REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOs. 525-526  OF 2012 (Arising out of SLP(Crl.) Nos.304-305 of 2012)

Jai Prakash Singh                                       … Appellant

Vs.

The State of Bihar & Anr. Etc.                                …  Respondents

J U D G M E N T

Dr. B.S. CHAUHAN, J.

1. Leave granted.

2. These  criminal  appeals  have  been  preferred  against  the  

judgments and orders dated 19.9.2011 and 25.10.2011 passed by the  

High Court  of  Judicature  at  Patna  in Crl.  Misc.  Nos..  28318  and  

33546 of 2011, by which the High Court has enlarged the respondents  

Rajesh  Kumar Singh @ Pappu Singh and Sanjay Kumar Singh @  

Mintu  Singh  on  anticipatory  bail  under  Section  438  of  Code  of  

Criminal Procedure, 1973 (hereinafter referred as `Cr.P.C.’)

3.     Facts and circumstances giving rise to these appeals are that :

A. On 5.6.2011, the appellant Jai Prakash Singh lodged an FIR of  

Laheria Sarai Case No. 304 of 2011 under Sections 302/34 of Indian  

Penal Code,  1860 (hereinafter referred as  `I.P.C.’),  alleging therein  

that  the  informant/complainant  and  his  elder  brother  Shiv Prakash  

Singh were  having  a  medicine  shop  for  the  last  2-3  years.   On  

5.6.2011  around  10.00  p.m.,  his  brother  closed  the  shop  and  

proceeded towards his house on his motorcycle. He was chased by the  

aforesaid  respondents  on  a  motorcycle  and  stopped.  They opened  

indiscriminate firing and thus, he died on the spot.  In the FIR, it was  

also alleged that the said respondents had threatened the complainant  

to kill him and his brother 10-15 days ago as there had been some old  

dispute of accounts between the parties.   

B.    As per the post-mortem report, the deceased received 5 bullet  

injuries on his person and he died because of the same.  The said  

respondents  had  applied  for  anticipatory  bail,  however,  their  

applications stood rejected by the learned Sessions Judge vide order  

dated 11.8.2011 observing that in the investigation, a strong motive  

had been found against the said respondents and there were certain  

2

affidavits of eye-witnesses to the effect that the said respondents were  

the assailants.

C. Aggrieved, the said respondents filed Miscellaneous Criminal  

Petitions  for  grant  of  anticipatory  bail  under  Section  438  Cr.P.C.  

before the Patna High Court.  The said applications have been allowed  

passing the impugned orders granting them anticipatory bail on the  

grounds  that  the  FIR  itself  made  it  evident  that  there  was  some  

previous dispute between the parties which led to a quarrel and the  

accused had fair antecedents.   

         Hence, these appeals.  

4. Shri Dvijendra Kumar Pandey, learned counsel appearing for  

the appellant, has submitted that the High Court committed grave error  

while  granting  anticipatory  bail  to  the  said  respondents  without  

considering the gravity of the offence and the manner in which the  

offence had been committed and without realising that the FIR had  

been lodged promptly within a period of two hours of the incident and  

both  the  said  accused  persons  had been named therein.  Thus,  the  

impugned judgments and orders are liable to be set aside.  

5. On  the  contrary,   Ms.  Kavita  Jha  and  Ms.  Prerna  Singh,  

learned counsel appearing for the said respondents and the State of  

3

Bihar, have opposed the appeals contending that the High Court has  

imposed very serious conditions while granting the anticipatory bail.  

The order does not require any interference at this stage.   The appeals  

have no merit and are liable to be dismissed.   

6. We have considered the rival submissions made by the learned  

counsel appearing for the parties and perused the record.   

7. The provisions of Section 438 Cr.P.C. lay down guidelines for  

considering the anticipatory bail application, which read as under:

“438. Direction for grant of bail to person apprehending  arrest.-(1) Where any person has reason to believe that  he  may  be  arrested  on  an  accusation  of  having  committed a non-bailable offence, he may apply to the  High Court or the Court of Session for a direction under  this section that in the event of such arrest, he shall be  released on bail; and that court may, after taking into  consideration, inter alia, the following factors, namely:-  

(i) The nature and gravity of the accusation;

(ii) The antecedents of the applicant including the fact as  to whether he has previously undergone imprisonment  on conviction by a court in respect  of any cognizable  offence;

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

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

4

8. In view of the above, it is mandatory on the part of the court to  

ensure  the  compliance  of  the  pre-requisite  conditions  for  grant  of  

anticipatory bail including the nature and gravity of the accusation.  

