REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CRIMINAL) NOS.7281­7282/2017

Sushila Aggarwal and others …Petitioners  

Versus

State (NCT of Delhi) and another …Respondents

J U D G M E N T

M.R. SHAH, J.

In the light of the conflicting views of the different Benches

of varying strength, more particularly in the cases of  Shri

Gurbaksh Singh Sibbia and others v. State of Punjab (1980) 2 SCC

565; Siddharam Satlingappa Mhetre v. State of Maharashtra

(2011) 1 SCC 694; Bhadresh Bipinbhai Sheth v. State of Gujarat

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(2016)  1  SCC 152  on one side and  in  the cases of  Salauddin

Abdulsamad Shaikh v. State of Maharashtra (1996) 1 SCC 667,

subsequently followed  in the case  of  K.L.  Verma v.  State  and

another (1998) 9 SCC 348; Sunita Devi v. State of Bihar (2005) 1

SCC 608; Nirmal Jeet Kaur v.  State of M.P.  (2004) 7 SCC 558;

HDFC Bank Limited v. J.J. Mannan (2010) 1 SCC 679; and Satpal

Singh v. State of Punjab (2018) 4 SCC 303, the following questions

are referred for consideration by a larger Bench:

“(1) Whether the protection granted to a person under Section 438 Cr.P.C. should be limited to a fixed period so as to enable the  person to surrender  before the  Trial Court and seek regular bail.

(2) Whether the life of an anticipatory bail should end at the time and stage when the accused is summoned by the court.”  

2. Shri Harin P. Raval, learned Senior Advocate appearing as

Amicus Curiae relying upon the decision of this Court in the case

of Balchand Jain v. State of M.P. (1976) 4 SCC 572 has submitted

that though the expression “anticipatory bail” has not been

defined in the Code, as observed by this Court in the aforesaid

decision, “anticipatory bail” means “bail in anticipation of arrest”.

It is submitted that in the  aforesaid  decision, this  Court  has

further observed that the expression “anticipatory bail” is a

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misnomer inasmuch as it is not as if bail is presently granted by

the Court in anticipation of arrest.   It is submitted that when a

competent court grants “anticipatory bail”, it makes an order that

in the event of arrest, a person shall be released on bail.   It is

submitted that there is no question of release on bail unless a

person  is  arrested and,  therefore, it is  only  on arrest  that  the

order granting “anticipatory bail” becomes operative.

2.1. Shri Raval, learned Amicus Curiae has taken us to the

historical perspective on the inclusion of Section 438 of the Cr.

P.C.   It is submitted that  on  the recommendation of the  Law

Commission  of India in its  41st  Report  dated  24.09.1969, the

Parliament introduced a new provision in the form of

“anticipatory bail” under Section 438 of the Cr.P.C.   It is

submitted that the Law Commission of  India  in its 41st  Report

stated in paragraph 39.9 the justification for power to grant

“anticipatory bail”.   It is submitted that as per the Law

Commission 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.  It

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is submitted that the Law Commission further observed that 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 to be no justification to require him to

first submit to custody, remain in prison for some days, and then

apply for bail.

2.2 It is further submitted that power to grant “anticipatory bail”

vests only in the High Courts or the Courts of Sessions.  It is

submitted that the “anticipatory bail” can be applied at different

stages.  It is submitted that even in a case where no FIR is lodged

and a person is apprehending his arrest in case the FIR is lodged,

in that case, he can apply for “anticipatory bail” and after notice

to the Public Prosecutor the Court can grant “anticipatory bail”.

It is submitted that even in a case where the FIR is lodged but the

investigation has not yet begun, i.e., pre investigation stage, the

“anticipatory bail” can be applied.   It is submitted that

“anticipatory bail” can also be applied at post investigation stage.

It is submitted that after exercising the discretion judiciously, the

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High Court or the Sessions Court grants “anticipatory bail” and

that too after hearing the Public Prosecutor.  It is submitted that

therefore once the bail is granted in anticipation of  the arrest,

there is no reason to limit the same till the summon is issued by

the Court and/or there is no reason to limit the period of bail in

anticipation granted.  

2.3 Shri Harin P. Raval, learned Senior Advocate appearing as

Amicus Curiae has further submitted that in the case of

Gurbaksh Singh Sibbia (supra), a Constitution Bench of this Court

has observed and held that the facility which Section 438, Cr.

P.C. affords is generally referred to as “anticipatory bail”, an

expression which was used by the Law Commission in  its 41st

Report.  Neither the section nor its marginal note so describes it

but, the expression “anticipatory bail” is  a convenient mode of

conveying that it  is possible to apply for bail  in anticipation of

arrest.   It is submitted that any order of bail can, of course, be

effective  only from the  date  of  arrest  because  to  grant  bail  as

stated  in Wharton’s Law Lexicon,  is to “set at  liberty a person

arrested or imprisoned, on security being taken for his

appearance”.   It is submitted that thus, bail is basically release

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from restraint, more particularly, release from the custody of the

police.   It is submitted that the act of 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.  Taking

a  surety,  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

the offence or offences of which he is charged and for which he

was arrested.   It is  submitted  that 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.  It is submitted that in other words, unlike a post­arrest

order of bail, it is a pre­arrest 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.

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2.4 Shri Harin P. Raval, learned Senior Advocate appearing as

Amicus Curiae has further submitted that however the core

questions before this Court are, (a) what is the life or currency of

an anticipatory bail once the same has been granted by the

competent court?; (b) once an order granting anticipatory bail has

been passed, whether the said anticipatory bail only survives till

the stage of filing of charge sheet/challan/final report or whether

it subsists during the entire duration of trial?.   It is further

submitted by Shri  Raval that  one another  question may arise,

namely, in a case where if new incriminating materials are found

during the course of investigation, whether they could be relied

on by the  Court to  cancel  anticipatory bail  which has already

been granted?

2.5 It is submitted that, as such, the aforesaid questions are not

res integra  in view of the decision of the Constitution Bench of

this Court  in the case of  Gurbaksh Singh Sibbia  (supra).   It is

submitted that in the case of  Gurbaksh Singh Sibbia  (supra),  a

Constitution Bench of this Court has held that there is no limit to

the currency of an order of anticipatory bail.  The Court is vested

with absolute discretion to direct the duration of the trial which

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can vary from a few weeks to even such duration until  charge

sheet  has  been  filed and which may also  extend to the  entire

duration of the trial.   It is submitted that it is further observed

that the sole consideration must be with a view to balance the

two competing interests, viz., protecting the liberty of the accused

and the sovereign power of the police to conduct a fair

investigation.   Shri  Raval, learned  Amicus  Curiae  has  heavily

relied upon the observations made by the Constitution Bench of

this Court in paragraphs 42 & 43 of  Gurbaksh Singh Sibbia

(supra).

2.6 It is further submitted by Shri Raval that in the subsequent

decision of this Court in the case of  Siddharam Satlingappa

Mhetre (supra), this Court has taken the view that the order of

anticipatory bail once granted ordinarily subsists during the

entire  duration of the trial.   It is submitted that it is further

observed that by that the power of the Sessions Court or that of

the High Court to re­visit its order granting anticipatory bail is

curtailed, in case circumstances exist or  new  exigencies arise

which merit interference.   Heavy reliance is placed upon

observations made by this Court in the case of  Siddharam

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Satlingappa Mhetre  (supra)  in paragraphs 94, 95, 98, 100, 122

and 123.

It is submitted by Shri  Raval  that however,  the  judgment

rendered in  Siddharam Satlingappa Mhetre (supra) particularly in

paragraphs 95, 108, 122 and 123 does not take into

consideration the observations of the Constitution Bench in

Gurbaksh  Singh  Sibbia (supra)  in  paragraphs  42  &  43,  which

clearly cull out that the discretion of the Sessions Court or a High

Court is wide enough to limit as well as specify the duration of

the anticipatory bail taking into account all relevant factors which

may persuade the discretion of the Court.   It is submitted that

Siddharam Satlingappa Mhetre (supra) proceeded to hold that the

anticipatory bail shall subsists during the entire currency of the

trial and specifically rejected the  notion that anticipatory  bail

could be for a limited time as well,  on the expiry of which the

accused must surrender and apply for a regular bail.   It is

submitted that in view of the conflicting approach, the decision

rendered in the  case  of  Siddharam Satlingappa  Mhetre (supra)

particularly the observations made in paragraphs 95, 108, 122 &

123 need to be revisited.

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2.7 It is further submitted by Shri Raval, learned Amicus Curiae

that the discretion of the Sessions Court and the High Court is

absolute,  and no limitations whatsoever have been imposed by

the legislature.   It is submitted that the discretion therefore can

be exercised to even limit the duration of the anticipatory bail, in

order to ensure that the accused also cooperates with the

investigation, or that relevant discoveries to secure incriminating

material could be made under Section 27 of the Evidence Act, or

in view of new incriminating circumstances which establish

complicity of the accused.  It is submitted that therefore the view

taken by this Court in Siddharam Satlingappa Mhetre (supra) that

the anticipatory bail to subsist for the entire duration of the trial,

curtails the discretion of the Sessions Court or the High Court to

limit such duration of anticipatory bail.  It is submitted that such

an interpretation is in absolute contravention of the law declared

by the Constitution Bench in the case of  Gurbaksh Singh Sibia

(supra).

2.8 Making the above submissions and relying upon the

aforesaid decisions of the Constitution Bench of this Court, Shri

Raval, learned Amicus Curiae has concluded as under:

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1) that the power vested by the Parliament on superior

criminal courts in the order of hierarchy, such as Sessions

Court  and High  Court, is  a  power  entailing  conferment  of

absolute discretion in deciding  whether an application for

anticipatory bail may be allowed or rejected, and also inheres

in this discretion, the additional power to limit the duration of

anticipatory bail to any point in time, or to any stage as the

Courts may deem fit in the facts and circumstances of the

case, and in view of all the attending circumstances;

2) that the order granting anticipatory bail will not

interdict the power of the  investigating agency to  continue

investigation of the case or would prevent the investigating

agency to ask for and be granted, respectively, Police Custody

of the accused for the purposes of the investigation and

where the investigating officer  feels that the custody of the

accused is necessary.   Further since police custody can be

granted only in the first 14 days of the arrest, the decision to

restrict the duration of the bail would balance the twin

competing interest, viz., the individual liberty and the

sovereign power of the police to investigate the case;

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3) that the life of the order granting anticipatory bail can

be restricted, which may be at a stage till either the FIR is

filed in cases where such order is granted on an reasonable

apprehension  of  being  arrested in relation to  a cognizable

case, where the FIR or Complaint  is yet not filed;  in cases

where  FIR  or complaint is filed, it  may  be restricted to  a

period of ten days after arrest (since it leaves a period of 4

days for the investigation agency to get police custody, within

the  outer limit  of  14 days)  and  then  leave it  open  for the

accused so released on anticipatory bail to apply for regular

bail  under  Section  437/439; alternatively such order  may

endure till filing of charge sheet which has to be filed within

90 days of the arrest.  It may be remembered here that non­

filing of  charge sheet  within 90 days of  arrest  entitles the

accused, statutory bail or default bail, as a matter of right, in

view of express stipulation contained in Section 167 of the

Code of Criminal Procedure, 1973.   Also, in case where an

accused is released on anticipatory bail, the investigation

authorities  may  not  be  subjected to  adherence to filing  of

charge sheet within 90 days as there would be no

consequence as the accused is already enlarged on bail.   It

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may therefore be safer to adhere to the earlier practice

evolved by judicial precedents to restrict the operation of life

of the order granting anticipatory bail for 10 days of arrest,

leaving it open to the accused to apply for regular bail under

Section 437/439 of the Code and equally leaving it open for

the Court to consider such an application without in any way

being influenced by the fact of grant of anticipatory bail, as at

that stage the considerations are at a very early stage where

the investigation itself may be in nascent stage or the

materials are yet to be gathered and the accused is yet to be

interrogated; and

4) that anticipatory bail once granted can also be

cancelled, either in appeal to a superior forum on challenge

being made or by the same court on establishment of well

accepted and legally enshrined principles relating to

cancellation of bail.

3. Shri K.V. Vishwanathan, learned Senior Advocate who

was also requested  to  assist  us  as  an Amicus Curiae  has

submitted that  the exercise of  power under Section 438  is

exactly like the exercise of power under Sections 437 and 439

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of the Cr.P.C.   It is submitted therefore, the pre­arrest bail

granted in anticipation of arrest under Section 438 ought to

operate like any other order granting  bail till an order  of

conviction or till an affirmative direction is passed under

Section 439(2) of the Cr.P.C.   It is submitted that therefore

the law laid down by this Court  in the cases of  Gurbaksh

Singh Sibbia (supra)  and  Siddharam Satlingappa Mhetre

(supra)  lay down the correct  law.  It is submitted that the

exceptions carved out in  Gurbaksh Singh Sibbia (supra)

particularly in paras 19, 42 and 43 are well within the

scheme of the Code.

3.1 It is further submitted by Shri Vishwanathan, learned

Amicus Curiae that the power of arrest of the police is under

Section 41 of the Cr.P.C.  It is submitted that this Section has

two essential parts.   One, relating to offences in which the

maximum punishment can extend to imprisonment for seven

years.  Second, relating  to  offences  in  which  the  maximum

punishment can extent to imprisonment above seven years or

death penalty.  It is submitted that though they have different

conditions and thresholds,  in both cases it is clear  from a

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bare reading of the section that the power of arrest cannot be

exercised in every FIR that is registered under Section 154

Cr.P.C.   It is submitted that this power is circumscribed by

the conditions laid down in this Section.   Moreover, this

principle that the power of arrest is not required to be

exercised in every case was recognised in the cases of

Joginder Kumar v. State of U.P. (1994) 4 SCC 260 (para 20);

Lalitha Kumari v.  State of  U.P. (2014)  2 SCC 1  (paras 107­

108); and Arnesh Kumar v. State of Bihar (2014) 8 SCC 273

(paras 5 and 6).  It is submitted that, in fact, this Court in the

case of  M.C. Abraham v. State of Maharashtra (2003) 2 SCC

649  (para 15)  has  held  that it  was not  mandatory  for the

police to arrest a person only because his/her anticipatory

bail had been rejected.

3.2 It is further submitted by Shri Vishwanathan, learned

Amicus Curiae that the power of arrest is then further

circumscribed by Section 438 Cr.P.C.  It is submitted that as

recognized by the Law Commission, there are cases where the

power of arrest is not required or allowed to be exercised.  It

is  submitted  that  exercising power of  arrest in such cases

15

would be a grave violation of a person’s right and liberty.  It is

submitted that such exercise of power would amount to

misuse of Section 41.   It is submitted that the check on the

power of arrest and custody provided by Sections 437 or 439

is limited as the check is only post facto.  It is submitted that

by then the person arrested has already suffered the trauma

and humiliation of arrest.    

3.3 It is further submitted that to safeguard this situation,

Section 438 was introduced so as to provide for judicial

intervention in  necessary  cases.   It is submitted that this

judicial intervention is to ensure that the power of arrest is

regulated under the scrutiny of the courts.   It is submitted

that to strike a further balance between the power of arrest

and the rights  of the  accused, this  power  was  specifically

given to the Court of Session and the High Court so as to

ensure that this judicial intervention is done at the

supervisory level and not at the magisterial level.   It is

submitted that it is in this light that the two questions raised

in the present reference need to be addressed.

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3.4 Taking us to the recommendations in the 41st Report of

the Law Commission and the observations made in the

Report of the Committee on Reforms of the Criminal Justice

system, headed by Dr. Justice V.S. Malimath, it is submitted

by Shri  Vishwanathan that  Section 438  is  a check on the

power of arrest of the police.  It is submitted that as stated in

the  above  Law Commission Report, it is  a  check  not  only

against false cases, but also in cases where the need to arrest

does not arise.

3.5 It is further submitted that even otherwise a bare

reading  of the  Section  shows  that there is  nothing in the

language of the  Section which goes to  show that the  pre­

arrest bail granted under Section 438 has to be time­bound.

It is submitted that the position is the same as in Sections

437 and 439.  It is submitted that at this stage Section 438(3)

is relevant to be taken  into consideration.  It is  submitted

that there are two very important aspects in Section 438(3)

Cr.P.C. which are relevant to be considered to understand the

scheme of the Code, viz., (a) a person in whose favour a pre­

arrest bail order has been made under Section 438 has first

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to be arrested. Such a person is then released on bail on the

basis of the pre­arrest bail order. For such release the person

has to comply with the requirement of Section 441 of giving a

bond or surety; and (b) where the magistrate taking

cognizance under Section 204 is of the view that a warrant is

required to be issued at the first instance, such magistrate is

only empowered to issue only a bailable warrant and not a

non­bailable warrant.   This curtailment of power of the

magistrate clearly shows the intent of the legislature that a

person who has been granted bail under Section 438 ought

not to be arrested at the stage of cognizance because of the

said pre­arrest bail order.   It is submitted that in light of this

express provision,  no other interpretation  is  possible to be

given to  the said section.   It is  submitted  that  the second

question referred herein is squarely covered by this sub­

section.

