Page 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 1134-1135 OF 2015 [arising out of Special Leave Petition (Crl.) Nos. 6028-6029 of 2014]

BHADRESH BIPINBHAI SHETH .....APPELLANT(S)

VERSUS

STATE OF GUJARAT & ANOTHER .....RESPONDENT(S)

J U D G M E N T

A.K. SIKRI, J.

Leave granted.

2. The appellant herein, in these appeals, challenges the validity of

the  judgment  dated  18.07.2014  passed  by  High  Court  of

Judicature at Gujarat cancelling the anticipatory bail which was

granted to the appellant by the Additional Sessions Judge, Court

No.16 of Ahmedabad City Sessions Court.   

3. Before coming to the factual narrative of a long drawn event that

has taken place in respect of criminal trial pending against the

appellant,  we  would  like  to  state,  in  capsiculated  manner, the

Criminal Appeal Nos. 1134-1135 of 2015 Page 1 of 31 (arising out of SLP (Crl.) Nos. 6028-6029 of 2014)

Page 2

circumstances  under  which  the  matter  has  landed  up  in  this

Court.   

The appellant and respondent No.2 (hereinafter referred to

as  the 'prosecutrix')  were  neighbours  at  the relevant  time and

known to each other.  On 29.05.2001, the prosecutrix wrote a

complaint to the Assistant Police Commissioner, Crime Branch,

Gaekwad Haveli, Ahmedabad City alleging the harassment that

was meted out  to  her  by  the appellant  over  a  period of  time.

Allegations of rape, emotional blackmail and threats were levelled

against the appellant therein.  After two days i.e. on 31.05.2001,

her statement was recorded by a Police officer of the concerned

Police  Station  wherein  she  again  levelled  the  allegations  of

maltreatment, blackmail etc.  However, in this statement of hers,

which was recorded by the Investigating Officer (I.O.), allegations

of rape were conspiciously missing.  On the basis of statement

made  on  31.05.2001,  F.I.R.  was  registered  and  charge  under

Section 506(2) of Indian Penal Code (IPC) was framed in the year

2001. The appellant was admitted to bail in the said case.  Trial

has proceeded which has not made much headway for number of

years. In the year 2010, the prosecutrix made an application for

addition  of  charge  under  Section  376  IPC  as  well.   The

Metropolitan Magistrate held that the said application should  be

Criminal Appeal Nos. 1134-1135 of 2015 Page 2 of 31 (arising out of SLP (Crl.) Nos. 6028-6029 of 2014)

Page 3

taken  into  consideration  only  after  chief  examination  of  the

complainant.  The prosecutrix challenged the said order before

the Court of City Session Judge at Ahmedabad.  The matter was

remanded back to the Metropolitan Magistrate  with  a direction

that the application shall be heard afresh in its entirety after giving

opportunity  to  both  parties.   On  31.03.2012,  the  Metropolitan

Magistrate directed the Police to carry out special investigation

under  Section  173(8)  of  the  Code  of   Criminal  Procedure

(hereinafter referred to as the 'Code').   Being not satisfied, the

parties challenged the above order.  The matter travelled up to

this Court wherein certain directions were issued.  Ultimately, the

Police filed a revised chargesheet stating that a prima facie case

under Section 376 IPC was also made out.  In view of addition of

charge under Section 376 IPC, the Magistrate passed the order

on 25.04.2013 for committal of proceedings to the Sessions Court

and taking the appellant into custody.  However, execution of this

order  for  taking  the  appellant  into  custody  was  stayed  till

07.05.2013.   During  this  period,  the  appellant  moved the  City

Sessions Court No.16 at Ahmedabad for grant of anticipatory bail

which was ultimately granted on 18.05.2013.  Against this order of

grant  of  anticipatory  bail,  the prosecutrix  filed  criminal  revision

petition which has been allowed by the High Court vide impugned

Criminal Appeal Nos. 1134-1135 of 2015 Page 3 of 31 (arising out of SLP (Crl.) Nos. 6028-6029 of 2014)

Page 4

order dated 18.07.2014 cancelling the anticipatory bail granted to

the appellant.   As pointed out  above, it  is  the justification and

legality of this order which is in question before us in the instant

appeals.   

4. The  aforesaid brief resume depicts that the charge was framed

against the appellant initially in the year 2001 only under Section

506(2) of IPC.  Insofar as charge under Section 376 of IPC is

concerned, it is added only in the year 2014.  Further, the original

charge was framed under Section 506(2) IPC on the basis of the

statement recorded on 31.05.2001 which was treated as FIR and

which did not contain the allegation of rape.  If one has to go by

these facts, coupled with the fact that allegation of rape is of the

year  1997-98,  one  may  not  find  fault  with  the  order  of  the

Additional Session Judge granting anticipatory bail. However, the

impugned  order  passed  by  the  High  Court  whereby  the

anticipatory  bail  order  of  the  Additional  Session  Judge  is

cancelled, does not take the matter in such a simplistic manner

and, therefore, a detailed discussion on the issue has become

imperative.   