9.     Admittedly, the deceased had received several  gun shot injuries.  

According  to  the  post-mortem report,  the  following  injuries  were  

found on the person of the deceased:  

“A .  Abrasions: (1) 1 1/4" x1/4" 1"- right and enter  post of forehead (2) 1/4" x 1/4" 1/2 "x 1/4" and 1/2"  X 1/10" in the lower 1/2 of the left leg (3) 1/4 " x l/4"  right kneecap.  

B.   Fire Arm injuries (1) entry wound 1/4 dia with  inverted  contused  margins  and  abrasions.  Collar  placed  on  the  outer  aspect  of  the  right  arm  2"  proxical to elbow - passed thro' arms breaking the  bone into pieces and lacerating the to come out thro'  exit wound 1/3" x 1/9" with even in the middle and  inner portion of arm. Another entry wound, 1/5" in  dia  with  abrasion  collar,  inverted  margin  and  tattooing around (1-1/2 " x 1-1/2") was also present  1" distal to the preventing entry wound and come out  through the same exit wound.  

(2) Entry wound - 1/4 " dia with inverted contused  margin an  abrasion collar  in right anterior  axillary  line 5"  below nipple  -  right  8th  intercortal  space-  right lobe of liver mes entry- small intestine at one  place - came out through exit wound 1/3" in dia in  lower left iliac fosa in the axilary line with inverted  margin.  

(3)  Entry  wound  1/4"  dia  with  contused  inverted  margins and abrasion collar placed in the left iliac  fosa- color at one place- small intestine at one place-  

5

came  out  this  exit  would  ¾"  x  1/2"  on  right  abdominal  flank  with  everted  margin,  in  anterior  oscillary line 9" bellow nipple.  

(4) Entry would 1/3" in dia with contused inverted  margin and abrasion collar over upper and inner part  of left and soft tissue of the arm to came out through  the exit wound 1/3" in dia with everted margin on the  back of left arm 3" above (proximal) elbow.  

(5) Entry wound 1/4" in dia on the back of abdomen  4" outer to midline at T12 level, with inverted and  contused margins and abrasions collar mesentry large  intestine at one place exit through a wound 1/4" dia  with inverted margin in the hand.  

Along the  tracks,  the.  tissue  were  lacerated.  Fluid  blood red clots  were  seen inside abdominal cavity  about  1000  cc  in  volume.  Organs  appeared  pale.  Both sides  of the heart  were  partially full and the  urinary bladder  was  found full. Stomach contained  about 20 cc food without alcoholic smell. Skull and  brain showed nothing particular.  

Opinion Death resulted from hemorrhage and both  due to fire arm injuries mentioned above.”

10. The learned Sessions Judge did not consider it proper to grant  

anticipatory  bail,  rather  rejected  the  same  after  considering  the  

submissions made on behalf of the said accused persons observing that  

the court had perused the Case Diary, para 90 of which revealed a  

very strong motive.  There was material against the said accused in the  

case diary. The deceased had received multiple abrasions and 5 gun  

6

shot injuries,  thus,  it  was  not a  fit case  to  enlarge the accused on  

anticipatory bail.   

11. Admittedly, the FIR had been lodged promptly within a period  

of two hours from the time of incident at midnight.  Promptness in  

filing the FIR gives certain assurance of veracity of  the version given  

by the informant/complainant.   

12. The  FIR  in  criminal  case  is  a  vital  and  valuable  piece  of  

evidence though may not be substantive piece of evidence.  The object  

of  insisting  upon  prompt  lodging  of  the  FIR  in  respect  of  the  

commission of an offence is to obtain early information regarding the  

circumstances in which the crime was committed, the names of actual  

culprits and the part played by them as  well as  the names of eye-

witnesses present at the scene of occurrence.  If there is a delay in  

lodging the FIR, it looses the advantage of spontaneity, danger creeps  

in of  the  introduction of  coloured  version,  exaggerated  account  or  

concocted  story  as  a  result  of  large  number  of  

consultations/deliberations.  Undoubtedly,  the  promptness  in lodging  

the FIR is an assurance regarding truth of the informant’s version. A  

promptly  lodged  FIR  reflects  the  first  hand  account  of  what  has  

actually  happened,  and  who  was  responsible  for  the  offence  in  

7

question.  (Vide: Thulia Kali v. The State of Tamil Nadu, AIR 1973  

SC 501; State of Punjab v. Surja Ram, AIR 1995 SC 2413; Girish  

Yadav & Ors.  v.  State of M.P., (1996) 8 SCC 186; and  Takdir  

Samsuddin Sheikh v. State of Gujarat & Anr., AIR 2012 SC 37).  