3.6 It is further submitted by Shri Vishwanathan, learned

Amicus Curiae that the order passed under Section 438,

which is in the nature of a pre­arrest bail order, is however

subject to the power granted to the Court of Session and the

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High Court under Section 439(2), Cr.P.C., which gives power

to the Court of Session or the High Court to direct the arrest

of the accused at any time.  It is submitted that this ensures

that through  judicial intervention  the  balance  between  the

two competing principles can again be revisited if  the need

arises.  It is submitted that the only difference is  that the

power of arrest in these cases is exercised only after judicial

scrutiny.  It is submitted that in any case and as observed by

this Court in Gurbaksh Singh Sibbia (supra), the orders once

passed under Section 438 will continue till the trial unless in

exercise of judicial discretion the Sessions Court or the High

Court limits the same, looking to the facts and circumstances

of the case and the stages at which the power under Section

438 Cr.P.C. is exercised.   It is submitted that the Code

presupposes that the order passed under Sections 438 or 439

are not or cannot be temporary time bound.  It is submitted

that a person in whose favour an order of pre­arrest bail is

passed can  be taken into custody thereafter only  when  a

specific direction is passed under Section 439(2) of the Code.

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3.7 Shri Vishwanathan, learned Amicus Curiae, while

making the aforesaid submissions and relying upon the

aforesaid decisions of this Court, has concluded that the pre­

arrest bail granted under Section 438 of the Code is exactly

like the orders of bail passed under Sections 437 and 439 of

the Code; the Code does not contemplate any power in the

hands of the Courts to pass time­bound orders under Section

438  for good reason; on the  other  hand, the investigating

agency can approach the Court under Section 439(2) and in

the event of the police making out a case, the Court has all

the powers to direct the accused to be taken into custody.

4. Shri Tushar Mehta, learned Solicitor General of India

has heavily relied upon paras 42 and 43 of  Gurbaksh Singh

Sibbia (supra) and has submitted that as observed and held

by the Constitution Bench of this Court that the Court can in

a given case and  for  justifiable  reasons  limit the period of

anticipatory bail.  It is submitted that this Court in the case

of  

Siddharam Satlingappa Mhetre (supra)  has misread the

judgment in  Gurbaksh Singh Sibbia (supra)  to a limited

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extent.   It is submitted that to the extent  Siddharam

Satlingappa Mhetre  (supra)  states that “in view of the clear

declaration of the law by the Constitution Bench, the life of

the order under Section 438 Cr.P.C. granting bail cannot be

curtailed”, may not be correct law in light of the observations

made in  para  42  by the  Constitution  Bench in  Gurbaksh

Singh Sibbia  (supra).   It is submitted that the Constitution

Bench in Gurbaksh Singh Sibbia (supra) has not categorically

barred anticipatory bail order for limited time period, and at

the same time, merely stated that “normal rule” should be not

to  limit the time period.  It is  submitted that at the same

time, the  decision  of this  Court in the case  of  Salauddin

Abdulsamad Shaikh (supra), to the extent it states that the

order of the anticipatory bail has to be necessarily limited in

time frame is against the decision of the Constitution Bench

in  Gurbaksh  Singh  Sibbia (supra),  which  specifically states

that the “normal rule” to not limit the order of anticipatory

bail.  It is submitted that therefore the extreme views on both

side in Siddharam Satlingappa Mhetre (supra) and Salauddin

Abdulsamad  Shaikh (supra), to that limited  extent,  do  not

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consider the observations in  Gurbaksh Singh Sibbia (supra),

in the correct light.   It is submitted that in a case,  with

justifiable reasons, to be recorded in writing, indicating

reasons to deviate  from the “normal rule”, the anticipatory

bail can be granted for a limited time period, the life of which,

would extinguish accordingly.

4.1 It is further submitted by Shri Tushar Mehta, learned

Solicitor General of India that so far as the second reference,

namely, whether the life of an anticipatory bail should end at

the time and stage when the accused is summoned by the

court  is  concerned, it is  submitted that there cannot be a

straightjacket formula.  It is submitted that in a case wherein

the anticipatory bail is granted for a limited time period, the

life would extinguish accordingly.   It is submitted that in a

case wherein the anticipatory bail is granted without

conditions, the life  may  terminate  upon  the  circumstances

warranting cancellation of such bail or such interference.   It

is submitted that the statute does not contemplate an

automatic cancellation upon filing of charge sheet and

therefore the judgment  of this  Court in the  case  of  HDFC

22

Bank Limited (supra), to that extent, may not lay down the

correct law.  It  is submitted that, at the same time, the

Hon’ble Courts have deprecated the practice of blanket orders

of bail/anticipatory bail.   It is submitted that there are

eventualities arising in every case may be different and

therefore  are required to  be  dealt  with  accordingly, in the

facts and circumstances of each case.   It is submitted that

even  while granting the anticipatory  bail, the right of the

investigating agency to seek custodial interrogation cannot be

hampered mechanically.

5. Relying upon the decisions of this Court in the cases of

HDFC Bank Ltd. (supra)  and  Satpal Singh (supra), it is

submitted by Shri Vikramjit Banerjee, learned Additional

Solicitor General of India that as held by this Court in the

aforesaid decisions, the purpose of Section 438 is providing

protection only during the process of investigation and the

accused should seek regular bail  upon submission  of the

charge sheet against him from the court where entire

material is placed.   It is submitted that in any case grant of

the pre­arrest bail under Section 438 Cr.P.C. shall not affect

23

the right of the investigating agency to seek custodial

interrogation and in conducting further investigation.

5.1 It is further submitted by Shri Banerjee, learned ASG

that  as  held  by this  Court in the case  of  Uday  Mohanlal

Acharya v. State of Maharashtra (2001) 5 SCC 453, that even

when accused is found to be on bail at the stage of committal

proceedings, the committing Magistrate has the power to

cancel the bail and commit him to custody, if he considers it

necessary to do so.  It is submitted that as observed and held

by this Court in the aforesaid decisions that an interpretation

that an order of protection from arrest under Section 438 will

remain operational till the end of the trial will effectively make

Section 209 (b) of Cr.P.C. otiose.

5.2 At the end, Shri Banerjee, learned ASG has submitted

that there should necessarily be conditions imposed in

granting a pre­arrest bail order and it cannot be a blanket

order; in terms of the Cr.P.C. under Section 209(b) and

Section 240(2), the accused can be remanded to custody by

the Magistrate during the stage of inquiry, if he considers it

necessary to do so at the stage of the submission of the final

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report/ charge sheet or committal proceedings.   It is

submitted that it is imperative therefore that if the accused

takes pre­arrest bail during the earlier state of criminal

investigation, the power of the Magistrate under the said

provisions of Cr.P.C. should be maintained including the

power of the Magistrate to send the accused to the custody.

6. Shri C.S.N. Mohan Rao, learned Advocate appearing on

behalf of respondent no.2 has vehemently submitted that the

Constitution Bench judgment in  Gurbaksh Singh Sibbia

(supra) has dealt with various aspects of anticipatory bail and

preserved the discretionary power granted by the legislature

on the courts while considering application for anticipatory

bail.  It is submitted that the Constitution Bench has refused

to impose any limitation or conditions, which are not imposed

by the Parliament.

6.1 It is further submitted by the learned Counsel

appearing on behalf of respondent no.2 that the decision of

the Constitution Bench regarding duration of anticipatory

bail is not called in question by any judgment.   It is

submitted that there is a clear conflict regarding the duration

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of anticipatory bail as enunciated by the Constitution Bench

and the order in  Salauddin Abdulsamad Shaikh (supra),

which was followed in number of subsequent judgments.  It is

submitted that the decision of this Court in  Salauddin

Abdulsamad Shaikh  (supra)  and subsequent judgments

following  Salauddin Abdulsamad Shaikh  (supra)  are all  per

incuriam.

6.2 It is further submitted by the learned Counsel

appearing on behalf of respondent no.2 that as a normal rule,

it is not required to limit the duration of anticipatory bail.  It

is submitted that however, court while granting anticipatory

bail may, keeping in view the peculiar facts and

circumstances of the case, limit the duration of anticipatory

bail.   It is submitted that the life of anticipatory bail would

not end on filing of charge sheet.   

6.3 It is further submitted by the learned counsel

appearing on behalf of respondent no.2 that both the

questions of law framed for consideration by the larger Bench

does not arise for consideration.   It is submitted that

considering the elaborate reasons given by the Constitution

26

Bench in not putting any fetters or limitations on the

discretionary power of a court to grant anticipatory bail and

as there is no ambiguity in the judgment of the Constitution

Bench, this Court may reiterate the judgment of the

Constitution Bench in Gurbaksh Singh Sibbia (supra).

7. We have heard the learned counsel for the respective

parties at length.

In the light of the conflicting views of the different Benches

of varying strength, the following questions are referred for

consideration by a larger Bench:

“(1) Whether the  protection granted  to  a  person under  Section  438  Cr.P.C. should be limited to a fixed period so as to enable the person to surrender before the Trial Court and seek regular bail.

(2) Whether the life of an anticipatory bail should end at the time and stage when the accused is summoned by the court.”  

7.1 At the outset, it is required to be noted that as such

the expression “anticipatory bail” has not been defined in the

Code.  As observed by this Court in the case of Balchand Jain

(supra), “anticipatory bail” means “bail in anticipation of

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arrest”.   As held by this Court, the expression “anticipatory

bail” is a misnomer inasmuch as it is not as if bail is

presently granted by the Court in anticipation of arrest.   An

application for “anticipatory bail” in anticipation of arrest

could be moved by the accused at a stage before an FIR is

filed or at a stage when FIR is registered but the charge sheet

has not been filed and the investigation is in progress or at a

stage  after the investigation  is  concluded.  Power to  grant

“anticipatory bail” under Section 438 of the Cr.P.C. vests only

with the  Court  of  Sessions  or the  High Court.  Therefore,

ultimately it is for the concerned court to consider the

application for “anticipatory bail” and while granting the

“anticipatory bail” it is ultimately for the concerned court to

impose conditions including the limited period of

“anticipatory  bail”, depends  upon the stages  at  which the

application for anticipatory bail is moved.  A person in whose

favour a pre­arrest bail order is made under Section 438 of

the Cr.P.C. has to be arrested.   However, once there  is an

order of pre­arrest bail/anticipatory bail, as and when he is

arrested he has to be released on bail.  Otherwise, there is no

distinction or difference between the pre­arrest bail order

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under Section 438 and the bail order under Section 437 &

439 of the Cr.P.C.  The only difference between the pre­arrest

bail order under Section 438 and the bail order under

Sections 437 and 439 is the stages at which the bail order is

passed.   The bail order under Section 438 of the Cr.P.C. is

prior to his arrest and in anticipation of his arrest and the

order of bail under Sections 437 and 439 is after a person is

arrested.  A bare reading of Section 438 of the Cr.P.C. shows

that there  is nothing in the  language of the Section which

goes to show that the pre­arrest bail granted under Section

438 has to be time bound. The position is the same as in

Section 437 and Section 439 of the Cr.P.C.

7.2 While considering the issues referred to a larger Bench,

referred to hereinabove, the decision of the Constitution

Bench of this Court in  Gurbaksh Singh Sibbia (supra)  is

required to be referred to and considered in detail.   The

matter before the Constitution Bench in the case of

Gurbaksh Singh Sibbia (supra) was arising out of the decision

of the Full  Bench of the Punjab and Haryana High Court.

The High Court rejected the application for bail after

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summarising, what according to it was the true legal position,

thus,  

“(1) The power under Section 438, Criminal Procedure Code, is of an extraordinary character and must be exercised sparingly in 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.

(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

30

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.”

7.3 After considering the scheme of “anticipatory bail”

under Section 438, Cr.P.C. and while not agreeing with the

Full Bench, this Court has observed and held as under:

“12. …..By any known canon of construction, words of width 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 the right 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 non­bailable cases and Section 439 which deals with  the  “special  powers” of the  High Court and the Court of Session regarding bail…..

The provisions of Sections 437 and 439 furnished a convenient model for the legislature to copy while enacting Section 438. If it has not done so and has departed from a

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pattern which could easily be adopted with the necessary modifications,  it  would be wrong to refuse to give to the departure its full effect by assuming that it was not intended to serve any particular or specific  purpose. The departure, in our opinion, was made advisedly and purposefully:  Advisedly,  at least in  part,  because of the 41st Report of the Law Commission which, while pointing out the  necessity  of introducing  a provision in the  Code enabling the High Court and the Court of Session to grant anticipatory bail, said in para 39.9 that it had “considered carefully the question of laying down in the statute certain conditions  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 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. Sub­section (2) of Section 438 is a further and clearer manifestation of the same legislative intent to confer a wide discretionary power to grant anticipatory bail. It provides that the High Court or the Court of Session, while issuing a direction for the grant of anticipatory bail, “may include such conditions in such directions in the light of the facts of the  particular case,  as it  may think fit”, including the conditions which are set out in clauses (i) to (iv) of sub­section (2). The proof of legislative intent can best be found in the language which the legislature uses.

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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 if generally sought brings about its striking dissimilarity with the situation in which a person who is arrested for  the commission of  a non­bailable offence asks  for bail. In the  latter situation, adequate data is available to the court, or can be called for by it, in the light of which it can grant or refuse relief and while granting it, modify it by the imposition of all or any of the conditions mentioned in Section 437.

13. This is not to say that anticipatory bail, if granted,  must  be  granted  without the imposition  of  any conditions. That will be plainly contrary to the very terms of Section 438.  Though sub­section  (1)  of that  section says that the court “may, if it thinks  fit” issue  the necessary direction for bail,  sub­section (2) confers on the court  the power to include such conditions in the direction as it may think fit in the light of the facts of the  particular case, including the conditions mentioned in clauses (i)  to (iv) of that sub­section. The 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 fit while granting anticipatory

33

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 conditions  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.

xxx xxx xxx xxx xxx xxx xxx xxx

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 non­bailable 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 non­bailable 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

34

been easier for  the  legislature  than to introduce  into the latter section a similar provision. We have already pointed out the basic distinction between these two sections. Section 437 applies only after a person, who is alleged to have committed a non­bailable offence, is arrested or detained without warrant or appears or is brought before a court. Section 438 applies before the arrest is made and, in fact, one of the pre­conditions of its application is that the person,  who  applies for relief  under it,  must  be  able to show that he has reason to believe that “he may be arrested”, which plainly means that he is not yet arrested. The nexus which this distinction bears with the grant or refusal of bail  is that in cases falling under Section 437, there is  some concrete  data  on the  basis  of  which it is possible to show that there appear to be reasonable grounds for believing that the applicant has been guilty of an offence punishable with death or imprisonment for life. In cases falling  under  Section  438 that stage is still to arrive and, in the generality of cases thereunder, it would be premature and indeed difficult  to predicate that there 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 the 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  the Court of Session “thinks fit” to do so, Section 437(1) does

35

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 the 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. ….. An order of anticipatory bail does not in any way, directly or indirectly, take  away  from  the  police their right to investigate into charges made or to be made against the person released on bail. In fact, two of the usual conditions incorporated in a direction issued under Section 438(1) are those recommended in sub­section (2)(i) and (ii) which require the applicant to cooperate with the police and to assure that he shall not tamper with the witnesses during and after the investigation.  While granting relief under  Section  438(1), appropriate conditions can be imposed under Section

36

438(2) so as to ensure an uninterrupted investigation. One of  such conditions  can even be that in the  event  of the police making out a case of a likely discovery under Section 27 of the Evidence Act, the person released on bail shall be liable to be taken in police custody for facilitating the discovery. Besides, if and when the occasion arises, it may be possible for the prosecution to claim the benefit of Section 27 of the Evidence Act in regard to a discovery of facts made in pursuance of 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 : (1961) 1 SCR 14, 26 : 1960 Cri LJ 1504] 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 limitations are implicit in Section 438 but, with respect, no such implications  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

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petitioner 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 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  a 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 the matter  in regard to which it  is required to be exercised, has to be used with due care and caution. In fact, an awareness of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial  discretion.  One  ought  not to make a bugbear of the power to grant anticipatory bail.

22. By proposition No. 1 the High Court says that the power conferred  by  Section  438 is “of  an extraordinary character and must be exercised sparingly in exceptional cases only”. It may perhaps be right to describe the power as of an extraordinary character because ordinarily the bail is applied for under Section 437 or Section 439. These sections deal with the power to grant or refuse bail  to a person who is in the custody of the police and that is the ordinary situation  in  which bail is  generally applied  for. But this does not justify the conclusion that the power must be exercised in exceptional cases only, because it is of an extraordinary character. We will really be saying once too often that all discretion has to be exercised with care and circumspection, depending on circumstances  justifying  its exercise. It is unnecessary to travel beyond it and subject

38

the wide power conferred by the legislature to a rigorous code of self­imposed limitations.

xxx xxx xxx xxx xxx xxx

25. ….. We agree, with respect, that the power conferred by Section 438 is of an extraordinary character in the sense indicated above, namely, that it is not ordinarily resorted to like the power conferred by Sections 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 the observations made in Balchand Jain [(1976) 4 SCC 572 : 1976 SCC  (Cri)  689 : (1977) 2 SCR 52] in an altogether different context on an altogether different point.

xxx xxx xxx xxx xxx xxx

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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xxx xxx xxx xxx xxx

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 non­bailable offence. The use of the expression “reason to believe” shows that the belief that the applicant may be so arrested must be founded on reasonable grounds. Mere ‘fear’ is not ‘belief”, for which reason it is not enough for the applicant to show that he has some sort of a vague apprehension that some one is going to make an accusation against him, in pursuance of which he may be arrested. The grounds on which the belief of the applicant is based that he may be arrested for a non­bailable offence, must be capable of being examined by the court objectively, because it is then alone that the court can determine whether the applicant has reason to believe that he may be so arrested. Section 438(1), therefore, cannot be invoked on the basis of vague and general allegations, as if to arm oneself in perpetuity against a possible arrest. Otherwise, the number of applications for anticipatory bail will be as large as, at any rate, the  adult  populace.  Anticipatory  bail is  a  device to secure the individuals liberty; it is neither a passport to the commission of crimes nor  a shield against any  and  all kinds of accusations, likely or unlikely

36. Secondly, if 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.

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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 activity, in fact any eventuality, likely or unlikely regarding which, no concrete information can

41

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 non­bailable offence. It is unrealistic to expect the applicant to draw up his application with the meticulousness of a pleading in a civil case and such is not requirement of the section. But specific events and facts must be disclosed by the applicant in order to enable the court to judge of the reasonableness of his belief, the existence of which is the sine  qua  non  of the  exercise of  power conferred  by the section.