5. The High Court took note of the circumstances which led to the

addition of  charge under  Section 376 IPC at  a  belated stage.

Criminal Appeal Nos. 1134-1135 of 2015 Page 4 of 31 (arising out of SLP (Crl.) Nos. 6028-6029 of 2014)

Page 5

Thus, it would be necessary to take stock of those detailed events

and thereafter decide as to whether the order of the High Court is

sustainable or not.  These facts are recapitulated with elaboration

which is absolutely necessary for our purposes, as under:

6. As  mentioned  above,  before  registration  of  the  FIR  on

31.05.2001 on the basis of  the statement,  the prosecutrix  had

filed  a  complaint  on  29.05.2001  before  the  Assistant

Commissioner of  Police,  Crime Branch.  In this complaint,  she

stated  that  she  is  a  housewife  and  had  been  residing  at  1,

Navpad Tenement, Opposite Nava Vikas Gruh, Behind Opera for

1½ years.  She  further  mentioned  that  prior  to  shifting  to  this

place, she was residing with her in-laws at Sanand for 10 years.

She was married,  with three children,  and her husband was a

Jeweller. She alleged in the complaint that about 2½-3 years prior

thereto,  she  had  gone to  C.N.  Vidhyalaya  where  her  daugher

Devel was studying.  To return home, she was to catch a Bus.

When she was standing at the Bus Stand, the appellant, who was

her neighbour, passed through that place in his car and on seeing

the prosecutrix,  he asked her to sit  in the car as he was also

going home.  Though, she initially refused but thereafter she sat

in the car being unaware of his malafide intentions.  Thereafter,

Criminal Appeal Nos. 1134-1135 of 2015 Page 5 of 31 (arising out of SLP (Crl.) Nos. 6028-6029 of 2014)

Page 6

he took the car  to  some uninhabited place near  Telav Village,

beat her and forcefully raped her.  He also threatened her not to

narrate the above incident to anybody.  Being scared of these

threats, she did not tell the incident to anybody.  Taking benefit of

the circumstances, after one month he repeated the act of rape

by giving the threat that if the prosecutrix did not agree, he would

tell her husband and others.   He took her to Hotel Ellis Town and

raped her against her wishes.  After that, he threatened her of

dire consequences saying that  he had taken her  photographs.

This  way  he  continued  to  keep  relations  with  the  prosecutrix.

This complaint further states that she shifted to Ahmedabad but

even after coming to Ahmedabad, he started sending letters with

the threat to defame her.  At that stage, she told her husband and

in-laws.  She went to Jyoti Sangh, a NGO and encouraged by

their support, she lodged the complaint of continuous harassment

on the part of the appellant.   

7. On 31.05.2001, her statement was recorded in the Police Station

by  the  IO  in  which  the  allegations  of  misbehaviour  by  the

appellant are contained and the entire statement reads as under:

“The  plaintiff  Manishaben  dictates  that  though the  complaint  is  lodged  against  the  defendant Bhadresh,  he  is  not  impoved  till  today.   Our condition  is  becoming  worst  day  by  day.   In

Criminal Appeal Nos. 1134-1135 of 2015 Page 6 of 31 (arising out of SLP (Crl.) Nos. 6028-6029 of 2014)

Page 7

these  two  days,  Bhadresh  is  making  horrible face  reading  while  our  access  and  is  doing abusive and filthy behaviour.  Yesterday, during the night hours at about 8.15 hours, mother of Bhadresh was speaking in a very loud tone in a way  that  I  can  hear  the  same  as  they  are residing  in  front  of  us  that  we  will  pay maintenance  and  Bhadresh  himself  was speaking like this and telling me to live as his KEPT is also speaking like this.  He is laughing in a satire manner in front of my house and he is also  behaving  with  my  husband  in  a  abusive manner which could not be borne or disclosed. At this time, when we left from Sanand to come to  Ahmedabad,  workman  of  Bhadresh  was chasing us and was behind us for about 3 to 4 km and I  do not  know if  any other associates were  of  him  or  not  going  ahead,  but  his associates  are  remaining  present  surrounding me in a manner that he was keeping our watch chasing us even though I myself or my husband were not speaking anything.  Now, I am worried about  my  daughter  who  is  growing  and becoming  young  because  Bhadresh  is  also looking to her with bad intention.  His intention appears to be mal.

I have dictated the above statement in full sound  state  of  mind  and  without  any  undue pressure.   

Before me      Sd/- Manish K Mehta Vandana Patva      Date: 31.05.2001 31.05.2001”

8. During preliminary inquiries, the Police recorded the statements

of counsellors of Jyoti Sangh who confirmed that the prosecutrix

had made the statement to them regarding alleged rape by the

appellant.  Be that as it may, the FIR was registered only under

Section  506(2)  of  IPC  on  31.05.2001  bearing  C.R.  No.II.