13. There is no substantial difference between Sections 438 and  

439 Cr.P.C. so far as appreciation of the case as to whether or not a  

bail is to be granted, is concerned.  However, neither anticipatory bail  

nor regular bail can be granted as a matter of rule.  The anticipatory  

bail  being  an  extraordinary  privilege  should  be  granted  only  in  

exceptional cases.  The judicial discretion conferred upon the court has  

to be properly exercised after proper application of mind to decide  

whether it is a fit case for grant of anticipatory bail.

14. In State of M.P. & Anr. v. Ram Kishna Balothia & Anr.,  

AIR 1995 SC 1198, this Court considered the nature of the right of  

anticipatory bail and observed as under:    

“We find it difficult to accept the contention that   Section 438 of the Code of Criminal Procedure is   an integral part of Article 21.  In the first place,   there was no provision similar to Section 438 in   the  old  Criminal  Procedure  Code…..   Also   anticipatory bail cannot be granted as a matter of   right.  It is essentially a statutory right conferred   long  after  the  coming  into  force  of  the   Constitution.   It  cannot  be  considered  as  an   essential  ingredient  of  Article  21  of  the   

8

Constitution.  And its non-application to a certain   special category of offences cannot be considered   as violative of Article 21.”

15. While deciding the aforesaid cases, this Court referred to the  

41st Report of the Indian Law Commission dated 24th September, 1969  

recommending the introduction of a provision for grant of anticipatory  

bail wherein it has been observed that “power to grant anticipatory  

bail should be exercised in very exceptional cases”.  

16. Ms.  Kavita  Jha,  learned  counsel  appearing  for  the  

accused/respondents  has  vehemently advanced  the  arguments  

on the concept of life and liberty enshrined in Article 21 of the  

Constitution  of  India  placing  a  very  heavy  reliance  on  the  

observations made by this Court  in Siddharam Satlingappa  

Mhetre v. State of Maharashtra and Ors., AIR 2011 SC 312,  

and  submitted  that  unless  the  custodial  interrogation  is  

warranted  in  the  facts  and  circumstances  of  the  case,  not  

granting  anticipatory  bail  amounts  to  denial  of  the  rights  

conferred  upon  a  citizen/person  under  Article  21  of  the  

Constitution. We are afraid the law as referred to hereinabove  

does not support the case as canvassed by learned counsel for  

the accused-respondents.  More so,  the Constitution Bench of  

9

this Court in Kartar Singh v. State of Punjab, (1994) 3 SCC  

569, while summing up the law in para 368, inter-alia,  held as  

under:  

“Section  20(7)  of  the  TADA  Act  excluding  the   application of Section 438 of the Code of Criminal   Procedure in relation to any case under the Act   and the Rules made thereunder, cannot be said to   have deprived the personal liberty of a person as   enshrined in Article 21 of the Constitution.”  

(See  also:  Narcotics  Control Bureau  v.  Dilip Prahlad Namade  

(2004) 3 SCC 619).

Therefore,  we  are  not  impressed  by  the  submissions  so  

advanced by learned counsel for the accused-respondents.

17. This Court  in  Siddharam Satlingappa Mhetre  (supra)  after  

considering the earlier judgments of this Court laid down certain  

factors  and  parameters  to  be  considered  while  considering  

application for anticipatory bail  :  

“122. The following factors  and parameters  can  be taken into consideration while dealing with the   anticipatory bail: i. The nature and gravity of the accusation and the   exact  role  of  the  accused  must  be  properly   comprehended before arrest is made; ii. The antecedents of the applicant including the   fact  as  to  whether  the  accused  has  previously   undergone imprisonment on conviction by a Court   in respect of any cognizable offence;