41. Apart from the fact that the very language of the statute compels this construction, there is an important principle involved in the insistence that facts, on the basis of which a direction under Section 438(1) is sought, must be clear and specific, not vague and general. It is only by the observance of that principle that a possible conflict between the right  of  an  individual to his  liberty and the right of the police to investigate into crimes reported to them can be avoided. A blanket order of anticipatory bail is bound to cause serious interference with both the right and the duty of the police in the matter of investigation because, regardless of what kind of offence is 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.

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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 re­examined in the light of the respective contentions of the parties. The ad interim order too must conform to the requirements  of the  section  and suitable conditions should be imposed on the applicant even at that stage. Should the operation of an order passed under Section 438(1) be 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 until 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 will remain in operation only for a week or so until after the filing of the FIR in respect of matters covered  by the  order.  These orders,  on the  whole,  have worked satisfactorily, causing the least inconvenience to the individuals concerned and least interference with the

43

investigational rights of the police. The court has attempted through those orders to strike a balance between the individual's right to personal freedom and the investigational rights of the police. The appellants who were refused anticipatory bail by various courts have long since been released by this Court under Section 438(1) of the Code.”

7.4 The aforesaid decision of the Constitution Bench in the

case of  Gurbaksh Singh Sibbia (supra)  holds the field for

number of years and the same has been followed by all the

Courts in the country. While granting anticipatory bail,

normally following conditions are imposed by the

court/courts which as such are in consonance with the

decision of the Constitution Bench in the case of  Gurbaksh

Singh  Sibbia (supra)  and  Section  438(2) read  with  Section

437(3) of the Cr.P.C:

1. the applicant namely________________ shall furnish

personal bond of Rs.______________ with his recent self­

attested photograph and surety  of the like amount  on  the

following  conditions  at the  satisfaction  of the Investigating

Officer;

44

2. the applicant shall remain present before the

concerned police station on ____________ between

____________________;

3. the applicant shall co­operate  with the investigation

and make himself available for interrogation whenever

required;

4. the applicant shall not directly or indirectly make any

inducement, threat or promise to any witness acquainted

with the facts of the case so as to dissuade him from

disclosing such facts to the court or to any police officer;

5. the applicant shall not obstruct or hamper the police

investigation and not to play mischief with the evidence

collected or yet to be collected by the police;

6. the applicant shall not leave the territory of

____________, without prior permission of the court, till trial is

over;

7. the applicant shall mark his presence before concerned

police station on ______________ between ____________ for the

period of six months, from the date of this order;

45

8. the applicant shall maintain law and order;

9. the applicant shall, at the time of execution of the

Bond, furnish his address and mobile number to the

Investigating Officer, and the Court concerned, and shall not

change the residence till the final disposal of the case;

10. the applicant shall surrender his passport, if any,

before the Investigating Officer within a week and, if he does

not possess any passport,  he shall file  an affidavit to that

effect before the Investigating Officer;

11. the applicant shall regularly remain present during the

trial, and co­operate the Honourable Court to complete the

trial for the above offences.

 If breach of any of the above conditions is committed, the

order of  anticipatory bail  would be cancelled.   It  would be

open to the Investigating  Officer to file an application for

remand,  and  the  concerned  Magistrate  would  decide it on

merits, without  influenced by the grant of anticipatory bail

order.

46

  However, in the case of Siddharam Satlingappa Mhetre

(supra), despite the specific observations by the Constitution

Bench of this Court in   Gurbaksh Singh Sibbia (supra)  that

the normal rule should be not to limit the operation of the

order  in relation to a period of  time,  in other words  in an

appropriate case and looking to the facts and circumstances

of the case and the stage at which the pre­arrest bail

application was made, the court concerned can limit the

operation  of the order in relation to a  period of time, on

absolute misreading of the judgment in the case of Gurbaksh

Singh  Sibbia (supra)  and just contrary to the  observations

made in paragraphs 42 and 43, an absolute proposition of

law is laid down that the life of the order under Section 438,

Cr. P.C. granting bail cannot be curtailed.   Despite the clear

cut observations made by the Constitution Bench in

Gurbaksh Singh Sibbia  (supra)  made in paragraphs 42 and

43, in the case of  Salauddin Abdulsamad Shaikh (supra), a

three Judge Bench of this Court has observed and held that

the order of “anticipatory bail” has to be necessarily limit in

time frame.  In many cases subsequently  the decision in the

47

case of  Salauddin Abdulsamad Shaikh (supra)  has been

followed, despite the specific observations made by the

Constitution Bench in Gurbaksh Singh Sibbia (supra) made in

paragraphs 42 and 43 which, as such, are just contrary to

the view taken in subsequent decisions in the cases of

Siddharam Satlingappa Mhetre (supra) and Salauddin

Abdulsamad Shaikh (supra).  At this stage, it is required to be

noted that in the case of  Salauddin Abdulsamad Shaikh

(supra), this Court had not at all considered the decision of

the Constitution Bench in the case of Gurbaksh Singh Sibbia

(supra).  It cannot be disputed that the decision of this Court

in the case of Gurbaksh Singh Sibbia(supra) is a Constitution

Bench decision which is binding unless it is upset by a larger

Bench than the Constitution Bench.   Therefore, considering

the decision of the Constitution Bench of this Court in the

case of  Gurbaksh Singh Sibbia (supra)  and the relevant

observations, reproduced  hereinabove, the  decision  of this

Court in the case of Siddharam Satlingappa Mhetre (supra) to

the extent it takes the view that the life of the order under

Section 438 Cr.P.C. cannot be curtailed is not a correct law in

48

light of the observations made by the Constitution Bench in

paragraphs 42 and 43 in Gurbaksh Singh Sibbia (supra).  The

decision of this Court in the case of  Salauddin Abdulsamad

Shaikh (supra) which takes an extreme view that the order of

“anticipatory bail” has to be necessarily limited in time frame

is also not a good law and is against and just contrary to the

decision of this Court in the case of  Gurbaksh Singh Sibbia

(supra), which is a Constitution Bench judgment.

7.5 Thus, considering the observations made by the

Constitution Bench of this  Court in the  case  of  Gurbaksh

Singh Sibbia (supra), the court may, if there are reasons for

doing so, limit the operation of the order to a short period

only after filing of an FIR in respect of the matter covered by

order and the  applicant  may in such case be  directed to

obtain an order of bail under Sections 437 or 439 of the Code

within a reasonable short period after the filing of the FIR.

The Constitution Bench has further observed that the same

need  not  be followed as an invariable rule.   It is further

observed and held that normal rule should be not to limit the

operation of the order in relation to a period of time.  We are

49

of the  opinion that the  conditions  can be imposed  by the

concerned court while granting pre­arrest bail order including

limiting the operation of the order in relation to a period of

time if the circumstances so warrant, more particularly the

stage at which the “anticipatory bail”  application is moved,

namely, whether the same is at the stage before the FIR is

filed or at the stage when the FIR is filed and the investigation

is in progress or at the stage when the investigation is

complete and the charge sheet is filed.  However, as observed

hereinabove, the normal rule should be not to limit the order

in relation to a period of time.

New Delhi; ………………………………J. January 29, 2020 [M.R. SHAH]

50

SPECIAL LEAVE PETITION (CRIMINAL) NO (s).  7281-7282 OF 2017

SUSHILA  AGGARWAL & ORS.                  ...APPELLANT(S)

VERSUS

STATE (NCT OF DELHI) & ANR.                        ...RESPONDENT(S)

J U D G M E N T

S. RAVINDRA BHAT, J.

1. I have gone through the reasoning and conclusions of Justice M.R. Shah.  I am

in  agreement  with  his  judgment.   However,  I  am supplementing  the  conclusions

arrived at by Shah, J with this separate judgment since I am of the view that while

there  is  no  disagreement  on  the  essential  reasoning,  some  aspects  need  to  be

discussed, in addition.

2. The following questions have been referred to this larger bench of five judges: (1) Whether the protection granted to a person under Section 438 Cr. PC should

be limited to a fixed period so as to enable the person to surrender before the

Trial Court and seek regular bail. (2) Whether the life of an anticipatory bail should end at the time and stage

when the accused is summoned by the court. Background 3. First, a background. The judgment of a five-judge bench of this court in  Shri

Gurbaksh Singh Sibbia and others v. State of Punjab1  considered the available views

on the provision for anticipatory bail (a concept not in existence till the enactment of

the Criminal Procedure Code, 1973- hereafter “Cr. PC” or “the Code”). Section 438

enables two classes of courts- a Court of Sessions and High Court, to issue directions

not to arrest a person, who apprehends arrest.  Sibbia comprehensively dealt with the

history of the provision, the felt need which resulted in its enactment, the observations

and  comments  of  the  41st Report  of  the  Law Commission,  which  had  suggested

introduction of such a provision,  and the efficacy of prevailing practices.  In brief,

1 1980 (2) SCC 565

51

Sibbia (which this court would analyze in greater detail later) held that the power (to

grant anticipatory bail) is cast in wide terms and should not be hedged in through

narrow judicial  interpretation.  At  the  same time,  the  larger  bench (of  five  judges,

which  decided  Sibbia)  ruled  that  in  given  individual  cases,  courts  could  impose

conditions which were appropriate, having regard to the circumstances.  4. This reference is necessitated, because in the present case, a bench of three

judges, on 15th May 2018, noticed conflicting views regarding interpretation of the

provision- Section 438. The court  noticed,  prima facie,  that one line of judgments

(Salauddin Abdulsamad Shaikh v. State of Maharashtra2; K.L. Verma v. State & Anr3;

Sunita Devi  v.  State of  Bihar & Anr4;  Adri  Dharan Das v.  State of  West  Bengal5;

Nirmal Jeet Kaur v. State of M.P. & Anr6; HDFC Bank Limited v. J.J. Mannan7; Satpal

Singh v. the State of Punjab8  and Naresh Kumar Yadav v Ravindra Kumar9 held that

anticipatory bail orders should invariably contain conditions, either with reference to

time,  or  occurrence  of  an  event,  such  as   filing  of  a  charge  sheet,  in  criminal

proceedings,  that  would  define  its  time  of  operation,  after  which  the  individual

concerned would have to secure regular bail, under Section 439 Cr. PC. The court also

noticed, that on the other hand, the observations in  Sibbia  did not suggest such an

inflexible approach. The second line of cases included Siddharam Satlingappa Mhetre

v. State of Maharashtra & Ors10 and Bhadresh Bipinbhai Sheth v. State of Gujarat &

Anr11; these held that no conditions ought to be imposed by the court, whilst granting

anticipatory bail,  which was to  inure  and protect  the  individual  indefinitely-  even

2 (1996 (1) SCC 667)

3 1998 (9) SCC 348

4 2005 (1) SCC 608

5 2005 (4) SCC 303

6 2004 (7) SCC 558

7 2010 (1) SCC 679

8 2018 SCC Online (SC 415

9 2008 (1) SCC 632

10 2011 (1) SCC 694

11 2016 (1) SCC 152

52

when charges were framed in a given criminal case, leading to trial- till the end of the

trial.  5. The court, in  Sibbia,  elaborately dealt with the background which led to the

introduction of the provision for anticipatory bail. It took note of the forty first report

of the Law Commission, on whose recommendations the provision was introduced.

Sibbia  traced the history of the provision, from the stage of the recommendation, to

the draft bill and later its enactment, observing as follows: “4. The CrPC, 1898 did not contain any specific provision corresponding to  the  present  Section  438.  Under  the  old  Code,  there  was  a  sharp difference of opinion amongst the various High Courts on 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 need for extensive amendments to the CrPC was felt for a long time and various suggestions were made in different quarters in order to make the Code more effective and comprehensive. The Law Commission of  India,  in  its  41st  Report  dated  September  24,  1969  pointed  put  the necessity of introducing a provision in the Code enabling the High Court and  the  Court  of  Session  to  grant  "anticipate;  bail".  It  observed  in paragraph 39.9 of its report (Volume I) :

39.9. 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 a 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 recommend the acceptance of this suggestion. We are further of the view that this special power should be conferred only on the High Court and the Court of Session, and that the order should take effect at the time of arrest or thereafter.

In order to settle the details of this suggestion, the following draft of a, new section is placed for consideration :

53

‘497A. (1) When any person has a reasonable apprehension that he would 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 Court may, in its discretion, direct that in the event of his arrest,  he shall be released on bail.

(2)  A Magistrate taking cognizance of  an offence against  that person  shall,  while  taking  steps  Under  Section  204(1),  either issue summons or a bailable warrant as indicated in the direction of the Court under Sub-section (1).

(3) if any person in respect of whom such a direction is made is arrested  without  warrant  by  an  officer  in  charge  of  a  police station on an accusation of having committed that; offence, and is prepared either at the time of arrest or at any time while in the custody  of  such  officer  to  give  bail,  such  person  shall  be released on bail.”

We considered carefully the question of laying down in the statute certain conditions under which alone anticipatory bail could be granted. But we found that it may not be practicable to exhaustively enumerate those conditions;  and  moreover,  the  laying  down  of  such  conditions  may  be construed as prejudging (partially at any rate) the whole case. Hence we would leave it to the discretion, of the; court and prefer not to fetter such discretion  in  the  statutory  provision  itself.  Superior  Courts  will, undoubtedly,  exercise  their  discretion  properly,  and  not  make  any observations  in  the  order  granting  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 Clause 447 in the Draft Bill of the CrPC, 1970 with a view to conferring an express power on the High Court and the Court of Session to grant anticipatory bail. That Clause read thus :

‘447. (1) When any person has reason to believe that he would 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; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.

(2) If  such person is  thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the lime of arrest or at any time while in the

54

custody of such officer to give bail, he shall be released on bail; and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under Sub-section (1).’

6. The Law Commission, in paragraph 31 of its 48th Report (1972), made the following comments on the aforesaid Clause.

‘31. 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 a 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 CrPC, 1973 which we have extracted at the outset of this judgment.”

6. The context of Sibbia was the correctness of a decision of the Full Bench of the

Punjab and Haryana High Court, which restrictively interpreted Section 438 and held

that the power under Section 438, “is extra-ordinary” and must be exercised sparingly

in exceptional cases only; that it does not empower the grant of anticipatory bail in a

blanket manner, in respect of offences not yet committed or with regard to accusations

not yet levelled; that it is not an unguided power, but subject to limitations in Section

437 – which are implicit and must be read into Section 438. The Full Bench also held

that the petitioner must “must make out a special case for the exercise of the power to

grant anticipatory bail”; and further that where a legitimate case for remand to police

custody  is  made  or  a  reasonable  claim  to  secure  incriminating  material  from

55

information likely to be received from the offender “under Section 27 of the Evidence

Act can be made out, the power Under Section 438 should not be exercised.” The full

bench held that Section 438 cannot be availed in respect of offences punishable with

death or life imprisonment “unless the court at that very stage is satisfied that such a

charge appears to be false or groundless.” Likewise, in larger public interest and the

state’s  interest  Section 438 cannot be  resorted to  in “economic offences  involving

blatant corruption at the higher rungs of the executive and political power” and that  “(8) Mere general allegation 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.”

7. Sibbia discussed this issue and held that the narrow, restricted interpretation of

Section 438 was not warranted. The court disapproved the Punjab High Court Full

Bench decision; the five judge Bench ruled as follows:

“…The provisions of Sections 437 and 439 furnished a convenient model for the legislature to copy while enacting Section 438. If it has not done so and has departed from a pattern which could easily be adopted with the necessary  modifications,  it  would  be  wrong  to  refuse  to  give  to  the departure its full effect by assuming that it was not intended to serve any particular or specific purpose. The departure, in our opinion, was made advisedly and purposefully: Advisedly, at least in part, because of the 41st Report of the Law Commission which, while pointing out the necessity of introducing a provision in the Code enabling the High Court and the Court of  Session  to  grant  anticipatory  bail,  said  in  para  39.9  that  it  had “considered carefully  the  question of  laying down in the  statute  certain conditions 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  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 clearer manifestation of the same legislative intent to confer a wide discretionary

56

power to grant anticipatory bail.  It  provides that the High Court or the Court of Session, while issuing a direction for the grant of anticipatory bail, “may include such conditions in such directions in the light of the facts of the particular case, as it may think fit”, including the conditions which are set out in clauses (i) to (iv) of sub-section (2). The proof of legislative intent can best be found in the language which the legislature uses. Ambiguities can undoubtedly be resolved by resort  to extraneous aids but words,  as wide and explicit as have been used in Section 438, must be given their full effect, especially when to refuse to do so will result in undue impairment of the freedom of the individual and the presumption of innocence. It has to be borne  in  mind  that  anticipatory  bail  is  sought  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 if generally sought brings about its striking dissimilarity with the situation in which a person who is arrested for the commission of a non-bailable 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 fit 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 conditions 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.