Criminal Appeal Nos. 1134-1135 of 2015 Page 7 of 31 (arising out of SLP (Crl.) Nos. 6028-6029 of 2014)

Page 8

3009/2001 and on that basis, charge was framed only under the

aforesaid Section on 25.06.2001.  Further for one reason or the

other, the prosecution case even under the said charge did not

make any substantial progress.   

9. On 07.12.2010, an application was moved by the prosecutrix for

amending the charge by including the offence under Section 376

IPC  as  well  on  the  basis  of  complaint  dated  29.05.2001  and

treating the same as FIR.  Initially, the Metropolitan Magistrate did

not agree with this request and passed an order to the effect that

till the examination-in-chief of the prosecutrix was recorded, it was

not justifiable to amend/alter the charge.  However, in the revision

petition filed against that order, the Sessions Court remanded the

case  for  fresh  consideration.   After  remand,  the  order  dated

31.03.2012 was passed by the Metropolitan Magistrate directing

further investigation under Section 173(8) of the Code implying

thereby  that  the  necessity  of  framing  of  such  charge  would

depend upon the investigation carried out by the Police.  Without

stating the details, it suffices to mention that the matter was taken

by all  the parties  to  the Sessions Court  and then to  the High

Court.  Thereafter, the prosecutrix even came up to this Court by

way  of  SLP  (Crl.)  No.636/2013  against  the  order  dated

Criminal Appeal Nos. 1134-1135 of 2015 Page 8 of 31 (arising out of SLP (Crl.) Nos. 6028-6029 of 2014)

Page 9

23.10.2012 passed by the High Court which had upheld the order

of the Magistrate who had already ordered further investigation.

Said  SLP  (Crl.)  No.636/2013  was  disposed  of  on  04.02.2013

taking note of the fact that though the Metropolitan Magistrate had

ordered further inquiry by the Police on 31.03.2012 with direction

to submit the report within four weeks, no such report had been

submitted  till  that  date.   On  that  basis,  following  order  was

passed:

“We are informed that till  today the police has not  submitted  the  final  report  pursuant  to  the order passed by the Magistrate.  If that is so, we are both surprised and pain at the inaction of the police and we direct the Investigating Officer of Criminal  Case No. 51 of  2011, pending before the Metropolitan Magistrate, as directed by the Magistrate, and submit the final report within four weeks from the date of  receipt/production of  a copy of this order before him.

In  view  of  the  above  direction,  the  petitioner does not wish to press this special leave petition any longer.  It is dismissed as not pressed.”

10. Thereafter, the Police completed the investigation and submitted

the report.  The Police filed the chargesheet adding Section 376

of the IPC against the appellant and on that basis, an order was

passed  by  the  Additional  Chief  Metropolitan  Magistrate  on

25.04.2013 thereby committing the case to the Sessions Court

and  further  directing  that  the  appellant  be  taken  into  judicial

Criminal Appeal Nos. 1134-1135 of 2015 Page 9 of 31 (arising out of SLP (Crl.) Nos. 6028-6029 of 2014)

Page 10

custody, cancelling the bail bond.  It is in these circumstances the

appellant moved an application for grant of anticipatory bail to the

said  Sessions  Court  which  was  granted  on  18.05.2013.   As

already  noted  above,  the  order  granting  bail  to  the

appellant/accused has been cancelled by the High Court.   

11. Mr. Dushyant Dave and Mr. Harin Raval, learned senior counsel

appearing for the appellant took us through the material on record

on the basis of which it was sought to be argued that there was

acquaintance between the appellant and the prosecutrix and the

circumstances indicate that the physical relationship, if any, was

consensual.  It was also submitted that in her statement recorded

before the IO on 31.05.2001,  there was no allegation of  rape;

even when the charge was framed under Section 506(2) IPC the

prosecutrix  did  not  object  to  the  framing  of  the  said  charge

simplicitor or insist upon addition of charge under Section 376 of

IPC as well; after a gap of more than 9 years from the framing of

charge,  application  was  moved  for  this  purpose;  in  the  fresh

chargesheet filed by the IO, the IO clearly observed that no other

circumstantial evidence could be collected regarding the rape as

alleged by the complainant  except  her statement.   It  was also

submitted that in the complaint made to Jyoti Sangh, NGO, at the

Criminal Appeal Nos. 1134-1135 of 2015 Page 10 of 31 (arising out of SLP (Crl.) Nos. 6028-6029 of 2014)

Page 11

end of the complaint which was given by the prosecutrix, there

was a noting that no action be taken on the said complaint as the

parties were trying to arrive at amicable settlement.  The noting

reads as under:

“This  case file  be kept  pending and whenever we  want,  only  then,  you  do  contest  this  case again and it is the wish of both of them, this case is kept pending.