1

iii.  The  possibility  of  the  applicant  to  flee  from  justice; iv.  The possibility  of  the  accused's  likelihood to   repeat similar or the other offences. v.  Where  the  accusations  have  been  made  only   with  the  object  of  injuring  or  humiliating  the   applicant by arresting him or her. vi. Impact of grant of anticipatory bail particularly   in cases of large magnitude affecting a very large   number of people. vii. The courts must evaluate the entire available   material  against  the accused very  carefully.  The   court must also clearly comprehend the exact role   of  the  accused  in  the  case.  The  cases  in  which   accused is implicated with the help of sections 34   and  149  of  the  Indian  Penal  Code,  the  court   should  consider  with  even  greater  care  and   caution because over-implication in the cases is a   matter of common knowledge and concern; viii.  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 the free,  fair and full  investigation   and  there  should  be  prevention  of  harassment,   humiliation  and  unjustified  detention  of  the   accused; ix. The court to consider reasonable apprehension   of  tampering  of  the  witness  or  apprehension  of   threat to the complainant; x.  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 is entitled to an order of bail.

123.  The arrest  should be the last  option and it   should  be  restricted  to  those  exceptional  cases   where arresting the accused is imperative in the   facts and circumstances of that case.

1

124. The court must carefully examine the entire   available record and particularly the allegations   which have been directly attributed to the accused   and these  allegations  are  corroborated  by other   material and circumstances on record.”

18. Parameters for grant of anticipatory bail in a serious offence  

are required to be satisfied and further while granting such relief, the  

court  must  record  the  reasons  therefore.   Anticipatory bail  can  be  

granted only in exceptional circumstances where the court is prima  

facie of the view that the applicant has falsely been enroped in the  

crime and would not misuse his liberty. (See: D.K. Ganesh Babu v.  

P.T. Manokaran & Ors., (2007) 4 SCC 434; State of Maharashtra  

& Anr. v. Mohd. Sajid Husain Mohd. S. Husain & Ors.,  (2008) 1  

SCC 213; and Union of India v. Padam Narain Aggarwal & Ors.,  

(2008) 13 SCC 305).  

19. The case at hand, if considered in the light of aforesaid settled  

legal proposition, we reach an inescapable conclusion that the High  

Court did not apply any of the aforesaid parameters, rather dealt with a  

very serious matter in a most casual and cavalier manner and showed  

undeserving and unwarranted sympathy towards the accused.   

1

20. The High Court erred in not considering the case in correct  

perspective and allowed the said applications on the grounds that in  

the FIR some old disputes had been referred to and the accused had  

fair  antecedents.   The  relevant  part  of  the  High  Court  judgment  

impugned before us reads as under:

“Considering that the only allegation in the First  Information Report  is  that  there  was previously  some  dispute  between  the  deceased  and  the  petitioner and they had quarrelled on account of  the same, let the petitioner above named, who has  fair  antecedents,  be  released  on  anticipatory  bail……..”

21. In  the  facts  and  circumstances  of  this  case,  we  are  of  the  

considered opinion that it was not a fit case for grant of anticipatory  

bail.   The  High  Court  ought  to  have  exercised  its  extraordinary  

jurisdiction following the parameters laid down by this Court in above  

referred to judicial pronouncements, considering the nature and gravity  

of  the offence and as  the FIR had been lodged spontaneously,  its  

veracity is reliable.  The High Court has very lightly brushed aside the  

fact that FIR had been lodged spontaneously and further did not record  

any reason as  how the pre-requisite  conditions incorporated  in the  

statutory provision itself stood fulfilled. Nor did the court consider as  

to whether custodial interrogation was required.  

1

The  court  may  not  exercise  its  discretion  in  derogation  of  

established principles of law, rather it has to be in strict adherence to  

them. Discretion has to be guided by law; duly governed by rule and  

cannot be arbitrary, fanciful or  vague.  The court must not yield to  

spasmodic sentiment to unregulated benevolence. The order dehors the  

grounds   provided in Section 438  Cr.P.C.  itself  suffers  from non-

application of mind and therefore, cannot be sustained in the eyes of  

law.   

22. The  impugned  judgments  and  orders  dated  19.9.2011  and  

25.10.2011 passed by the High Court of Judicature at Patna in Crl.  

Misc.  Nos.28318  and  33546  of  2011  are,  thus,   set  aside.   The  

anticipatory  bail  granted  to  the  said  respondents  is  cancelled.  

Needless to say that in case the said respondents apply for regular bail,  

the same would be  considered  in accordance  with law.   With the  

aforesaid observations, appeals stand disposed of.

                                                                  .................……………………..J.

                                       (Dr. B.S. CHAUHAN)

                   ................……………………..J.                     (JAGDISH SINGH KHEHAR)

1

New Delhi, March 14, 2012

1