57

14. Generalizations on matters which rest on discretion and the attempt to discover formulae of universal application when facts are bound to differ from case to case frustrate the very purpose of conferring discretion. No two cases are alike on facts and therefore, courts have to be allowed a little free  play in  the joints  if  the conferment of  discretionary power is  to  be meaningful. There is no risk involved in entrusting a wide discretion to the Court of Session and the High Court in granting anticipatory bail because, firstly, these are higher courts manned by experienced persons, secondly, their orders are not final but are open to appellate or revisional scrutiny and above all  because,  discretion has  always to  be  exercised by courts judicially and not according to whim, caprice or fancy. On the other hand, there is a risk in foreclosing categories of cases in which anticipatory bail may be allowed because life throws up unforeseen possibilities and offers new challenges. Judicial discretion has to be free enough to be able to take these possibilities in its stride and to meet these challenges. While dealing with the necessity for preserving judicial discretion unhampered by rules of general application.

-------- -------------- ------

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 the 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 : (1943-44) 71 IA 203 : 46 Cri LJ 413] :

“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 of the Criminal Procedure Code, to

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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 sub-section (2)(i) and (ii) which require the applicant to cooperate with the police and to assure that he shall not tamper with the witnesses during and after the investigation. While granting relief under Section  438(1),  appropriate  conditions  can  be  imposed  under  Section 438(2)  so  as  to  ensure  an  uninterrupted  investigation.  One  of  such conditions can even be that in the event of the police making out a case of a likely discovery under Section 27 of the Evidence Act, the person released on bail  shall  be liable to be taken in  police custody for  facilitating the discovery. Besides, if and when the occasion arises, it may be possible for the prosecution to claim the benefit of Section 27 of the Evidence Act in regard to a discovery of facts made in pursuance of 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 : (1961) 1 SCR 14, 26 : 1960 Cri LJ 1504] 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.

------------ --------- -------

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 the 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 a restraint which will have the effect of making the power utterly unguided. To say that the applicant must make out a “special

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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 the matter in regard to which it is required to be  exercised,  has  to  be  used  with  due  care  and  caution.  In  fact,  an awareness of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of  a  prudent  exercise  of  judicial  discretion.  One  ought  not  to  make  a bugbear of the power to grant anticipatory bail.

--------- ---------- ---------

22. By proposition No. 1 the High Court says that the power conferred by Section  438  is  “of  an  extraordinary  character  and  must  be  exercised sparingly in exceptional cases only”. It may perhaps be right to describe the power as of an extraordinary character because ordinarily the bail is applied for under Section 437 or Section 439. These sections deal with the power to grant or refuse bail to a person who is in the custody of the police and that is the ordinary situation in which bail is generally applied for. But this  does not justify  the conclusion that the power must be exercised in exceptional cases only, because it is of an extraordinary character. We will really be saying once too often that all discretion has to be exercised with care  and  circumspection,  depending  on  circumstances  justifying  its exercise. It is unnecessary to travel beyond it and subject the wide power conferred by the legislature to a rigorous code of self-imposed limitations.

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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 [Maneka Gandhi v. Union of India, (1978) 1 SCC 248] , that in

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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.

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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.

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  applications  for anticipatory  bail  will  be  as  large  as,  at  any  rate,  the  adult  populace. Anticipatory bail is a device to secure the individuals liberty; it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations, likely or unlikely

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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 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

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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 until 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 will remain in operation only for a week or so until after the filing of the FIR in respect of matters  covered by the  order.  These orders,  on the  whole,  have worked satisfactorily, causing the least inconvenience to the individuals concerned and least interference with the investigational rights of the police. The court has  attempted  through  those  orders  to  strike  a  balance  between  the

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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.”

8. The judgment in  Sibbia  was understood and no apprehensions were reflected

about the duration of anticipatory bail orders, in the next decade and a half. While so,

in Salauddin Abdulsamad Shaikh V. State of Maharashtra, (1996) 1 SCC 667 for the

first time, a discordant note appears to have been struck. It was stated in  Salauddin

(supra) that grant of anticipatory bail should not mean that the regular court, which is

to try the offender, would be  “bypassed”.  This court approved the approach of the

High Court, which had fixed the outer date for the continuance of the  bail and further

directed  that  the  petitioner,  upon  expiry,  should  move  the  regular  court  of  bail.

Saluddin  further  held that  the  procedure  followed by the High Court  was correct,

because:  

“it must be realised that when the Court of Session or the High Court is granting anticipatory bail, it is granted at a stage when the investigation is incomplete and, therefore, it is not informed about the nature of evidence against the alleged offender. It is therefore, necessary that such anticipatory bail orders should be of a limited duration only and ordinarily on the expiry of that duration or extended duration the court granting anticipatory bail should  leave  it  to  the  regular  court  to  deal  with  the  matter  on  an appreciation of evidence placed before it after the investigation has made progress or the charge-sheet is submitted”.”

9. The approach and reasoning in  Salauddin  was applied and reiterated by this

Court,  in  K.L.  Verma v.  State12.   That decision (K.L.  Verma)  further  explained the

scope of the provision that till  the regular bail application of an accused, enjoying

protection under Section 438 is pending before the regular court he need not surrender

and his protection  will continue  till the disposal of the regular bail application under

Section 437 or Section 439, and that she or he has to move an application (for regular

bail) after expiry of a certain duration as directed by the Court or if the Charge-sheet is

submitted because regular courts cannot be bypassed. It was held, in K.L. Verma that:

12 1998 (9) SCC  348

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“3....This  Court  further  observed  that  anticipatory  bail  is  granted  in anticipation of arrest in non- bailable cases, but that does not mean that the regular court, which  is to try  the offender, is  sought to be bypassed...By this, what the Court desired to convey was that an order of anticipatory bail does not enure till the end of trial but it must be of limited duration as the regular court cannot be bypassed. The limited duration must be determined having regard to the facts of  the case and the need to give the accused sufficient time to move the regular court for bail and to give the regular court sufficient time to determine the bail application.  In other words, till the bail application is disposed of one way or the other the court may allow the  accused  to  remain  on  anticipatory  bail.  …..  This  decision  was  not intended to convey that as soon as the accused persons are produced before the regular court the anticipatory bail ends even if the court is yet to decide the question of bail on merit  s. The decision in Salauddin case [(1996) 1 SCC 667] has to be so understood.”

10. Again, Sunita Devi; Nirmal Jeet Kaur and Adri Dharan Das (supra) are three

later decisions where this court applied the ratio in Salauddin and echoed the concern

that the “ protective umbrella” of Section 438 cannot be extended beyond the time

period indicated in the previous case (Salauddin) or till the applicant avails remedies

up to  high courts and that  doing so would mean that  the  regular  court  would be

bypassed. The court reiterated that Section 439 would be rendered a dead letter if the

applicant  is  allowed the  benefit  of  an  order  under  Section  438  till,  he  avails  the

remedy of regular bail up to higher courts. In HDFC Bank Ltd. v. J.J. Mannan,13this

court  followed  and  applied  the  reasoning  in  Salauddin,  to  the  extent  that  certain

limitations must be imposed, while granting anticipatory bail. A new axiom too was

added, that if the police “made out” a case against the applicant and his name was

included as an  “accused in the charge-sheet,  the accused has to surrender to the

custody of the court and pray for regular bail. On the strength of an order granting

anticipatory bail, an accused against whom charge has been framed, cannot avoid

appearing before the trial court..” The court observed that:

“19. The object of Section 438 CrPC has been repeatedly explained by this Court and the High Courts to mean that a person should not be harassed or humiliated  in  order  to  satisfy  the  grudge  or  personal  vendetta  of  the complainant.  But at  the same time the provisions of  Section 438 Cr PC cannot  also be invoked to  exempt  the  accused from surrendering to  the

13 2010 (1) SCC 679   

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court after the investigation is complete and if charge-sheet is filed against him. Such an interpretation would amount to violence to the provisions of Section 438 Cr PC, since even though a charge-sheet may be filed against an  accused and charge  is  framed against  him,  he  may  still  not  appear before the court at all even during the trial. 20. Section 438 CrPC contemplates arrest at the stage of investigation and provides a mechanism for an accused to be released on bail should he be arrested during the period of investigation. Once the investigation makes out a case against him and he is included as an accused in the charge- sheet, the accused has to surrender to the custody of the court and pray for regular  bail.  On the strength of  an order granting anticipatory bail,  an accused against whom charge has been framed, cannot avoid appearing before the trial court.”

11. In the light of these decisions, which narrowed the scope and jurisdiction under

Section  438,  the  judgment  in  Mhetre  noticed  that  Sibbia  was by a  Bench of  five

judges, which indicated that imposition of restrictions for granting anticipatory bail

was not always necessary. The court, in Mhetre observed as follows:

“... Those orders are contrary to the law laid down by the judgment of the Constitution Bench in Sibbia's case (supra). According to the report of the National  Police  Commission,  the  power of  arrest  is  grossly  abused and clearly  violates  the  personal  liberty  of  the  people,  as  enshrined  under Article 21 of the Constitution, then the courts need to take serious notice of it. When conviction rate is admittedly less than 10%, then the police should be  slow  in  arresting  the  accused.  The  courts  considering  the  bail application should try to maintain fine balance between the societal interest vis-à-vis personal liberty while adhering to the fundamental principle of criminal jurisprudence that the accused that the accused is presumed to be innocent till he is found guilty by the competent court.

94.  The  complaint  filed  against  the  accused  needs  to  be  thoroughly examined including the aspect whether the complainant has filed 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 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.

95.  The gravity of charge and 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

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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.

96. It is imperative for the courts to carefully and with meticulous precision evaluate the facts of the case. The discretion 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 investigation and he is fully cooperating with the investigating agency and is not likely to abscond, in that event, custodial interrogation should be avoided.

97. A great ignominy, humiliation and disgrace is attached to the 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  arrest  at  a  pre-conviction  stage  or  post- conviction stage. Whether the powers under section 438 Cr.P.C. are subject to limitation of section 437 Cr.P.C.?

98. The  question  which  arises  for  consideration  is  whether  the  powers under section 438 Cr.P.C. are unguided or uncanalised or are subject to all the limitations of section 437 Cr.P.C.? The Constitution Bench in Sibbia's case (supra) has clearly observed that there is no justification for reading into  section  438  Cr.P.C.  and  the  limitations  mentioned  in  section  437 Cr.P.C. The Court further observed that the plentitude of the section must be given its full play. The Constitution Bench has also observed that the High Court  is  not right  in observing that  the accused must make out  a “special case” for the exercise of the power to grant anticipatory bail. This virtually, reduces the salutary power conferred by section 438 Cr.P.C. to a dead letter. The Court observed that “We do not see why the provisions of Section 438 Cr.P.C. should be suspected as containing something volatile or incendiary, which needs to be handled with the greatest care and caution imaginable.”

99. As  aptly  observed  in Sibbia's  case  (supra) that  a  wise  exercise  of judicial  power inevitably  takes  care  of  the  evil  consequences  which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be  exercised,  has  to  be  used  with  due  care  and  caution.  In  fact,  an awareness of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of  a  prudent  exercise  of  judicial  discretion.  One  ought  not  to  make  a bugbear of the power to grant anticipatory bail.

100. The Constitution Bench in the same judgment  also observed that  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 enlarged on bail.  

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101. The  proper  course  of  action  ought  to  be  that  after  evaluating  the averments and accusation 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  bail  application  or  confirm  the  initial  order  of granting bail. The court would certainly be entitled to impose conditions for the grant of bail.  The public prosecutor or complainant would be at liberty to move the same court for cancellation or modifying the conditions of bail any time if liberty granted by the court is misused. The bail granted by the court should ordinarily be continued till the trial of the case.

102. The  order  granting  anticipatory  bail for  a  limited  duration  and thereafter  directing  the  accused  to  surrender  and  apply  before  a regular bail is contrary to the legislative intention and the judgment of the Constitution Bench in Sibbia's case (supra).

103. 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.

104. The intention of the legislature is quite clear that the power of grant or refusal of bail is entirely discretionary. The Constitution Bench in Sibbia's case (supra) has clearly stated that grant and refusal is discretionary and it should  depend  on  the  facts  and  circumstances  of  each  case.  The Constitution Bench in the said case has aptly observed that we must respect the wisdom of the Legislature entrusting this power to the superior courts namely, the High Court and the Court of Session. The Constitution Bench observed as under:

“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  recognized  over  the  years,  than  by  divesting them of their discretion which the legislature has conferred upon them, by laying down inflexible rules of general application. It is customary, almost chronic, to take a statute as one finds it on the grounds that, after all “the legislature in, its wisdom” has thought it  fit  to use a particular expression.  A convention may usefully grow whereby the High Court and the Court of Session may be trusted  to  exercise  their  discretionary  powers  in  their  wisdom, especially when the discretion is  entrusted to  their  care by the legislature  in  its  wisdom.  If  they  err,  they  are  liable  to  be corrected.”

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GRANT  OF  BAIL FOR  LIMITED  PERIOD  IS  CONTRARY  TO  THE LEGISLATIVE  INTENTION  AND  LAW  DECLARED  BY  THE CONSTITUTION BENCH:

105. The  court  which  grants  the bail has  the  right  to  cancel the bail according  to  the  provisions  of  the  General  Clauses  Act  but ordinarily  after  hearing  the  public  prosecutor  when  the bail order  is confirmed then the benefit of the grant of the bail should continue till the end of the trial of that case.

106. The judgment in Salauddin Abdulsamad Shaikh (supra) is contrary to legislative intent and the spirit  of the very provisions of  the anticipatory bail  itself and has resulted in an artificial and unreasonable restriction on the scope of enactment contrary to the legislative intention.

107. The restriction on the provision of anticipatory bail under section 438 Cr.P.C. limits the personal liberty of the accused granted under Article 21 of  the  constitution.  The  added  observation  is  nowhere  found  in  the enactment and bringing in restrictions which are not found in the enactment is again an unreasonable restriction. It would not stand the test of fairness and reasonableness which is implicit in Article 21 of the Constitution after the decision in Maneka Gandhi's case (supra) in which the court observed 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.

108. Section 438 Cr.P.C. does not mention anything about the duration to which a direction for release on bail   in the event of arrest can be granted. The order granting anticipatory bail is a direction specifically to release the accused  on bail  in  the  event  of  his  arrest.  Once  such  a  direction of anticipatory bail  is executed by the accused and he is released on bail, the  concerned  court  would  be  fully  justified  in  imposing  conditions including direction of joining investigation.

109. The  court  does  not  use  the  expression  ‘anticipatory  bail’ but  it provides for issuance of direction for the release on  bail  by the High Court or the Court of Sessions in the event of arrest. According to the aforesaid judgment of Salauddin's case, the accused has to surrender before the trial court and only thereafter he/she can make prayer for grant of bail  by the trial  court.  The trial  court  would release the  accused only  after  he has surrendered.

110. In pursuance to the order of the Court of Sessions or the High Court, once the accused is released on 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.

111. The  court  must  bear  in  mind  that  at  times  the  applicant  would approach the court for grant of anticipatory bail  on mere apprehension of being arrested on accusation of having committed a non-bailable offence.

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In fact, the investigating or concerned agency may not otherwise arrest that applicant who has applied for anticipatory bail  but just because he makes an application before  the  court  and gets  the relief  from the court  for  a limited period and thereafter he has to surrender before the trial court and only  thereafter  his  bail  application  can  be  considered  and  life of anticipatory  bail  comes  to  an  end.  This  may  lead  to  disastrous  and unfortunate consequences. The applicant who may not have otherwise lost his liberty loses it because he chose to file application of anticipatory bail  on mere apprehension of being arrested on accusation of having committed a non-bailable offence. No arrest should be made because it is lawful for the police officer to do so. The existence of power to arrest is one thing and the justification for the exercise of it  is quite another. The police officer must be able to justify the arrest apart from his power to do so. This finding of the said judgment (supra) is contrary to the legislative intention and law which has been declared by a Constitution Bench of this court in Sibbia's case (supra).

112. The validity of the restrictions imposed by the Apex Court, namely, that the accused released on anticipatory bail  must submit himself to custody and only thereafter can apply for regular bail . This is contrary to the basic intention and spirit of section 438 Cr.P.C. It is also contrary to Article 21 of the Constitution. The test of fairness and reasonableness is implicit under Article 21 of the Constitution of India. Directing the accused to surrender to custody after the limited period amounts to deprivation of his personal liberty.