Before me Sd/- Manisha K. Mehta Vandana Patva 29.03.2001 29.03.2001.”

It  was also pointed out that between 2001 and 2010, the

prosecutrix did not appear to give her statement.  However, the

statement of one Vandana Patva, counsel in the said NGO was

recorded.  Mr. Dave referred to the cross-examination of the said

witness wherein this witness had admitted that in the statement

dated 31.05.2001 recorded by the Police, no fact regarding rape

was stated.  It was also not mentioned as to at which place and at

what time, incident of rape had taken place.  The learned senior

counsel, thus, submitted that in these circumstances the learned

Additional  Session Judge rightly granted anticipatory bail.   The

reasons adopted by the High Court  in cancelling the bail  were

commented upon by the learned counsel as not based on record,

particularly,  the  observations  of  the  High  Court  that  the

prosecutrix  had  to  run  a  marathon  for  getting  her  complaint

Criminal Appeal Nos. 1134-1135 of 2015 Page 11 of 31 (arising out of SLP (Crl.) Nos. 6028-6029 of 2014)

Page 12

registered as a FIR and more particularly for addition of charge

under Section 376 of IPC.  They further submitted that the High

Court  wrongly  recorded  that  the  Sessions  Court  had  failed  to

assign  proper  reasons  for  grant  of  anticipatory  bail.   It  was

pointed out  that the move on the part of  the appellant in filing

criminal cases against the husband of the prosecutrix, in which

the  prosecutrix  husband was acquitted,  is  treated  by the  High

Court as tampering with the evidence by disturbing the witnesses

and  on  that  basis,  it  is  observed  by  the  High  Court  that  the

appellant  was  not  entitled  to  the  benefit  of  anticipatory  bail.

Submission in this behalf was that even if the complaint or cases

lodged by the appellant against the husband of the prosecutrix

are presumed to be false, they had nothing to do with the instant

case and, therefore, such acts on the part of the appellant could

never be treated as tampering with the evidence.

12. The prosecutrix appeared in person and argued her case.  She

extensively took us through the counter affidavit  filed by her in

opposition to the present proceedings on the basis of which she

hammered the following aspects:

(a) The prosecutrix was harrased by the appellant.  First act of sexual

intercourse was against her wishes and was clearly a rape.  After

Criminal Appeal Nos. 1134-1135 of 2015 Page 12 of 31 (arising out of SLP (Crl.) Nos. 6028-6029 of 2014)

Page 13

committing  this  rape,  the appellant  threatened her  and  started

blackmailing her.  On that basis, he took undue advantage of the

hapless condition of the prosecutrix in which she was placed and

committed  subsequent  acts  of  intercourse  against  her  wishes

which were nothing but  commission of  offences under  Section

376 of IPC.

(b) Various  letters  were  written  by  the  appellant  not  only  to  the

prosecutrix  but  to  her  other  family  members  as  well,  which

showed  his  continued  harassment  to  the  prosecutrix  and  her

family members.   

(c) The appellant was even having an evil eye on the prosecutrix's

daughter who was of growing age and wanted to blackmail the

prosecutrix in this behalf as well.

(d) In order to harass the prosecutrix, the appellant even foisted false

cases on the husband of the prosecutrix in order to pressurize the

prosecutrix to withdraw the case in question.

(e) She also submitted that not only in the complaint made to Jyoti

Sangh on 19.03.2001, she had levelled allegations of rape, but

such allegations were also made in her complaint to the ACP on

29.05.2001.  According to her, in fact, the statement which was

recorded on 31.05.2001 by the IO was not correctly recorded who

intentionally  omitted her  statement  concerning her  rape by the

Criminal Appeal Nos. 1134-1135 of 2015 Page 13 of 31 (arising out of SLP (Crl.) Nos. 6028-6029 of 2014)

Page 14

appellant, though specifically stated.  It is because of this reason

that she had to file the application in the trial court for inclusion of

charge  under  Section  376  IPC  with  the  prayer  that  complaint

dated 29.05.2001 before the ACP should be treated as the FIR

and not the statement dated 31.05.2001 recorded by the IO.   

(f) She also submitted that she had to come up to this Court to have

the charge for offence under Section 376 of IPC framed against

the appellant.

13. Ms. Hemantika Wahi,  learned counsel appearing for  the State,

supported the plea of the prosecutrix.  Her submission was that

once the charge under Section 376 IPC has been added which

was a  serious  charge  and the  offence  being  non-bailable,  the

proper course of action was to direct the appellant to surrender

before the trial court and apply for regular bail.  Her submission

was that having regard to the seriousness of this charge, it was

not a case of anticipatory bail.

