused person who enjoys freedom is in a much better
position to look after his case and to properly defend himself than if he were in custody. As a
presumably innocent person he is therefore entitled to freedom and every opportunity to look
after his own case. A presumably innocent person must have his freedom to enable him to
establish his innocence.
28. Coming nearer home, it was observed by Krishna Iyer, J., in Gudikanti Narasimhulu
v. Public Prosecutor [(1978) 1 SCC 240] that:. . . the issue of bail is one of liberty, justice,
public safety and burden of the public treasury, all of which insist that a developed
jurisprudence of bail is integral to a socially sensitized judicial process. . . . After all, personal
liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of
procedure established by law. The last four words of Article 21 are the life of that human right.
29. In Gurcharan Singh v. State (Delhi Administration) [(1978) 1 SCC 118] it was
observed by Goswami, J., who spoke for the court that:
There cannot be an inexorable formula in the matter of granting bail. The facts and
circumstances of each case will govern the exercise of judicial discretion in granting or
cancelling bail.
30. In AMERICAN JURISPRUDENCE (2d, Volume 8, page 806, para 39), it is stated:
Where the granting of bail lies within the discretion of the court, the granting or denial is
regulated, to a large extent, by the facts and circumstances of each particular case. Since
the object of the detention or imprisonment of the accused is to secure his appearance and
submission to the jurisdiction and the judgement of the court, the primary inquiry is
whether a recognizance or bond would effect that end.
It is thus clear that the question whether to grant bail or not depends for its answer upon a
variety of circumstances, the cumulative effect of which must enter into the judicial verdict.
Any one single circumstance cannot be treated as of universal validity or as necessarily
justifying the grant or refusal of bail.
31. In regard to anticipatory bail if the proposed accusation appears to stem not from
motives of furthering the ends of justice but from some ulterior motive, the object being to
injure and humiliate the applicant by having him arrested, a direction for the release of the
applicant on bail in the event of his arrest would generally be made. On the other hand, if it
appears likely, considering the antecedents of the applicant, that taking advantage of the order
of anticipatory bail he will flee from justice, such an order would not be made. But the converse
of these propositions is not necessarily true. That is to say, it cannot be laid down as an
inexorable rule that anticipatory bail cannot be granted unless the proposed accusation appears
to be actuated by mala fides; and, equally, that anticipatory bail must be granted if there is no
fear that the applicant will abscond. There are several other considerations, too numerous to
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enumerate, the combined effect of which must weigh with the court while granting or rejecting
anticipatory bail. The nature and seriousness of the proposed charges, the context of the events
likely to lead to the making of the charges, a reasonable possibility of the applicant’s presence
not being secured at the trial, a reasonable apprehension that witnesses will be tampered with
and “the larger interests of the public or the State” are some of the considerations which the
court has to keep in mind while deciding an application for anticipatory bail. The relevance of
these considerations was pointed out in The State v. Captain Jagjit Singh (AIR 1962 SC 253),
which, though was a case under the old Section 498 which corresponds to the present Section
439 of the Code. It is of paramount consideration to remember that the freedom of the individual
is as necessary for the survival of the society as it is for the egoistic purpose of the individual.
A person seeking anticipatory bail is still a free man entitled to the presumption of innocence.
He is willing to submit to restraints on his freedom, by the acceptance of condition which the
court may think fit to impose, in consideration of the assurance that if arrested he shall be
enlarged on bail.
32. A word of caution may perhaps be necessary in the evaluation of the consideration
whether the applicant is likely to abscond. There can be no presumption that the wealthy and
the mighty will submit themselves to trial and that the humble and the poor will run away from
the course of justice, any more than there can be a presumption that the former are not likely to
commit a crime and the latter are more likely to commit it. In his charge to the grand jury at
Salisbury Assizes, 1899 (to which Krishna Iyer, J. has referred in Gudikanti [(1978) 1 SCC
240], Lord Russel of Killowen said:
(I)t was the duty of magistrates to admit accused persons to bail, wherever practicable,
unless there were strong grounds for supposing that such persons would not appear to take
their trial. It was not the poorer classes who did not appear, for their circumstances were
such as to tie them to the place where they carried on their work. They had not the golden
wings with which to fly from justice.
This, incidentally, will serve to show how no hard and fast rules can be laid down in
discretionary matters like the grant or refusal of bail, whether anticipatory or otherwise. No
such rules can be laid down for the simple reason that a circumstance which, in a given case,
turns out to be conclusive, may have no more than ordinary signification in another case.