113. It is a settled legal position crystallized by the Constitution Bench of this  court  in Sibbia's  case  (supra) that  the  courts  should  not  impose restrictions on the ambit and scope of section 438 Cr.P.C. which are not envisaged by the Legislature. The court cannot rewrite the provision of the statute in the garb of interpreting it.

114. It  is  unreasonable  to  lay  down strict,  inflexible  and rigid rules  for exercise of such discretion by limiting the period of which an order under this section could be granted. We deem it appropriate to reproduce some observations  of  the  judgment  of  the  Constitution  Bench of  this  court  in the Sibbia's case (supra)…”

********************* *****************

121. No inflexible guidelines or straitjacket formula can be provided for grant or  refusal of anticipatory  bail.  We are clearly of  the view that  no attempt should be made to provide rigid and inflexible guidelines in this respect because all circumstances and situations of future cannot be clearly visualized for the grant or refusal of anticipatory bail  . In consonance with the  legislative  intention  the  grant  or  refusal  of anticipatory  bail   should necessarily  depend  on  facts  and  circumstances  of  each  case.  As  aptly observed in the Constitution Bench decision in Sibbia's case (supra) that the High Court or the Court of Sessions to exercise their jurisdiction under

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section 438 Cr.P.C. by a wise and careful use of their discretion which by their  long training and experience they are  ideally suited to  do.  In  any event, this is the legislative mandate which we are bound to respect and honour.

122. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail:

i. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;

ii.  The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;

iii. The possibility of the applicant to flee from justice;

iv. The possibility of the accused's likelihood to repeat similar or the other offences.

v. Where the accusations have been made only with the object of injuring 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.

124. The  court  must  carefully  examine  the  entire  available  record  and particularly  the  allegations  which  have  been  directly  attributed  to  the

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accused  and  these  allegations  are  corroborated  by  other  material  and circumstances on record.

125. These are some of the factors which should be taken into consideration while deciding the anticipatory bail   applications. These factors are by no means  exhaustive  but  they  are  only  illustrative  in  nature  because  it  is difficult  to  clearly  visualize  all  situations  and circumstances  in  which a person may pray for anticipatory bail. If a wise discretion is exercised by the concerned judge, after consideration of entire material on record then most of the grievances in favour of grant of or refusal of bail will be taken care of. The legislature in its wisdom has entrusted the power to exercise this jurisdiction only to the judges of the superior courts. In consonance with the legislative intention we should accept the fact that the discretion would be properly exercised. In any event, the option of approaching the superior court against the court of Sessions or the High Court is always available.”

12. These seemingly incongruent  strands  of  reasoning-  stemming from the two

distinct line of precedents, spawning divergent approaches to the scope of jurisdiction

under Section 438 have impelled the reference to this larger Bench.  

The provisions

13. For  completeness,  it  is  essential  to  set  out  the  relevant  provisions:  to  wit,

Sections  437,  438  and  439  of  the  Code  of  Criminal  Procedure,  1974  (hereafter

variously “Cr.PC” and “the Code”). They are reproduced in the footnote below.14

Contentions of parties

14  “437. When bail may be taken in case of non- bailable offence.   

(1) When any person accused of, or suspected of, the commission of any non- bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail, but-

(i) such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life;

(ii) such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously  convicted  on  two or  more  occasions  of  a   cognizable offence punishable with imprisonment for three years or more but not less than seven years.

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14. Mr. Abhay Kumar, for the petitioner, argued that it is not correct to find any

limitation on the life span of an order of anticipatory bail in terms of its duration by

reading the para 42 of Sibbia Case; and that the life of anticipatory bail is coterminous

with the life of criminal case, whether the criminal case gets over either at the stage of

trial or before it, in a given case.  He further urged that personal liberty is a cherished

freedom,  even  more  important  than  the  other  freedoms  guaranteed  under  the

Constitution. The Constitution framers therefore enacted safeguards in Article 22 in

Provided that the Court may direct that a person referred to in clause (i) or clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm.

Provided further that the Court may also direct that a person referred to in clause (ii) be released on bail if it is satisfied that it is just and proper so to do for any other special reason.

Provided also that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court.

Provided  also that no person shall if the offence alleged to have been committed  by  him  is  punishable  with  death  imprisonment  for  life  or imprisonment for seven years or more be released on bail by the Court under this  sub-section  without  giving  an  opportunity  of  hearing  to  the  public prosecutor.

(2)  If  it  appears  to  such  officer  or  Court  at  any  stage  of  the investigation, inquiry or trial, as the case may be, that there are not reasonable grounds for believing that the accused has committed a non- bailable offence, but  that  there  are  sufficient  grounds  for  further  inquiry  into  his guilt  the accused shall,  subject  to  the  provisions  of  section  446A and  pending such inquiry, be released on bail or at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided.

(3)  When  a  person  accused  or  suspected  of  the  commission  of  an offence  punishable  with imprisonment  which  may extend to  seven years  or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code (45 of 1860) or abetment of, or conspiracy or attempt to commit, any such offence, is released on bail under sub-section (1), the Court shall impose the conditions-

(a) that such person shall attend in accordance with the conditions of the bond executed under this Chapter, or

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the Constitution to limit the power of the State to detain a person without trial, which

may otherwise pass the test of Article 21, by humanizing the harsh authority over

individual liberty.

15. It is submitted, therefore that the substantive constitutional right of personal

liberty can be denied or curtailed only in accordance with the procedure established by

a law that is fair, just and reasonable. That substantial right is procedurally enforced,

(b)  that such person shall not commit an offence similar to the offence of  which  he  is  accused  or  suspected  of  the  commission  of  which  he  is suspected, and

(c)    that  such  person  shall  not  directly  or  indirectly  make  any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him for disclosing such facts to the Court or to any police officer or tamper with the evidence,

and may also impose in the interest of justice such other conditions as it considers necessary.

(4)  An officer  or  a Court  releasing any person on bail  under  sub- section (1) or sub- section (2), shall record in writing his or its  reasons or special reasons for so doing.

(5) Any Court which has released a person on bail under sub- section (1) or sub- section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody.

(6) If, in any case triable by a Magistrate, the trial of a person accused of any non- bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in custody  during  the  whole  of  the  said  period,  be  released  on  bail  to  the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs.

(7) If, at any time after the conclusion of the trial of a person accused of a non- bailable offence and before judgment is delivered, the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused, if he is in custody, on the execution by him of a bond without sureties for his appearance to hear judgment delivered.

438. Direction for grant of bail to person apprehending arrest.

(1) When 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; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on

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apart from others, in terms of grant of Bail to an accused in a criminal case. Chapter

XXXIII of the Code contains elaborate provisions relating to grant of bail.  Bail is

granted to one who is arrested in a non-bailable offence or has been convicted of an

offence after trail. The effect of granting bail is to release the accused from internment

though the court would still retain constructive control over him through the sureties.

In case the accused is released on his own bond such constructive control could still

bail.*

* By amendment, made in 2005, Subsection (1) has been substituted as follows (the amended portion is brackets;  the amendment has not yet been brought into force):  

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

(i)  the nature and gravity of the accusation

(ii) the antecedents of the applicant including the fact as to whether 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.

Provided that where the High Court or as the case may be the Court of Session has not passed any interim order under this sub-section or has rejected the application for grant of anticipatory bail it shall be open to an officer in charge of police station to arrest without warrant the applicant on the basis of the accusation apprehended in such application  

(IA) Where the Courts grants an interim order under sub-section (1), it shall forthwith cause a notice being not less than seven days notice, together with the copy of such order to be served on the Public Prosecutor and the Superintendent  of  Police,  with  a  view  to  give  the  Public  Prosecutor  a reasonable opportunity of being heard when the application shall be finally heard by the Court

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be exercised through the conditions of the bond secured from him. “Bail” literally

means surety.

16. The  literal  meaning  of  the  word  “bail”  is  surety.  Counsel  referred  to  the

meaning of “bail” in  Halsbury’s Laws of England(Halsbury’s Laws of England, 4th

Edn., Vol. 11, para 166), and submitted that it is aimed at placing the accused in the

(IB) The presence of  the applicant seeking anticipatory bail  shall  be obligatory at the time of final hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice.]  

--------------------------------------------------------------------------------------- --------

The  unamended portion-  Section  438 (2)  and (3),  and the  newly introduced sub-section (4) read as follows:

(2)  When the High Court or the Court of  Session makes a direction under sub- section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including-

(i)  a  condition  that  the  person  shall  make  himself  available  for interrogation by a police officer as and when required;

(ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;

(iii)  a  condition  that  the  person  shall  not  leave  India  without  the previous permission of the Court;

(iv) such other condition as may be imposed under sub- section (3) of section 437, as if the bail were granted under that section.

(3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail; and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person he shall issue a bailable warrant in conformity with the direction of the Court under sub-section (1).

(4) Nothing in this Section shall apply to any case involving the arrest of any person on accusation of having committed an offence under sub-Section (3) of Section 376 or Section 376 AB or Section 376 DA or Section 376 DB of

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custody of his sureties who are bound to produce him to appear at his trial.15Upon

grant of bail, the accused is mandated to furnish bond and bail-bond for attendance

before officer in charge of police station or Court in terms of prescribes format of

Form No. 45 of  Schedule 2 of  the Code by giving necessary details.  Bail,  it  was

highlighted, can be given at any stage: pre-trial, during trial and even after completion

of trial.  Counsel submitted that apart  from provisions in Chapter XXXII of Cr.PC

(Sections 436-450), there are other provisions relevant on the issue, i.e. Section 360

the Indian Penal Code, (45 of 1860).   

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 subsection (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  an 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,  though  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.

Provided  further  that  the  High  Court  or  the  Court  of  Session  shall before granting bail to a person who is an accused of an offence triable under sub-Section (3) of Section 376 or Section 376 AB or Section 376 DA or Section 376 DB of the Indian Penal Code (45 of 1860) give notice of the application for bail to the Public Prosecutor within a period of fifteen days from the date of receipt of the notice of such application.  

(IA) The presence of the informant or any person authorised by him shall be obligatory at the time of hearing of the application for bail to the person under sub-Section (3) of the Section 376 or Section 376 AB or Section 376  DA  or  Section  376  DB  of  the  Indian  Penal  Code  (45  of  1860)  (2). A High Court or Court of Session may direct that any person who has been  released  on  bail  under  this  Chapter  be  arrested  and  commit  him  to custody.”

15  Halsbury’s Laws of England (4th  Edn., Vol. 11, para 166): “The effect of granting bail is not to set the defendant (accused) at liberty but to release him from the custody

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(Order to release on probation of good conduct or after admonition, a post-conviction

stage and  Section389  (Suspension  of  sentence  pending  the  appeal  and  release  of

appellant  on  bail  -  postconviction  and  during  pendency  of  Appeal).  Section  438

manifests the principle of liberty.  

17. Counsel highlighted that anticipatory bail is panacea for apprehension of arrest

in  false  case.  Anticipatory  bail  protects  from  trauma  and  stigma  of  arrest  of  an

innocent (in most of the cases, full  of various responsibilities and even being sole

bread earner of her/his family members), consequently prohibiting in creating reverse

victims  by  way  of  dependent  upon  the  said  accused.  An  elementary  postulate  of

criminal jurisprudence is the presumption of innocence, meaning thereby that a person

is  believed to  be  innocent  until  found guilty.  However,  there  are  instances  in  our

criminal  law where  a  reverse  onus  is  placed on an  accused with  regard  to  some

specific offences but that is another matter and does not detract from the fundamental

postulate  in  respect  of other offences.  Yet  another  important  facet  of our  criminal

jurisprudence is that the grant of bail is the general rule and putting a person in jail or

in a prison or in a correction home (whichever expression one may wish to use) is an

exception. Counsel relied on Dataram Singh v. State of U.P (2018) 3 SCC 22).

18. Counsel submitted that the provision in Section 438 read with Section 439 (2)

of  the  Code,  contain  clear  guidelines  and  limitations.  It  was  highlighted  that  the

discretion to impose (or not impose) condition is left to the concerned court and the

Code  therefore  cannot  be  interpreted  to  cut  short  its  duration  either  till  filing  of

charge-sheet  or  unearthing  of  alleged  fresh  materials  during  investigation.  It  is

submitted that the power to curtail or  to diminish, the duration of anticipatory bail, in

a suitable case, is governed by Section 439(2) of the Code in the same manner which

is enumerated in Section 437 of the Code (which is applicable to a Court other than

High Court or Court of Session). The counsel urged that there have been instances of

courts  passing  orders,  including  in  some  of  the  orders/judgments  of  this  Court,

of law and to entrust him to the custody of  his sureties who are bound to produce him to appear at  his trial at a specified time and place. The sureties may seize their principal  at  any  time  and may  discharge  themselves  by  handing him over  to  the custody of law and he will then be imprisoned.”

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wherein denial of anticipatory bail is followed by direction to accused to surrender

and seek regular bail. This, counsel highlighted, is not based on any sound rationale.  

19. Mr. C.S.N. Mohan Rao, learned counsel, emphasized that arrest of an accused,

is governed, by Sections 41-46 of the Code. The arrest of an accused, is required, if at

all, broadly for unearthing the truth of the case during investigation (a choice of the

investigating agency) and to secure the presence of accused during trial, for free and

fair  trial  including  exclusion  of  any  possibility  of  influencing  of  witnesses/and

tampering of evidence or aborting a trial by absconding (prerogative of the trail court)

or any other means or method known or unknown. Therefore, whether an accused has

to be arrested and kept in custody and remains in that state of physical confinement,

ideally is to be the domain of the prosecuting agency and /or of trying Court. There are

sufficient methods enlisted in the Code to ensure this end by both i.e. the prosecuting

agency including complainant/victim and also to the concerned court-  by filing of

cancellation of bail by former and issuance of bailable and non-bailable warrant by the

latter. Counsel argued that in any case, rejection of an application for anticipatory bail,

at first instance, does not automatically give rise to evil consequences for an accused

to surrender and seek regular bail. The filing of subsequent anticipatory bail and grant

of the relief by a competent court of law in a suitable case, upon showing proper and

inspiring  subsequent  chance  in  circumstances  in  favour  of  accused,  is  sufficient

indicative factor of the proposition that a rejection of anticipatory will generate no

automatic warrant for an accused to surrender and seek regular bail. If subsequent and

material change or circumstance can be a plausible reason for cancellation of bail, is

should definitely, considering the valuable right of an accused, equally there can be a

reason for applying fresh application for anticipatory bail in a suitable case. Having

regard to all these factors, counsel urged this court to endorse the reasoning in Mhetre

which according to  him is  conformity with the  larger  bench ruling in  Sibbia,  and

accommodates the flexibilities in the Code.

20. Mr. Rao relied on the observations in Gurcharan Singh v State (Delhi Admn)16

to say that cancellation of anticipatory bail, when warranted by the facts, is the answer

16 1978 (1) SCC 118. The observations are as follows:  

79

where the fact situation requires the applicant (who is beneficiary of an order under

Section 438 CrPC) rather than limiting the order of anticipatory bail. He also pointed

out  observations  in  Gurcharan Singh  (supra)  to  say that  statutory bail  (i.e.  where

charge sheet is  not filed in a case within the prescribed period of 60 or 90 days,

leading to release by operation of Section 167 (2) of the Code17) amounts to deemed

bail under Chapter XXXIII of the Code:

“under Section 439 (2) of the new Code a High Court may commit a person released on bail under Chapter XXXIII by any Court including the Court of Session to custody, if it thinks appropriate to do so. It must, however, be made clear that a Court of Session cannot cancel a bail which has already been granted by the High Court unless  new circumstances  arise  during  the  progress  of  the  trial  after  an  accused person has been admitted to bail by the High Court. If, however, a Court of Session had admitted an accused person to bail, the State has two options. it may move the Sessions  Judge  if  certain  new  circumstances  have  arisen  which  were  not  earlier known to the State and necessarily, therefore, to that Court. The State may as well approach the High Court being the superior Court under Section 439 (2)  to commit the accused to custody. When, however, the State is aggrieved by the order of the Sessions Judge granting bail and there are no new circumstances that leave copied up except those already existed, it is futile for the State to move the Sessions Judge again and it is competent in law to move the High Court for cancellation of the bail. This position follows from the subordinate position of the Court of Session vis-a- vis the High Court.”

17 Section 167 (2) CrPC reads as follows: “(2)  The  Magistrate  to  whom an  accused  person  is  forwarded  under  this

section may, whether he has or has no jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction: Provided that-

(a)  the  Magistrate  may  authorise  the  detention  of  the  accused  person, otherwise than in the custody of the police, beyond the period of fifteen days; if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding,-

(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than

80

“Under the first proviso to S.167 (2) no Magistrate shall authorise the detention of an accused in custody under that section for a total period exceeding 60 days on the expiry of which the accused shall be released on bail if he is prepared to furnish the same- This type of release under the proviso shall be deemed to be a release under the provisions of Chapter XXXIII relating to bail.”