14. We have given our thoughtful and serious consideration to the

aforesaid  submissions  on  the  charges,  particularly,  keeping  in

mind that there is a charge of rape against the appellant and the

case projected by the prosecutrix is that as a helpless and weak

soul, she has been immensely harrassed, physically abused and

Criminal Appeal Nos. 1134-1135 of 2015 Page 14 of 31 (arising out of SLP (Crl.) Nos. 6028-6029 of 2014)

Page 15

mentally tortured by the appellant.   

15. In the first place, it is necessary to remind ourselves that in the

present  proceedings,  this  Court  is  concerned  not  about  the

feasibility of framing of the charge under Section 376 IPC or merit

thereof  but  to  the  grant  of  anticipatory  bail  to  the  appellant.

Therefore, the arguments of the prosecutrix that such a charge is

rightly  framed and the  submissions  on  behalf  of  the  appellant

attempting  to  find  the  loopholes  and  the  weakness  in  the

prosecution case, would not be of much relevance to the issue

involved.  At this stage, it cannot be said as to whether there was

any  physical  relationship  between  the  appellant  and  the

prosecutrix and, if so, whether it was consensual and, therefore,

no charge of rape was made out.  The fact remains that a charge

of rape has been framed.  It would ultimately be for the trial court

to  arrive  at  the  findings  as  to  whether  such  a  charge  stands

proved or not, on the basis of evidence that would be produced

by  the  prosecution  in  support  of  this  charge.   With  these

preliminary remarks, we advert to the core issue, namely, whether

in  the  circumstances  of  this  case,  appellant  was  entitled  to

anticipatory bail or not and whether the High Court was justified in

cancelling the anticipatory bail.   

Criminal Appeal Nos. 1134-1135 of 2015 Page 15 of 31 (arising out of SLP (Crl.) Nos. 6028-6029 of 2014)

Page 16

16. For this purpose, we would first  highlight  the admitted position

which runs as follows:

The allegations of rape go back to the years 1997-1998.  No

doubt,  in  the  statement  dated  19.03.2001 given  to  NGO Jyoti

Sangh  by  the  prosecutrix,  she  had  levelled  the  allegations  of

rape.  Equally, no doubt, she had repeated these allegations in

her complaint to ACP on 29.05.2001 as well.  However, for some

curious reasons, the allegations of rape did not find mention in

her statement recorded by the IO on 31.05.2001 on the basis of

which FIR was registered.  This possibility cannot be ruled out

that the IO did not record the statement correctly and intentionally

omitted to mention about the allegations of rape.  Whether this, in

fact,  happened would be tested during trial.  However, the fact

remains  that  when  the  FIR  was  registered  on  the  basis  of

statement recorded on 31.05.2001 and the chargesheet was filed

making out a prima facie case only under Section 506(2) of IPC,

the prosecutrix did not say anything at that time.  There was no

protest  even  when  charge  was  framed  by  the  concerned

Magistrate only under Section 506(2) IPC.  The objection in this

regard was raised for the first time in the year 2008 i.e. almost 7

years after the framing of the charge and application was filed in

Criminal Appeal Nos. 1134-1135 of 2015 Page 16 of 31 (arising out of SLP (Crl.) Nos. 6028-6029 of 2014)

Page 17

the year 2010 for including the charge under Section 376 IPC as

well  on  the  ground  that  her  complaint  to  the  ACP  given  on

29.05.2001 be treated as FIR.  The prosecutrix may have valid

reasons for this delay.  However, it  is not for us to go into the

same at this stage inasmuch as that is again a matter of trial and

it  would be for  the Sessions Court  to ultimately  adjudge as to

whether  such  delay  was  suitably  explained  and/or  has  any

bearing on the merits of the charge.  It is reiterated at the cost of

repetition that we have to simply decide the question of feasibility

of grant of anticipatory bail.   

17. In a matter like this where allegations of rape pertain to the period

which is almost 17 years ago and when no charge was framed

under Section 376 IPC in the year 2001, and even the prosecutrix

did not take any steps for almost 9 years and the charge under

Section  376  IPC  is  added  only  in  the  year  2014,  we  see  no

reason  why  the  appellant  should  not  be  given  the  benefit  of

anticipatory bail.  Merely because the charge under Section 376

IPC,  which  is  a  serious  charge,  is  now added,  the  benefit  of

anticipatory bail cannot be denied when such a charge is added

after a long period of time and inaction of the prosecutrix is also a

contributory factor.   