33. We would therefore, prefer to leave the High Court and the Court of Session to exercise
their jurisdiction under Section 438 by a wise and careful use of their discretion which, by their
long training and experience, they are ideally suited to do. The ends of justice will be better
served by trusting these courts to act objectively and in consonance with principles governing
the grant of bail which are recognised over the years, than by divesting them of their discretion
which the legislature has conferred upon them, by laying down inflexible rules of general
application. It is customary, almost chronic to take a statute as one finds it on the ground that,
after all, “the legislature in its wisdom” has thought it fit to use a particular expression. A
convention may usefully grow whereby the High Court and the Court of Session may be trusted
to 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.
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34. This should be the end of the matter, but it is necessary to clarify a few points, which
have given rise to certain misgivings.
35. Section 438(1) of the Code lays down a condition, which has to be satisfied before
anticipatory bail can be granted. The applicant must show that he has “reason to believe” that
he may be arrested for a non-bailable offence. The use of the expression “reason to believe”
shows that the belief that the applicant may be so arrested must be founded on reasonable
grounds. Mere ‘fear’ is not ‘belief’, for which reason it is not enough for the applicant to show
that he has 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 non-bailable offence, must be capable of being
examined by the court objectively, because it is then alone that the court can determine whether
the applicant has reason to believe that he may be so arrested. 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 application for anticipatory bail will be as
large as, at any rate, the adult populace. Anticipatory bail is a device to secure the individual’s
liberty; it is neither a passport to the commission of crimes nor a shield against any or all kinds
of accusations, likely or unlikely.
36. Secondly if an application for anticipatory bail is made to the High Court or the Court
of Session it must apply its own mind to the question and decide whether a case has been made
out for granting such relief. It cannot leave the question for the decision of the Magistrate
concerned under Section 437 of the Code, as and when an occasion arises. Such a course will
defeat the very object of Section 438.
37. Thirdly, the filing of a first information report is not a condition precedent to the
exercise of the power under Section 438. The imminence of a likely arrest founded on a
reasonable belief can be shown to exist even if an FIR is not yet filed.
38. Fourthly, anticipatory bail can be granted even after an FIR is filed, so long as the
applicant has not been arrested.
39. Fifthly, the provisions of Section 438 cannot be invoked after the arrest of the accused.
The grant of “anticipatory bail” to an accused who is under arrest involves a contradiction in
terms, insofar as the offence or offences for which he is arrested, are concerned. After arrest,
the accused must seek his remedy under Section 437 or Section 439 of the Code, if he wants to
be released on bail in respect of the offence or offences for which he is arrested.
40. We have said that there is one proposition formulated by the High Court with which we
are inclined to agree. That is proposition (2). We agree that a ‘blanket order’ of anticipatory bail
should not generally be passed. This flows from the very language of the section which, as
discussed above, requires the applicant to show that he has “reason to believe” that he may be
arrested. A belief can be said to be founded on reasonable grounds only if there is something
tangible to go by on the basis of which it can be said that the applicant’s apprehension that he
may be arrested is genuine. That is why, normally, a direction should not issue under 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
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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. 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 alleged to have been committed by the applicant and when, an order of bail which
comprehends allegedly unlawful activity of any description whatsoever, will prevent the police
from arresting the applicant even if he commits, say, a murder in the presence of the public.
Such an order can then become a charter of lawlessness and a weapon to stifle prompt
investigation into offences which could not possibly be predicated when the order was passed.
Therefore, the court which grants anticipatory bail must take care to specify the offence or
offences in respect of which alone the order will be effective. The power should not be exercised
in a vacuum.
42. There was some discussion before us on certain minor modalities regarding the passing
of bail orders under Section 438(1). Can an order of bail be passed under the section without
notice to the Public Prosecutor? It can be. But notice should issue to the Public Prosecutor or
the Government Advocate forthwith and the question of bail should be re-examined in the light
of the respective contentions of the parties. The ad interim order too must conform to the
requirements of the section and suitable conditions should be imposed on the applicant even at
that stage. Should the operation of an order passed under Section 438(1) be limited in point of
time? Not necessarily. The court may, if there are reasons for doing so, limit the operation of
the order to a short period unit after the filing of an 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 reasonably short period after the filing of the FIR as aforesaid. But
this need not be followed as an invariable rule. The normal rule should be not to limit the
operation of the order in relation to a period of time.
43. During the last couple of years this Court, while dealing with appeals against orders
passed by various High Courts, has granted anticipatory bail to many a person by imposing
conditions set out in 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
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will remain in operation only for a week or so until after the filling 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.
44. The various appeals and special leave petitions before us will stand disposed of in terms
of this judgment. The judgment of the Full Bench of the Punjab and Haryana High Court, which
was treated as the main case under appeal is substantially set aside as indicated during the
course of this judgment.