21. It  was  submitted  that  the  decisions  in  Aslam  Babalal  Desai  v  State  of

Maharastra18 is an authority for the proposition that there can be no cancellation of

the bail granted, or deemed to be granted, under Section 167 (2) merely upon the later

filing of a charge sheet. The court had observed as follows, in Aslam Babalal Desai

(supra) in this context:

“It will thus be seen that once an accused person has been released on bail by the thrust of the proviso to Section 167 (2), the mere fact that subsequent to his release a challan has been filed is not sufficient to cancel his  bail.  In such a situation his bail  can be cancelled only if considerations germane to cancellation of bail under Section 437 (5)  or for that matter Section 439 (2) exist. That is because the release of a person under Section Section 167 (2) is equated to his release under Chapter XXXIII of the Code.”

It was submitted that therefore, the mere filing of a charge sheet per se cannot be an

event which compels an accused who has the benefit of anticipatory bail, to surrender

and  seek  regular  bail.  The  grounds  for  cancellation  of  bail  are  to  be  made  out,

separately.

22. Mr. K.V. Vishwanathan, learned Senior Counsel emphasised that the exercise of

power under Section 438 is identical to the exercise of power under Sections 437 and

439 Cr.  P.C.   Consequently,  pre arrest bail  granted in anticipation of arrest-  under

Section 438, in his submission, operates like any other order of bail i.e. till an order of

conviction or affirmative direction is passed to arrest the individuals, is made under

ten years; (ii) sixty days, where the investigation relates to any other offence, and,

on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub- section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;..”

18 1992 (4) SCC 272

81

Section 439 (2). Mr. Vishwanathan highlighted that Section 438 has an intrinsic link

with Article 21 in as much as it seeks to balance state’s power and responsibility to

investigate offence, with its duty to protect individual rights and liberties of citizens.

It was submitted that Article 21 raises the presumption of innocence in favour of other

accused; consequently, this has to be at the centre of every consideration of penal

statutes and their interpretation.  

23. It was also submitted that Section 438 being part of procedure established by

law  is  to  be  construed  in  a  fair,  just  and  reasonable  manner.   Learned  counsel

reiterated that this was what the Court highlighted in Sibbia.  Mr. Vishwanathan, after

outlining the background of Section 438 - in the context of the observations of the 41st

Law Commission Report submitted that those comments should also be considered in

the light of the observations made in the Report of the Committee on Reforms of the

Criminal Justice System by Dr. Justice V.S. Malimath.  Reliance on para 7.26.3.19  

24. It was urged that the power of arrest with the police is under Section 41 of the

CrPC. That provision is in two parts. One, relating to offences in which the maximum

punishment can extend to imprisonment for seven year. Second, relating to offences in

which the maximum punishment can extend to imprisonment to above seven years or

death penalty. Though they have different conditions and thresholds, in both cases it is

clear from a bare reading of the section that the power of arrest cannot be exercised in

ever  FIR  that  is  registered  u/s  154  Cr.PC.  This  power  is  circumscribed  by  the

conditions laid down in this section. Moreover, this principle that the power of arrest

is not required to be exercised in every case was recognized in the case of Joginder

Kumar v. State of U.P20; Lalitha Kumari v. State of U.P21;  and  Arnesh Kumar v. State

19 The  Report  remarked  –  after  considering  3rd Report  of  the  National  Police Commission that the  “power of arrest was one of the chief sources of corruption in the police.  The report suggested that by and large nearly 60% of the arrests were either unnecessary or unjustified and that such unjustified police action accounted for 43.2% of the expenditure of the prison department”.

20 1994 (4) SCC 260

21 2014 (2) SCC 1

82

of Bihar.22  This Court in M.C. Abraham v. State of Maharastra23 held that it was not

mandatory for the police to arrest a person only because his/her anticipatory bail had

been  rejected.  It  was  further  stated  that  the  power  of  arrest  is  then  further

circumscribed by Section 438. As recognized by the Law Commission, there are cases

where the power of arrest is not required or allowed to be exercised. Exercising power

of arrest in such cases would be a grave violation of a person’s right and liberty. Such

exercise of power would amount to misuse of Section 41. The check on the power of

arrest and custody provided by Sections 437 or 439 is limited as the check is only post

facto.  By then the person arrested has already suffered the trauma and humiliation of

arrest.

25. Counsel submitted to strike a further balance between the power of arrest and

the rights of the accused, the power under Section 438 is specifically given to the

Court of Session and the High Court so as to ensure that this judicial intervention is

done at the supervisory level and not at the magisterial level. It is in this light that the

two questions raised in the present reference need to be addressed. It was urged that a

bare reading of Section 438 shows that there is nothing in the language of the section

which goes to show that the pre-arrest bail granted under this section has to be time-

bound.  The  position  is  the  same as  in  Sections  437 and 439.  Counsel  pointed  to

Section 438 (3) and submitted that two important aspects of this provision highlight

the understanding the scheme of the Code:

a)  A person in whose favour a pre-arrest bail order has been made under

Section 438 has to first be arrested. Such person is then released on bail on the

basis of the pre-arrest bail order.  For such release the person has to comply

with the requirement of Section 441 of giving a bond or surety; and

b) Where the magistrate taking cognizance u/s 204 is of the view that a

warrant is required to be issued at the first instance, such magistrate is only

empowered to issue only a bailable warrant and not a non-bailable warrant.  

22 2014 (8) SCC 273

23 2003 (2) SCC 649

83

26. This curtailment of power of the magistrate clearly shows Parliamentary intent

that one who is granted relief under Section 438 ought not to be arrested at the stage

of  cognizance  because  of  the  said  pre-arrest  bail  order.  Considering  this  express

provision, no other interpretation can be given to the said section. The second question

referred here squarely covered by this sub-section.  This order passed under Section

438, is a pre-arrest direction (to release on bail, in the event of arrest), is subject to the

power granted to the Court of Session and the High Court under Section 439(2) Cr.

P.C.   It is clear from the provision that a bail granted under Section 438 is further

governed by Section 439(2) which gives the power to the Court of Session or the High

Court to direct the arrest of the accused at any time.  This ensures that through judicial

intervention the balance between the two competing principles can again be revisited

if the need arises.  In other words, considering any relevant change in circumstances

the prosecution can seek the arrest of the accused.  The only difference is that the

power of arrest in these cases is exercised only after judicial scrutiny. This provision

envisions that the Code presupposes that orders once passed under Sections 438 and

439 will  continue till  a contrary order is  passed under Section 439(2).   The order

passed under Sections 438 or 439 are not and temporary or time bound.  Therefore, a

person enjoying the benefit of orders under these sections can be taken into custody

only when a specific direction is  passed under Section 439(2).   This  direction for

arrest under Section 439 (2) is different from seeking cancellation of bail.   

27. It was argued that undoubtedly violation of a condition imposed in an order

passed  under  Section  438 can  lead  to  a  direction  of  arrest  under  Section  439(2).

However,  the  scope  of  Section  439(2)  is  not  limited  to  only  cancellation  of  bail.

Counsel stated that this proposition of law was considered by this court in  Pradeep

Ram v.  State of  Jharkhand24.   In this  case,  this  court  while considering an earlier

judgment in Mithabhai Pashabhai Patel v. State of Gujarat25,   held that by virtue of

Sections 437(5) and 439(2), a direction to take a person into custody could be passed

despite his being released on bail, by a previous order.  The court held that under

Sections  437(5)  and  439(2)  a  person  could  be  directed  to  be  taken  into  custody

24 2019 SCC Online (SC) 825

25 2009 (6) SCC 332,

84

without necessarily cancelling his earlier bail.  The difference between cancellation of

bail  and  a  direction  to  take  a  person  into  custody  under  Section  439(2)  was

recognised.  It was also held in this case that if a graver offence is added to the FIR or

to the case after the person has been granted bail, a direction under Section 439(2) or

437(5) is required before such person can be arrested again for the new offences added

to the case. Therefore, this court recognized the need for court’s supervision after the

bail had been granted.

28. Mr.  Hiren  Raval,  learned  amicus  curiae,  highlighted  that  while  there  are

passages in Sibbia (supra), which support the arguments of the petitioners, that orders

under Section 438 can be unconditional and not limited by time, the court equally

struck a note of caution, and wished courts to be circumspect while making orders of

anticipatory bail. In this regard, learned senior counsel highlighted paragraphs 42 and

43 of the decisions in Sibbia.  

29. Elaborating on his submissions, the  amicus  submitted that whether to impose

any conditions or limit the order of anticipatory bail in point of time undoubtedly falls

within the discretion of the court seized of the application. He however submitted that

this  discretion  should  be  exercised  with  caution  and  circumspection.  Counsel

submitted that there could be three situations when anticipatory bail applications are to

be considered: one, when the application is filed in anticipation of arrest, before filing

FIR; two, after filing FIR, but before the filing of the charge sheet; and three, after

filing charge sheet. It was submitted that as a matter of prudence and for good reasons,

articulated in  Salauddin, K.L. Verma, Adri Dharan Das and decisions adopting their

reasoning, it would be salutary and in public interest for courts to impose time limits

for the life of orders of anticipatory bail. Counsel submitted that if anticipatory bail is

sought before filing of an FIR the courts should grant relief, limited till the point in

time, when the FIR is filed. In the second situation, i.e. after the FIR is filed, the court

may limit the grant of anticipatory bail till the point of time when a charge sheet is

filed; in the third situation, if the application is made after filing the charge sheet, it is

up to the court, to grant or refuse it altogether, looking at the nature of the charge.

Likewise, if arrest is apprehended, the court should consider the matter in an entirely

discretionary manner, and impose such conditions as may be deemed appropriate.  

85

30. Mr. Raval submitted that in every contingency, the court is not powerless after

the grant of an order of anticipatory bail; it retains the discretion to revisit the matter if

new material relevant to the issue, is discovered and placed on record before it. He

highlighted Section 439(2) and argued that that provision exemplified the power of the

court  to modify its  previous approach and even revoke altogether an earlier order

granting anticipatory bail. It was submitted that the bar under Section 362 of the Code

(against  review  of  an  order  by  a  criminal  court)  is  inapplicable  to  matters  of

anticipatory bail, given the nature and content of the power under Section 439(2).  

31. Mr. Raval also submitted that power under Section 438 cannot be exercised to

undermine  any  criminal  investigation.  He  highlighted  the  concern  that  an

unconditional  order  of  anticipatory  bail,  would  be  capable  of  misuse  to  claim

immunity in a blanket manner,  which was never the intent of Parliament.  Counsel

submitted that besides, the discretion of courts empowered to grant anticipatory bail

should be understood as balancing the right to liberty and the public interest in a fair

and objective investigation. Therefore, such orders should be so fashioned as to ensure

that accused individuals co-operate during investigations and assist in the process of

recovery  of  suspect  or  incriminating  material,  which  they  may lead  the  police  to

discover or recover and which is admissible, during the trial,  per  Section 27 of the

Evidence  Act.  He  submitted  that  if  these  concerns  are  taken  into  account,  the

declaration of law in Mhetre – particularly in Paras 122 and 123 that no condition can

be imposed by court, in regard to applications for anticipatory bail, is erroneous; it is

contrary to Para 42 and 43 of the declaration of law in  Sibbia’s  case (supra). It was

emphasized that ever since the decision in Salauddin and other subsequent judgments

which followed it,  the practise of courts generally was to impose conditions while

granting anticipatory bail: especially conditions which required the applicant/ accused

to apply for bail after 90 days, or surrender once the charge sheet was filed, and apply

for regular bail. Counsel relied on Section 437(3) to say that the conditions spelt out in

that  provision  are  to  be  considered,  while  granting  anticipatory  bail,  by  virtue  of

Section 438(2).   

32. Mr.  Tushar  Mehta,  learned  Solicitor  General  and  Mr.  Vikramjit  Banerjee,

learned Additional Solicitor General, submitted that the decision in Mhetre (supra) is

86

erroneous and should be overruled. It was submitted that though Section 438 does not

per  se  pre-suppose  imposition  of  conditions  for  grant  of  anticipatory  bail,

nevertheless, given Section 438(2) and Section 437(3), various factors must be taken

into account. Whilst exercising power to grant (or refuse) a direction in the nature of

anticipatory bail, the court is bound to strike a balance between the individual's right

to personal freedom and the right of investigation of the police. For this purpose, in

granting relief under  Section 438(1),  appropriate conditions can be imposed under

Section  438(2)  to  ensure  an  unimpeded  investigation.  The  object  of  imposing

conditions is to avoid the possibility of the person or accused hampering investigation.

Thus,  any  condition,  which  has  no  reference  to  the  fairness  or  propriety  of  the

investigation  or  trial,  cannot  be  countenanced  as  permissible  under  the  law.

Consequently, courts should exercise their discretion in imposing conditions with care

and restraint.

33. The  law presumes  an  accused to  be  innocent  till  his  guilt  is  proved.  As  a

presumably innocent person, he is entitled to all the fundamental rights including the

right to liberty guaranteed under Article 21 of the Constitution. Counsel stated that at

the same time, while granting anticipatory bail, the courts are expected to consider and

keep  in  mind  the  nature  and  gravity  of  accusation,  antecedents  of  the  applicant,

namely,  about  his  previous involvement  in such offence and the possibility of the

applicant to flee from justice. It  is also the duty of the Court to ascertain whether

accusation has been made with the object of injuring or humiliating him by having

him so arrested. It is needless to mention that the Courts are duty bound to impose

appropriate conditions as provided under Section 438(2) of the Code.

34. Counsel argued that there is no substantial difference between Sections 438 and

439 of the Code as regards appreciation of the case while granting or refusing bail.

Neither anticipatory bail nor regular bail, however, can be granted as a matter of rule.

Being an extraordinary privilege, should be granted only in exceptional cases. The

judicial discretion conferred upon the court must be properly exercised after proper

application of mind to decide whether it is a fit case for grant of anticipatory bail. In

this regard, counsel relied on Jai Prakash Singh v State of Bihar26. Counsel relied on

26 2012 (4) SCC 325

87

State of M.P. & Anr. v Ram Kishna Balothia & Anr.27 where this court considered the

nature of the right of anticipatory bail and observed that:

“We find it  difficult  to accept  the contention that  Section 438 of  the Code of Criminal Procedure is an integral part of Article 21. In the first place, there was no provision similar to Section 438 in the old Code of Criminal Procedure......Also anticipatory hail cannot he granted as a matter of right. It is essentially a statutory right conferred long after the coming into force of  the Constitution.  It  cannot  he considered as an essential  ingredient  of  Article  21  of  the  Constitution.  and  its  non- application  to  a  certain  special  category  of  offences  cannot  he considered as violative of Article 21.”

35. The decisions in Savitri Agarwal v. State of Maharashtra & Anr28, and Sibbia

were referred to, to argue that before granting an order of anticipatory bail, the court

should be satisfied that the applicant seeking it has reason to believe that he is likely to

be arrested for a non-bailable offence and that belief must be founded on reasonable

grounds. Mere "fear" is not belief; it is insufficient for an applicant to show that he has

some sort of vague apprehension that someone is going to accuse him, for committing

an offence pursuant to which he may be arrested. An applicant’s grounds on which he

believes  he  may  be  arrested  for  a  non-bailable  offence,  must  be  capable  of

examination by the Court objectively. Specific events and facts should be disclosed 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. It was pointed out

that the provisions of Section 438 cannot be invoked after the arrest of the accused.

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. The following passages in  Savitri Agarwal  (supra) were relied

upon:

“24. While cautioning against imposition of unnecessary restrictions on the scope of the section, because, in its opinion, overgenerous infusion of constraints and conditions, which were not to be found in Section 438 of the Code, could make the provision constitutionally vulnerable, since the right of personal freedom, as enshrined in Article 21 of the Constitution,  cannot  be  made  to  depend  on  compliance  with

27 1995 Supp (3)SCC 419

28 2009 (8) SCC 325

88

unreasonable  restrictions,  the  Constitution  Bench  laid  down  the following guidelines,  which the  courts  are required to keep in mind while dealing with an application for grant of anticipatory bail:

********** ****************

(iv)  No blanket order of bail should be passed and the court which grants anticipatory bail must take care to specify the offence or the offences in respect of which alone the order will be effective. While granting  relief  under  Section  438(1)  of  the  Code,  appropriate conditions can be imposed under Section 438(2) so as to ensure an uninterrupted investigation. One such condition 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  recovery. Otherwise, such an order can become a charter of lawlessness and a weapon to stifle prompt investigation into offences which could not possible be predicated when the order was passed.

*********          **************

(ix)  Though it is not necessary that the operation of an order passed under Section 438(1) of the Code be limited in point of time but the court may, if there are reasons for doing so, limit the operation of the order to a short period until after the filing of FIR in respect of the matter  covered by the  order.  The applicant  may,  in  such cases,  be directed to obtain an order of bail under Section 437 or 439 of the Code within a reasonable short period after the filing of the FIR.”

36. It was also argued on behalf of the Govt of NCT- and the Union, that this court

had expressed a serious concern, time and again, that if accused or applicants who

seek  anticipatory  bail  are  equipped  with  an  unconditional  order  before  they  are

interrogated by the police it would greatly harm the investigation and would impede

the  prospects  of  unearthing  all  the  ramifications  involved  in  a  conspiracy.  Public

interest also would suffer as consequence. Reference was invited to  State of A.P. v.