Criminal Appeal Nos. 1134-1135 of 2015 Page 17 of 31 (arising out of SLP (Crl.) Nos. 6028-6029 of 2014)

Page 18

18. The High Court has remarked that the complainant had to run a

marathon for getting her complaint registered as an FIR and more

particularly for addition of charge under Section 376 IPC.  In view

of what we have mentioned above, these observations are not

correct.  Further, the High Court has also wrongly mentioned that

the Sessions Court has not assigned proper reasons for grant of

anticipatory bail.  In fact, the reasons which have persuaded us

and  recorded  above,  are  precisely  the  reasons  given  by  the

Sessions  Court  itself  while  granting  anticipatory  bail  to  the

appellant. The High Court has also wrongly observed that it is the

appellant who was able to drag the matter for a decade before the

complaint was registered under proper Sections.  The record of

the case does not support this observation of the High Court.  As

far as the discussion in the impugned order commenting upon the

conduct  of  the  appellant  in  filing  false  complaints  and  cases

against the husband of the prosecutrix is concerned, we find that

the High Court has made contradictory remarks on this aspect.  At

one  place,  such  a  move  on  the  part  of  the  appellant  is

condemned as amounting to disturbing the witness and is treated

as tampering with evidence.  However, at another place, the High

Court  itself  remarked  that  the  complainant  or  the  prosecutrix

cannot get the anticipatory bail cancelled on this basis and the

Criminal Appeal Nos. 1134-1135 of 2015 Page 18 of 31 (arising out of SLP (Crl.) Nos. 6028-6029 of 2014)

Page 19

ground of misusing the order of bail after its grant is not made out.

As per the High Court, the order of grant of bail by the Session

Court itself was improper and that is the basis for cancelling the

order passed by the Session Court.  

19. Before  we  proceed  further,  we  would  like  to  discuss  the  law

relating  to  grant  of  anticipatory  bail  as  has  been  developed

through judicial interpretative process.  A judgment which needs

to be pointed out is a Constitution Bench Judgment of this Court

in the case of  Gurbaksh Singh Sibbia and Others  v. State of

Punjab1.  The Constitution Bench in this case emphasized that

provision of anticipatory bail enshrined in Section 438 of the Code

is  conceptualised  under  Article  21  of  the  Constitution  which

relates to personal liberty.  Therefore, such a provision calls for

liberal interpretation of Section 438 of the Code in light of Article

21 of the Constitution.  The Code explains that an anticipatory bail

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.   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

1 (1980) 2 SCC 565

Criminal Appeal Nos. 1134-1135 of 2015 Page 19 of 31 (arising out of SLP (Crl.) Nos. 6028-6029 of 2014)

Page 20

police,  the  latter  is  granted  in  anticipation  of  arrest  and  is

therefore,  effective  at  the  very  moment  of  arrest.   A direction

under  Section  438  is  therefore  intended  to  confer  conditional

immunity from the 'touch' or confinement contemplated by Section

46 of the Code.  The essence of this provision is brought out in

the following manner:

“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 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 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.”

Criminal Appeal Nos. 1134-1135 of 2015 Page 20 of 31 (arising out of SLP (Crl.) Nos. 6028-6029 of 2014)

Page 21

20. Though the Court observed that the principles which govern the

grant of ordinary bail may not furnish an exact parallel to the right

to anticipatory bail, still such principles have to be kept in mind,

namely, the object of bail which is to secure the attendance of the

accused  at  the  trial,  and  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.

Otherwise, bail is not to be withheld as a punishment.  The Court

has  also  to  consider  whether  there  is  any  possibility  of  the

accused tampering with  evidence or  influencing witnesses etc.

Once  these  tests  are  satisfied,  bail  should  be  granted  to  an

undertrial which is also important as viewed from another angle,

namely, 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.  Thus, grant or non-grant of

bail depends upon a variety of circumstances and the cumulative

effect thereof enters into judicial verdict.  The Court stresses that

any single circumstance cannot be treated as of universal validity

or  as  necessarily  justifying  the  grant  or  refusal  of  bail.   After

clarifying  this  position,  the  Court  discussed  the  inferences  of

anticipatory bail in the following manner:

Criminal Appeal Nos. 1134-1135 of 2015 Page 21 of 31 (arising out of SLP (Crl.) Nos. 6028-6029 of 2014)

Page 22

“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 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 : (1962) 3 SCR 622 : (1962) 1 Cri LJ 216, 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  purposes  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 conditions which the court may think fit to impose, in consideration

Criminal Appeal Nos. 1134-1135 of 2015 Page 22 of 31 (arising out of SLP (Crl.) Nos. 6028-6029 of 2014)

Page 23

of  the  assurance  that  if  arrested,  he  shall  be enlarged on bail.”

21. It is pertinent to note that while interpreting the expression “may, if

it  thinks fit”  occurring in Section 438(1) of the Code, the Court

pointed out that it  gives discretion to the Court to exercise the

power in a particular case or not, and once such a discretion is

there  merely  because  the  accused  is  charged  with  a  serious

offence may not  by itself  be the reason to refuse the grant  of

anticipatory bail if the circumstances are otherwise justified.  At

the same time, it is also the obligation of the applicant to make

out a case for grant of anticipatory bail.  But that would not mean

that  he  has  to  make  out  a  “special  case”.   The  Court  also

remarked that a wise exercise of judicial power inevitably takes

care of the evil consequences which are likely to flow out of its

intemperate use.