Bimal Krishna Kundu29 in this context. Likewise, attention of the court was invited to

Muraleedharan v. State of Kerala30 which held that “Custodial interrogation of such

an accused is indispensably necessary for the investigating agency to unearth all the

links involved in the criminal conspiracies committed by the person which ultimately

led to the capital tragedy.” It was highlighted that statements made during custodial

29 1997 (8) SCC 104

30 2001 (4) SCC 638

89

interrogation are qualitatively more relevant to those made otherwise.  Granting an

unconditional  order  of  anticipatory  bail  would  therefore  thwart  a  complete  and

objective investigation.

37. Mr. Aman Lekhi, learned Additional Solicitor General, urged that the general

drift  of  reasoning  in  Sibbia  was  not  in  favour  of  a  generalized  imposition  of

conditions- either as to the period (in terms of time, or in terms of a specific event,

such  as  filing  of  charge  sheet)  limiting  the  grant  of  anticipatory  bail.  It  was

submitted that  the text of  Section 439(2) applied  per se  to all  forms of orders-

including  an  order  or  direction  to  release  an  applicant  on  bail  (i.e.  grant  of

anticipatory bail), upon the court’s satisfaction that it is necessary to do so. Such

order (of cancellation, under Section 439(2) or direction to arrest) may made be

where the conditions made applicable at the time of grant of relief, are violated or

not complied with, or where the larger interests of a fair investigation necessitate it.

Analysis and Conclusions

Re Point No 1: Whether the protection granted to a person under Section 438, CrPC should be limited to a fixed period so as to enable the person to surrender before the Trial Court and seek regular bail

38. The concept of bail,  i.e.  preserving the liberty of citizen – even accused of

committing offences, but subject to conditions, dates back to antiquity. Justinian I in

the  collections  of  laws  and  interpretations  which  prevailed  in  his  times,  Codex

Justinianus  (or  ‘Code Jus’) in Book 9 titled Title 3(2) stipulated that “no accused

person shall under any circumstances, be confined in prison before he is convicted”.

The second example of a norm of the distant past is the Magna Carta which by clause

44 enacted that “people who live outside the forest need not in future appear before

the Royal Justices of the forest in answer to the general summons unless they are

actually involved in proceedings or are sureties for someone who has been seized for

a  forest  offence.”  Clear  Parliamentary  recognition  of  bail  took  shape  in  later

enactments in the UK through the Habeas Corpus Act 1677 and the English Bill of

90

Rights,  1689 which prescribed that  “excessive  bail  ought  not  to  be  required,  nor

excessive fines imposed, nor cruel and unusual punishments inflicted”.  

39. Bail  ipso  facto  has  not  been  defined  under  the  Code.  It  is  now  widely

recognized as a norm which includes the governing principles enabling the setting of

accused person on liberty  subject  to  safeguards,  required  to  make  sure  that  he  is

present whenever needed. The justification for bail (to one accused of commission or

committing  a  crime  is  that  it  preserves  a  person  who  is  under  cloud  of  having

transgressed law but not convicted for it, from the rigors of a detention.

40. Section 438 of the Cr.PC provides for the issuance of directions for the grant of

bail to a person apprehending arrest. The Cr.PC of 1973 replaced the old code of 1898.

The old code did not provide for any corresponding provision to Section 438 of the

code of 1973. Under the old code, there was a sharp difference of opinion amongst the

various High Courts on the question as to whether courts had the inherent power to

pass  an order  of  bail  in  anticipation of  arrest.  The predominant  position  was that

courts did not have such a power. Subsequently, the need for various amendments to

make the code more comprehensive resulted in the enactment of the Code of Criminal

Procedure  in  1973.  Interestingly,  Section  438  does  not  expressly  use  the  term

“anticipatory bail”;  its language instead empowers the concerned to court  to  issue

directions for grant of bail.

41. The  Law Commission  of  India,  in  its  41st Report  of  1969,  noted  that  the

necessity  for  granting  anticipatory  bail  arises  mainly  due  to  influential  persons

attempting to implicate their rivals in false cases, or disgracing them by getting them

detained in jail. The report further noted that 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  to  be  no

justification to require him first to submit to custody, remain in prison for some days

and then apply for bail. The report recommended that a provision be included for the

direction to grant bail in such cases, and that this power vest in the High Courts and

Courts of Session only. The report, however, did not include the conditions for grant

of anticipatory bail in the suggested language for the provision. Certain conditions that

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courts  may include  were,  however  included  in  the  provision  that  was  enacted  as

Section 438 of the Cr.PC, 1973.  

42. The term ‘anticipatory bail’ finds no place in the Cr.PC itself but was used by

the Law Commission of India in its 41st Report. The term was used to convey that it

was an application for bail in anticipation of arrest, i.e., before the arrest itself is made.

Grant of bail, according to Wharton’s Law Lexicon, and as noticed in Sibbia (supra),

means to “set at liberty a person arrested or imprisoned, on security being taken for

his appearance”. Sibbia, observed thus:

“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 bail, it is a pre-arrest legal process which directs that if the person in whose favour it is issued is thereafter arrested on the accusation in respect of which the direction is issued, he shall be released on bail. Section 46(1) of the CrPC which deals with how arrests  are  to  be  made,  provides  that  in  making the  arrest,  the police officer or other person making the arrest "shall actually touch or confine  the  body  of  the  person  to  be  arrested,  unless  there  be  a submission to the custody by word or action". A direction Under Section 438  is  intended  to  confer  conditional  immunity  from this  'touch'  or confinement.

43. In  Sibbia (supra),  this Court considered the specific question of whether the

power to grant anticipatory bail under Section 438 is limited to contingencies such as

the  possibility  that  the  police  may use  their  investigative  powers  to  humiliate  the

person sought to be arrested, or pervert the course of justice and abuse their powers of

investigation. One of the arguments raised in Sibbia, as also in the present case, was

that the power to grant anticipatory bail ought to be left to the discretion of the court

concerned, depending on the facts and circumstances of each case. The State, on the

other hand, argued that the grant of anticipatory bail should at least be conditional

upon the bail applicant showing that he is likely to be arrested for an ulterior motive -

that  the  proposed  charges  are  baseless  or  motivated  by  malafides.  The  State  also

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argued that anticipatory bail is an extraordinary remedy and therefore, whenever it

appears that the proposed accusations are prima facie plausible, the applicant should

be left to the ordinary remedy of applying for bail under Section 437 or Section 439 of

the Cr.PC, after being arrested.  

44. Counsel for the appellants in  Sibbia, on the other hand, argued that since the

denial of bail amounts to deprivation of personal liberty, courts should lean against the

imposition of unnecessary restrictions on the scope of Section 438, when no such

restrictions are prescribed by the legislature under that provision. The Court observed

that Section 438(1) is couched in broad and unqualified terms and was of the opinion

that such broad language ought not to be infused with restraints and conditions which

the  legislature  itself  did  not  think  proper  or  necessary  to  impose.  The  court  laid

emphasis on the primacy of the presumption of innocence in criminal jurisprudence,

and observed that Section 438 was not enacted on a clean slate, but rather within the

context of the existing provisions, Sections 437 (dealing with the power of courts

other than the Court of Session and the High Court to grant bail in nonbailable cases)

and Section 439 (which deals with the  "special powers" of the High Court and the

Court  of  Session regarding bail).  In the light of the relevant extracts  of  Sibbia,  it

would  now be  worthwhile  to  recount  the  relevant  observations  on  the  issue.  The

discussion and conclusions in Sibbia are summarized as follows:

45. (i)  Grant  of  an  order  of  unconditional  anticipatory  bail  would  be  “plainly

contrary to the very terms of Section 438.” Even though the terms of Section 438(1)

confer discretion, Section 438(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.”

(ii) Grant of an order under Section 438(1) does not per se hamper investigation of an

offence; Section 438(1)(i) and (ii) enjoin that an accused/applicant should co-operate

with  investigation.  Sibbia  (supra)  also  stated  that  courts  can  fashion  appropriate

conditions governing bail, as well. One condition can be that if the police make out a

case  of  likely  recovery  of  objects  or  discovery  of  facts  under  Section  27  (of  the

Evidence Act, 1872), the accused may be taken into custody. Given that there is no

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formal method prescribed by Section 46 of the Code if recovery is made during a

statement (to the police) and pursuant to the accused volunteering the fact, it would be

a case of recovery during “deemed arrest” (Para 19 of Sibbia).

(iii) The accused is not obliged to make out a special case for grant of anticipatory

bail; reading an otherwise wide power would fetter the court’s discretion. Whenever

an application (for relief under Section 438) is moved, discretion has to be always

exercised judiciously, and with caution, having regard to the facts of every case. (Para

21, Sibbia).

(iv)  While the power of granting anticipatory bail is not ordinary, at the same time, its

use is not confined to exceptional cases (Para 22, Sibbia).

(v) It is not justified to require courts to only grant anticipatory bail in special cases

made out by accused, since the power is extraordinary, or that several considerations –

spelt out in Section 437- or other considerations, are to be kept in mind. (Para 24-25,

Sibbia).

(vi) Overgenerous introduction (or reading into) of constraints on the power to grant

anticipatory bail would render it Constitutionally vulnerable. Since fair procedure is

part of Article 21, the court should not throw the provision (i.e. Section 438) open to

challenge “by reading words in it which are not to be found therein.” (Para 26).

(vii) There is no “inexorable rule” that anticipatory bail cannot be granted unless the

applicant is the target of  mala fides.  There are several relevant considerations to be

factored in, by the court, while considering whether to grant or refuse anticipatory

bail. 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 accused’s presence

not being secured during trial; a reasonable apprehension that the witnesses might be

tampered with, and “the larger interests of the public or the state” are some of the

considerations. A person seeking relief (of anticipatory bail) continues to be a man

presumed to be innocent. (Para 31, Sibbia).

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(viii)  There can be no presumption that any class of accused- i.e. those accused of

particular crimes, or those belonging to the poorer sections, are likely to abscond.

(Para 32, Sibbia).

(ix)    Courts  should  exercise  their  discretion  while  considering  applications  for

anticipatory bail (as they do in the case of bail). It would be unwise to divest or limit

their  discretion by prescribing  “inflexible rules of  general application.”. (Para  33,

Sibbia).

(x)    The  apprehension  of  an  applicant,  who  seeks  anticipatory  bail  (about  his

imminent or possible arrest) should be based on reasonable grounds, and rooted on

objective facts or materials, capable of examination and evaluation, by the court, and

not based on vague un-spelt apprehensions. (Para 35, Sibbia).

(xi) The grounds for seeking anticipatory bail should be examined by the High Court

or Court of Session, which should not leave the question for decision by the concerned

Magistrate. (Para 36, Sibbia).

(xii)  Filing of FIR is not a condition precedent for exercising power under Section

438; it  can be done on a showing of  reasonable belief of  imminent arrest  (of the

applicant). (Para 37, Sibbia).

(xiii)  Anticipatory bail  can be granted even after  filing of  an FIR- as long as the

applicant is not arrested. However, after arrest, an application for anticipatory bail is

not maintainable. (Para 38-39, Sibbia).

(xiv)  A blanket  order  under  Section  438,  directing  the  police  to  not  arrest  the

applicant,  “wherever arrested and for whatever offence” should not be issued. An

order based on reasonable apprehension relating to specific facts (though not spelt out

with exactness) can be made. A blanket order would seriously interfere with the duties

of the police to enforce the law and prevent commission of offences in the future.

(Para 40-41, Sibbia).

(xv) The public prosecutor should be issued notice, upon considering an application

under Section 438; an ad interim order can be made. The application “should be re-

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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 until 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.”  (Para 42,

Sibbia).

46. It  is  quite  evident,  therefore,  that  the  pre-dominant  thinking  of  the  larger,

Constitution Bench, in Sibbia (supra), was that given the premium and the value that

the  Constitution  and Article  21  placed on liberty-  and given that  a  tendency was

noticed, of harassment – at times by unwarranted arrests, the provision for anticipatory

bail was made. It was not hedged with any conditions or limitations- either as to its

duration, or as to the kind of alleged offences that an applicant was accused of having

committed. The courts had the discretion to impose such limitations (likeco-operation

with investigation, not tampering with evidence, not leaving the country etc) as were

reasonable and necessary in  the peculiar  circumstances  of  a given case.  However,

there was no invariable or inflexible rule that the applicant had to make out a special

case,  or  that  the  relief  was  to  be  of  limited  duration,  in  a  point  of  time,  or  was

unavailable for any particular class of offences.

47. At this stage, it would be essential to clear the air on the observations made in

some of the later cases about whether Section 438 is an essential element of Article

21. Some judgments, notably Ram Kishna Balothia & Anr. (supra) and Jai Prakash

Singh v State of Bihar31 held that the provision for anticipatory bail is not an essential

ingredient of Article 21, particularly in the context of imposition of limitations on the

discretion of the courts while granting anticipatory bail, either limiting the relief in

31 2012 (4) SCC 379

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point of time, or some other restriction in respect of the nature of the offence, or the

happening of an event.  We are afraid,  such observations are contrary to the broad

terms of the power declared by the Constitution Bench of this court in Sibbia (supra).

The larger bench had specifically held that an “over-generous infusion of constraints

and conditions which are not to be found in Section 438 can make its  provisions

constitutionally vulnerable since the right to personal freedom cannot be made to

depend on compliance with unreasonable restrictions.”  

48. In Gudikanti Narasimhulu v. Public Prosecutor32  this court observed that “. … Personal liberty, deprived when bail is refused, is too precious a value of  our  constitutional  system recognised under  Article  21 that  the  curial power to negate it is a great trust exercisable, not casually but judicially, with lively concern for the cost to the individual and the community.  To glamorise impressionistic orders as discretionary may, on occasions, make a  litigative  gamble  decisive  of  a  fundamental  right.  After  all,  personal liberty of  an accused or convict  is  fundamental,  suffering lawful eclipse only in terms of “procedure established by law”.  

49. The  reason  for  enactment  of  Section  438  in  the  Code  was  Parliamentary

acceptance of the crucial underpinning of personal liberty in a free and democratic

country. Parliament wished to foster respect for personal liberty and accord primacy to

a  fundamental  tenet  of  criminal  jurisprudence,  that  everyone  is  presumed  to  be

innocent till he or she is found guilty. Life and liberty are the cherished attributes of

every individual. The urge for freedom is natural to each human being. Section 438 is

a procedural provision concerned with the personal liberty of each individual, who is

entitled to the benefit of the presumption of innocence. As 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 not imposed by

the legislature. In Sibbia, it was observed that:

“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 and all kinds of accusations, likely or unlikely.”  

50. The interpretation of Section 438- that it  does not encapsulate  Article 21, is

erroneous. This court is of the opinion that the issue is not whether Section 438 is an

intrinsic  element  of  Article  21:  it  is  rather  whether  that  provision  is  part  of  fair 32 1978 (1) SCC 240

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procedure. As to that, there can be no doubt that the provision for anticipatory bail is

pro-liberty and enables one anticipating arrest, a facility of approaching the court for a

direction that he or she not be arrested; it was specifically enacted as a measure of

protection against arbitrary arrests and humiliation by the police, which Parliament

itself recognized as a widespread malaise on the part of the police.  

51. The forty first and forty-eight reports of the Law Commission were noticed by

this court in  Sibbia (supra).  Thereafter, the Law Commission, in its 154th report had

occasion to deal  with the subject; it  recommended no substantial  change,  - except

procedural additions to Section 438 and observed as follows:

“18. In the various workshops diverse views were expressed regarding the retention or deletion of the provision of anticipatory bail.  One view is that it is being misused by affluent and influential sections of accused in society and hence, be deleted from the Code. The other view is that it is a salutary provision  to  safeguard  the  personal  liberty  and  therefore  be  retained. Misuse of the same in some instances by itself cannot be a ground for its deletion. However, some restraints may be imposed in order to minimise such misuse. We are, however, of the opinion that the provision contained under  S.  438 regarding anticipatory  bail should remain  in  the  Code but subject  to  the  amendments  suggested in  cl.  43 of  the  Code of  Criminal Procedure (Amendment) Bill, 1994 which lays down adequate safeguards.” 33  

33 The relevant extract of Clause 43 of the proposed 1994 amendment read as follows:

“In S. 438 of the principal Act for sub-s. (1), the following sub-sections shall be substituted, namely:  

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

(i) the nature and gravity of the accusation;

(ii) the antecedents of the applicant including the fact as to whether he 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 objection of injuring or humiliating the applicant by having him so arrested,

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Interestingly,  the  177th report  of  the  Law Commission lamented that  the power of

arrest was being misused by police in a widespread manner.34

52. The persistence of the phenomena unwarranted arrests was sharply criticised by

this court in Arnesh Kumar(supra), saying that the approach of the police continued to

be colonial despite six decades of independence, that the power of arrest is  

“…is largely considered as a tool of harassment, oppression and surely not considered a friend of public. The need for caution in exercising the

either reject the application forthwith or issue an interim order for the grant of anticipatory bail:

Provided that,  where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub-section or has rejected the application for grant of anticipatory bail, it shall be open to an officer-in-charge of a police  station  to  arrest,  without  warrant  the  applicant,  if  there  are  reasonable grounds for such arrest.

(1-A) Where the Court grants an interim order under sub-s. (1), it shall forthwith cause a notice being not less than seven days notice, together with a copy of such order to be served on the Public Prosecutor and the Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court.