22. Another case to which we would like to refer is the judgment of a

Division  Bench  of  this  Court  in  the  case  of  Siddharam

Satlingappa Mhetre v. State of Maharashtra and Others2.  This

case lays down an exhaustive commentary of Section 438 of the

Code covering, in an erudite fashion, almost all the aspects and in

the  process  relies  upon  the  aforesaid  Constitution  Bench

2 (2011) 1 SCC 694

Criminal Appeal Nos. 1134-1135 of 2015 Page 23 of 31 (arising out of SLP (Crl.) Nos. 6028-6029 of 2014)

Page 24

judgment in  Gurbaksh Singh's case.  In the very first para, the

Court  highlighted  the  conflicting  interests  which  are  to  be

balanced  while  taking  a  decision  as  to  whether  bail  is  to  be

granted or not, as is clear from the following observations:

“1.  Leave granted.  This appeal involves issues of  great  public  importance  pertaining  to  the importance  of  individual's  personal  liberty  and the society's interest.  Society has a vital interest in grant or refusal of bail because every criminal offence is  the offence against  the  State.   The order  granting  or  refusing  bail  must  reflect perfect balance between the conflicting interests, namely,  sanctity  of  individual  liberty  and  the interest of the society.  The law of bails dovetails two  conflicting  interests,  namely,  on  the  one hand, the requirements of shielding society from the  hazards  of  those  committing  crimes  and potentiality of repeating the same crime while on bail and on the other hand, absolute adherence to  the  fundamental  principle  of  criminal jurisprudence  regarding  presumption  of innocence of an accused until he is found guilty and the sanctity of individual liberty.”

23. The principles which can be culled out, for the purposes of the

instant case, can be stated as under:

(i) The complaint filed against the accused needs to be thoroughly

examined, including the aspect whether the complainant has filed

a  false  or  frivolous  complaint  on  earlier  occasion.   The  court

should also examine the fact whether there is any family dispute

between the accused and the complainant and the complainant

must be clearly told that if the complaint is found to be false or

Criminal Appeal Nos. 1134-1135 of 2015 Page 24 of 31 (arising out of SLP (Crl.) Nos. 6028-6029 of 2014)

Page 25

frivolous,  then  strict  action  will  be  taken  against  him  in

accordance with law.  If the connivance between the complainant

and the investigating officer is established then action be taken

against the investigating officer in accordance with law.

(ii) The gravity of charge and the exact role of the accused must be

properly comprehended.  Before arrest, the arresting officer must

record  the  valid  reasons  which  have  led  to  the  arrest  of  the

accused in  the case diary.  In  exceptional  cases,  the reasons

could  be  recorded  immediately  after  the  arrest,  so  that  while

dealing with the bail application, the remarks and observations of

the arresting officer can also be properly evaluated by the court.

(iii) It  is  imperative  for  the  courts  to  carefully  and  with  meticulous

precision evaluate the facts of the case.  The discretion to grant

bail must be exercised on the basis of the available material and

the facts of the particular case.  In cases where the court is of the

considered view that the accused has joined the investigation and

he is fully cooperating with the investigating agency and is not

likely to abscond, in that event, custodial interrogation should be

avoided.  A great ignominy, humiliation and disgrace is attached

to arrest.  Arrest leads to many serious consequences not only for

the accused but for the entire family and at times for the entire

community.  Most people do not make any distinction between

Criminal Appeal Nos. 1134-1135 of 2015 Page 25 of 31 (arising out of SLP (Crl.) Nos. 6028-6029 of 2014)

Page 26

arrest at a pre-conviction stage or post-conviction stage.

(iv) There is  no justification for  reading into Section 438 CrPC the

limitations  mentioned in  Section  437  CrPC.   The  plentitude  of

Section 438 must be given its full play.  There is no requirement

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 CrPC to a dead letter.  A

person seeking anticipatory bail is still a free man entitled to the

presumption of innocence.  He is willing to submit to restraints

and conditions on his freedom, by the acceptance of conditions

which the court may deem fit to impose, in consideration of the

assurance that if arrested, he shall be enlarged on bail.

(v) The proper course of action on an application for anticipatory bail

ought to be that after evaluating the averments and accusations

available on the record if the court is inclined to grant anticipatory

bail then an interim bail be granted and notice be issued to the

Public Prosecutor.  After hearing the Public Prosecutor the court

may either reject the anticipatory bail application or confirm the

initial order of granting bail.  The court would certainly be entitled

to impose conditions for the grant of anticipatory bail.  The Public

Prosecutor or  the complainant would be at  liberty to move the

same  court  for  cancellation  or  modifying  the  conditions  of

Criminal Appeal Nos. 1134-1135 of 2015 Page 26 of 31 (arising out of SLP (Crl.) Nos. 6028-6029 of 2014)

Page 27

anticipatory  bail  at  any  time  if  liberty  granted  by  the  court  is

misused.   The  anticipatory  bail  granted  by  the  court  should

ordinarily be continued till the trial of the case.   

(vi) It is a settled legal position that the court which grants the bail

also  has  the  power  to  cancel  it.   The  discretion  of  grant  or

cancellation of bail can be exercised either at the instance of the

accused,  the  Public  Prosecutor  or  the  complainant,  on  finding

new material or circumstances at any point of time.   

(vii) 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.

(viii) 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.   

(ix) No inflexible guidelines or straitjacket formula can be provided for

grant or refusal of anticipatory bail because all circumstances and

situations of future cannot be clearly visualised for the grant or

Criminal Appeal Nos. 1134-1135 of 2015 Page 27 of 31 (arising out of SLP (Crl.) Nos. 6028-6029 of 2014)

Page 28

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.

(x) We shall also reproduce para 112 of the judgment wherein the

Court delineated the following factors and parameters that need

to be taken into consideration while dealing with anticipatory bail:

(a) The nature and gravity of the accusation and the exact role of the

accused must be properly comprehended before arrest is made;

(b) 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;

(c) The possibility of the applicant to flee from justice;

(d) The  possibility  of  the  accused's  likelihood  to  repeat  similar  or

other offences;

(e) Where the accusations have been made only with the object of

injuring or humiliating the applicant by arresting him or her;

(f) Impact of grant of anticipatory bail particularly in cases of large

magnitude affecting a very large number of people;

(g) 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 cases in which the

accused is implicated with the help of Sections 34 and 149 of the

Criminal Appeal Nos. 1134-1135 of 2015 Page 28 of 31 (arising out of SLP (Crl.) Nos. 6028-6029 of 2014)

Page 29

Penal Code, 1860 the court  should consider with even greater

care  and  caution,  because  overimplication  in  the  cases  is  a

matter of common knowledge and concern;

(h) While  considering  the  prayer  for  grant  of  anticipatory  bail,  a

balance  has  to  be  struck  between  two  factors,  namely,  no

prejudice should be caused to free, fair and full investigation, and

there  should  be  prevention  of  harassment,  humiliation  and

unjustified detention of the accused;

(i) The Court should consider reasonable apprehension of tampering

of the witness or apprehension of threat to the complainant;

(j) Frivolity in prosecution should always be considered and it is only

the element of genuineness that shall have to be considered in

the matter of grant of bail and in the event of there being some

doubt  as to the genuineness of  the prosecution,  in  the normal

course of events, the accused in entitled to an order of bail.

24. Having regard to the facts of this case which have already been

highlighted above, we feel that no purpose would be served in

compelling the appellant to go behind bars, as an undertrial, by

refusing the anticipatory bail in respect of alleged incident which

is 17 years old and for which the charge is framed only in the year

2014.  The investigation is complete and there is no allegation

Criminal Appeal Nos. 1134-1135 of 2015 Page 29 of 31 (arising out of SLP (Crl.) Nos. 6028-6029 of 2014)

Page 30

that the appellant may flee the course of justice.  The FIR was

registered and the trial commenced in the year 2001;  albeit with

the charge framed under Section 506(2) IPC, and during all these

periods, the appellant has participated in the proceedings.  There

is no allegation that during this period he had tried to influence the

witnesses.  In the aforesaid circumstances, even when there is a

serious charge levelled against the appellant, that by itself should

not be the reason to deny anticipatory bail  when the matter  is

examined keeping in view other factors enumerated above.   

25. The prosecutrix has moved an application in these proceedings

for perusing new evidence on the basis of which she claims that

the appellant has committed breach of conditions of anticipatory

bail  and regular bail.   It  is not  necessary for  us to go into the

allegations made in this application.  She would be at liberty to

make such an application before the trial court for cancellation of

bail.  We may clarify that we have not gone through the merits of

this application, and as and when such an application is made,

the trial court would be free to examine the same and pass the

order as the trial court deems fit in accordance with law.

26. Before we part, in order to balance the equities, we are of the

view that the trial  in this case may be expeditiously conducted

Criminal Appeal Nos. 1134-1135 of 2015 Page 30 of 31 (arising out of SLP (Crl.) Nos. 6028-6029 of 2014)

Page 31

and the trial court should endeavour to complete the same within

one year.

27. As a result, we set aside the impugned judgment and restore the

order dated 18.05.2013 of the learned Additional Sessions Judge

granting  anticipatory  bail  to  the  appellant  on  the  conditions

mentioned in the said order.  Appeals are allowed in the aforesaid

terms.   

.............................................J. (A.K. SIKRI)

.............................................J. (ROHINTON FALI NARIMAN)

NEW DELHI; SEPTEMBER 01, 2015.

Criminal Appeal Nos. 1134-1135 of 2015 Page 31 of 31 (arising out of SLP (Crl.) Nos. 6028-6029 of 2014)