(1-B) The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court,  if  on  an  application  made  to  it  by  the  Public  Prosecutor,  the  Court considers such presence necessary in the interest of justice.”

34 One hundred and seventy seventh [177th]  Report,  submitted in December 2001 (Law Commission of India, 177th Report, Annexure-III para1.8 said that:

“Misuse of power of arrest:- Notwithstanding the safeguards contained in the Code of Criminal Procedure and the Constitution referred to above, the fact remains that the power of arrest is wrongly and illegally exercised in a large number of cases all over the  country.  Very  often  this  power  is  utilized  to  extort  monies  and other  valuable property or at the instance of an enemy of the person arrested. Even in case of civil dispute, this power is being resorted to on the basis of a false allegation against a party to a civil dispute at the instance of his opponent. The vast discretion given by the CrPC to arrest  a person even in the case of a bailable offence (not only where the bailable offence is cognizable but also where it  is  non-cognizable) and the further power to make preventive arrests (e.g. under Section151 of the CrPC and the several city police enactments), clothe the police with extraordinary power which can easily be abused. Neither there is any inhouse mechanism in the police department to check such misuse or abuse nor does the complaint of such misuse or abuse to higher police officers bear fruit except in some exceptional cases. We must repeat that we are not dealing  with  the  vast  discretionary  powers  of  the  members  of  a  service  which  is provided with firearms, which are becoming more and more sophisticated with each

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drastic power of arrest has been emphasized time and again by Courts but has not yielded desired result. Power to arrest greatly contributes to its arrogance so also the failure of the Magistratcy to check it.   Not only this, the power of arrest is one of the lucrative sources of police corruption. The attitude to arrest first and then proceed with the rest is despicable. It has become a hand tool to the police officers who lack sensitivity or act with oblique motive.”

The latest report of the Law Commission35 notes that “67 per cent of the prison

population is awaiting trial in India”. Therefore, the need for a provision to ensure

anticipatory bail, is as crucial, as it was at the time of its introduction, and at the time

Sibbia (supra) was decided.   

53. Various  reasons-  given in  judgments,  rendered after  Sibbia (supra),  starting

with  Salauddin  (supra),  have  highlighted  that  anticipatory  bail  orders  have  to  be

constrained by conditions, notably with reference to time (i.e. three months, etc) or till

the happening of a certain event. The reasons, and observations, limiting the duration

of grant of anticipatory bail are outlined below:

(1)  “such anticipatory bail orders should be of a limited duration only and

ordinarily  on  the  expiry  of  that  duration  or  extended  duration  the  court

granting anticipatory bail should leave it to the regular court to deal with the

matter on an appreciation of evidence placed before it after the investigation

has  made  progress  or  the  charge-sheet  is  submitted”. (Saluddin  and  K.L.

Verma, supra).

(2) An order of anticipatory bail can be granted in cases of “serious nature as

for  example  murder”.  Consequently,  its  duration  should  “be  limited  and

ordinarily the Court granting anticipatory bail should not substitute itself for

the  original  Court  which is  expected to  deal  with the  offence.” (Salauddin

[supra])   

passing day (which is technically called a civil service for the purposes of Service Jurisprudence) and whose acts touch upon the liberty and freedom of the citizens of this country and not merely their entitlements and properties.

35 268th Report, 2017.

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(3)  Custodial  interrogation  of “accused  is  indispensably  necessary  for  the

investigating agency”  to unearth materials in criminal conspiracies (Ref.   to

unearth all the links involved in the criminal conspiracies”  (Bimal Krishna

Kundu and Muraleedharan, [supra])

(4) Imposing time limits (till filing of FIR, or filing of charge-sheet etc) would

enable the court- which is seized of the main case and monitors it, to consider the

nature and gravity of the offence, having regard to the fresh materials unearthed

and included as prosecution evidence.  Therefore,  it  would be salutary and in

public interest to require courts to impose time limits for the life of orders of

anticipatory  bail the  event  of  filing  of  FIR  or  charge  sheet,  are  essential

ingredients  to  an order  under Section 438.  (Salauddin,  K.L.  Verma,  and  Adri

Dharan Das). Some decisions have also stressed that economic offences need a

different approach and therefore, anticipatory bail should not be granted readily.36

54. A fuller consideration of the various decisions cited earlier,  especially those

which  emphasized  the  need  to  limit  the  life  of  an  order  of  anticipatory  bail,  are

premised on the understanding that the grant of an unconditional order of bail would

thwart investigation. In the first place, this premise is unfounded, given that  Sibbia

(supra) stated (in para 13, SCC reports) that such an order would be “contrary to the

36 In  P. Chidambaram v. Directorate of Enforcement,  (2019) 9 SCC 24 it was held as

follows:  “However, the court must also keep in view that a criminal offence is not just an

offence against  an individual,  rather  the larger  societal  interest  is  at  stake.  Therefore,  a delicate  balance  is  required  to  be  established  between  the  two rights—safeguarding  the personal liberty of an individual and the societal interest…..  

83. Grant  of  anticipatory  bail  at  the  stage  of  investigation  may  frustrate  the investigating agency in interrogating the accused and in collecting the useful information and also the  materials  which  might  have  been concealed.  Success  in  such interrogation would elude if the accused knows that he is protected by the order of the court. Grant of anticipatory bail,  particularly  in economic offences would definitely hamper the effective investigation. Having regard to the materials said to have been collected by the respondent Enforcement Directorate and considering the stage of the investigation, we are of the view that it is not a fit case to grant anticipatory bail.”

The court cited other previous decisions, i.e. State v. Anil Sharma (1997) 7 SCC 187; Sudhir v. State of Maharashtra 2016 (1) SCC 146; and Directorate of Enforcement v. Hassan Ali Khan (2011) 12 SCC 684.  

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terms” of Section 438; and furthermore, that conditions mentioned in Section 438(2)

could be imposed while granting anticipatory bail. Here, one is conscious of the fact

that the requirement of imposing conditions is not compulsive (noticing the use of the

term “may” which precedes the requirement of imposing conditions). Nevertheless, an

unconditional order, in the sense of an order not even imposing conditions mentioned

in Section 438(2) can impede or hamper investigation,  Sibbia (supra)  held that the

conditions mentioned in that provision should be imposed. This requirement is more a

matter of prudence, while granting relief.  

55. This court cannot lose sight of the fact that the Law Commission’s 41st and 48th

report  focused  on the  need  to  introduce  the  provision  (for  anticipatory  bail)  as  a

preventive, or curative measure, to deal with a particular problem, i.e. unwarranted

arrests. Sibbia (supra) noticed this fact, and also that significantly, Section 438 is not

hedged with any obligation on the court’s power, to impose conditions. That situation

remains unchanged: the provision remains unaltered-at least substantially (barring an

amendment  in 2005 which obliged the issuance of notice to  the public prosecutor

before  issuing  any  order  for  anticipatory  bail)37.  The  203rd Report  of  the  Law

Commission, which reviewed the entire law on the subject and noticed later decisions,

37  The amendment, i.e. Criminal Procedure Code (Amendment) Act, 2005 – which has till

now, not been brought into force, reads as follows:

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

(i)  the nature and gravity of the accusation

(ii) the antecedents of the applicant including the fact as to whether 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.

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such as  Salauddin, Adari Narain Das,  etc, recommended no change in law on this

aspect relating to conditions. In this background, it is important to notice that the only

bar, or restriction, imposed by Parliament upon the exercise of the power (to grant

anticipatory bail) is by way of a positive restriction, i.e. in the case where accused are

alleged  to  have  committed  offences  punishable  under      Section  376(3)  or  Section

376AB or Section 376DA or Section 376DB of the Indian Penal Code. In other words,

Parliament has now denied jurisdiction of the courts (i.e. Court of Session and High

Courts)  from  granting  anticipatory  bail  to  those  accused  of  such  offences.  The

amendment (Code of Criminal Procedure Amendment Act, 2018) introduced Section

438(4)) reads as follows:

"(4) Nothing in this section shall apply to any case involving the arrest of any  person  on  accusation  of  having  committed  an  offence  under  sub- section (3) of section 376 or section 376AB or section 376DA or section 376DB of the Indian Penal Code."

Provided that where the High Court or as the case may be the Court of Session has not passed any interim order under this sub-section or has rejected the application for grant of anticipatory bail it shall be open to an officer in charge of police station to arrest without warrant the applicant on the basis of the accusation apprehended in such application  

(IA) Where the Courts grants an interim order under sub-section (1), it shall forthwith cause a notice being not less than seven days notice, together with the copy of such order to be served on the Public Prosecutor and the Superintendent  of  Police,  with  a  view  to  give  the  Public  Prosecutor  a reasonable opportunity of being heard when the application shall be finally heard by the Court

(IB) The presence of  the applicant seeking anticipatory bail  shall  be obligatory at the time of final hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice.]  

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56. Clearly, therefore, where the Parliament wished to exclude or restrict the power

of courts, under Seciton 438 of the Code, it did so in categorical terms. Parliament’s

omission to restrict the right of citizens, accused of other offences from the right to

seek  anticipatory  bail,  necessarily  leads  one  to  assume  that  neither   a  blanket

restriction can be read into by this court, nor can inflexible guidelines in the exercise

of discretion, be insisted upon- that would amount to judicial legislation.  

57. Turning now to the various concerns that impelled this court in Salauddin, K.L.

Verma,  Sunita  Devi;  Nirmal  Jeet  Kaur  and  Adri  Dharan  Das,  HDFC Bank,  J.J.

Manan (supra) and other decisions which outlined the various concerns and problems

faced by the prosecuting agency, or the police, or that competent courts would be

deprived  of  oversight,  thus,  leading  to  directions  that  courts  should  impose  time

restrictions, or grant temporary or limited bail (e.g. filing of charge sheet etc.), this

court proposes to deal with such reasoning hereafter.  

58. The various reasons which led to the imposition of restrictions or limitations by

the decisions noted previously, hinge upon factors such as: addition of graver offences

which the applicant is alleged to have committed after the grant of anticipatory bail;

unearthing of facts disclosing his or her complicity in serious offences, as for instance,

a conspirator or kingpin; the accused’s non-cooperation in the course of investigation,

(such as, for example, difficulty in securing his person, evasion by him, reluctance to

answer  questions  during  the  investigation or  providing statements  for  purposes  of

recovery of articles in terms of Section 27 of the Evidence Act); involvement in very

serious or grave offences such as murder, kidnapping, causing death under unusual

circumstances and offences which undermine the economy; disclosure of information

that the offence involves large scale fraud and several individuals or victims, and, the

filing of charge-sheet. Each of or all of them put together, in the opinion of the court,

neither hold insurmountable problem, nor are unforeseen situations or not anticipated

in Sibbia (supra).  

59. The  controlling  expressions  under  Section  438(2)  spell  out  three  distinct

conditions, which the court granting anticipatory bail can include as directions. These

are- that the applicant makes himself available for interrogation by police officer, as

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and when required; that  such applicant  should not directly or  indirectly make any

inducement, threat or promise to any person acquainted with the facts of the case so as

to dissuade him from disclosing such facts to the court or to any police officer; a

condition that the person should not leave India without the permission of the court.

Further conditions as may be deemed essential, may also be imposed by the court,

under  Section  437(3).  The  Court  in  Sibbia  (supra)  was  alive  to  the  necessity  of

imposing conditions as is evident from para 13 of its judgment. The court observed

that there was nothing in law which stated that whenever anticipatory bail is granted,

it should be without imposing any of those conditions. Sibbia (supra) went on to state

that such unconditional orders would be plainly contrary to the very terms of Section

438. The court also noted that though couched in discretionary terms, which means

that  the  courts  could impose those conditions,  perhaps  viewed pragmatically,  they

should do so. What this court in  Sibbia (supra) was concerned with, and cautioned

other courts against was that the process of construction and interpretation ought not

to compel the courts to “cut down by reading into the statute conditions which are not

to be found therein.”  

60. The context and nature which Sibbia (supra) considered is that discretion ought

to be exercised by the Full Bench judgment of the Punjab and Haryana High Court

which cautioned that the power to grant anticipatory bail should be used sparingly and

in exceptional cases and that all conditions under Section 437 should be read into in

Section 438.  Furthermore,  the High Court  had required that  an applicant ought to

make out a special case for grant of anticipatory bail; it was also stated that in cases

wherever remand was sought, or a reasonable cause to secure incriminating material

in terms of Section 27 of the Evidence Act could be made out, anticipatory bail ought

not to be granted and that it could not be granted in regard to offences punishable with

death or imprisonment for life unless the court is satisfied that the charge was false or

groundless. The court in  Sibbia (supra) frowned upon imposition of such rules after

interpreting and in the course of the judgment held that the power to grant anticipatory

bail is wide and that the discretion is not limited in the manner that the High Court

suggested. At the same time, this court also emphasized that the discretion had to be

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exercised while granting or refusing to grant in given cases on due application of mind

and in a judicious manner.

61. The imposition of conditions under Section 438(2) with reference to Section

437(3), in the opinion of this court, is enough safeguard for the authorities – including

the police and other investigating agencies, who have to investigate into crimes and

the possible complicity of the applicants who seek such relief. Taking each concern,

i.e. the addition of more serious offences; presence of a large number of individuals or

complainants; possibility of non-cooperation - non-cooperation in the investigation or

the  requirement  of  the  accused’s  statement  to  aid  the  recovery  of  articles  and

incriminating articles in the course of statements made during investigations – it is

noticeable,  significantly,  that  each  of  these  is  contemplated  as  a  condition  and  is

invariably included in every order granting anticipatory bail. In the event of violation

or alleged violation of these, the concerned authority is not remediless; recourse can

be had to Section 438(2) read with Section 437(3). Any violation of these terms would

attract a direction to arrest him. This power or direction to arrest is found in Section

437(5). However, that provision has no textual application to regular bail granted by

the Court of Sessions or High Courts under Section 439 or directions not to arrest, i.e.

order of anticipatory bail under Section 438. Secondly, Section 439(2) which is cast in

wide terms, adequately covers situations when an accused does not cooperate during

the investigation or threatens to,  or intimidates witness[es] or tries  to tamper with

other evidence.  

62. It is important to notice, here that there is nothing in the provisions of Section

438 which suggests that Parliament intended to restrict its operation, either as regards

the time period,  or in terms of the nature  of the offences in  respect  of which,  an

applicant had to be denied bail, or which special considerations were to apply. In this

context, it is relevant to recollect that the court would avoid imposing restrictions or

conditions in a provision in the absence of an apparent or manifest absurdity, flowing

from the plain and literal interpretation of the statute (Ref Chandra Mohan v. State of

Uttar Pradesh & Ors38). In  Reserve Bank of India v. Peerless General Finance and

38 1967 (1) SCR 77

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Investment Co. Ltd. & Ors39, the relevance of text and context  was emphasized in the

following terms:

“Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives  the  colour.  Neither  can  be  ignored.  Both  are  important.  That interpretation  is  best  which  makes  the  textual  interpretation  match  the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then Section by section, Clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the  statute-maker,  provided  by  such  context,  its  scheme,  the  sections, clauses,  phrases  and  words  may  take  colour  and  appear  different  than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each  section,  each  clause,  each  phrase  and  each  word  is  meant  and designed to say as to fit  into the scheme of the entire Act.  No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is  in its place.

63. Likewise,  in  Directorate  of  Enforcement  v  Deepak  Mahajan40 this  court

referred to Maxwell on Interpretation of Statutes, Tenth Edn., to the effect that if the

ordinary meaning and grammatical construction, “leads to a manifest contradiction of

the  apparent  purpose  of  the  enactment,  or  to  some  inconvenience  or  absurdity,

hardship or injustice,  presumably not intended, a construction may be put upon it

which modifies the meaning of the words…”  

64. This court, long back, in State of Haryana & Ors. v. Sampuran Singh & Ors41.

observed that by no stretch of imagination a Judge is entitled to add something more

than what is there in the statute by way of a supposed intention of the legislature. The

cardinal principle of construction of statute is that the true or legal meaning of an

enactment is derived by considering the meaning of the words used in the enactment

in the light of any discernible purpose or object which comprehends the mischief and

its remedy to which the enactment is directed. It is sufficient, therefore to notice that

when Section 438 – in the form that exists today, (which is not substantially different 39 1987 (1) SCC 424

40   1994 (3) SCC 440

41 1975 (2) SCC 810

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from the text of what was introduced when Sibbia was decided, except the insertion of

sub-section (4)) was enacted, Parliament was aware of the objective circumstances

and prevailing facts, which impelled it to introduce that provision, without the kind of

conditions that the state advocates to be intrinsically imposed in every order under it.

65. The  narrower  interpretation  preferred  by  this  Court  -  in  line  of  decisions

starting with Salauddin (supra) highlighting the concerns with respect to the stages of

investigation and enquiry and the nature and seriousness of the offence, in the opinion

of the Court, ought not to  lead one to cutting down the amplitude and the power and

discretion otherwise available with the Courts. The danger of this Court prescribing

the limitations is that they become inflexible rules or edicts incapable of deviation.

Instead, it would be safer to say that where there are circumstances or facts which

pose  peculiar  problems  or  complexities  pointing  to  the  seriousness  of  an  offence

which the accused is implicated in, it is always open to courts (which have to deal

with applications under Section 438) to impose the needed restrictions – be that in

point  of  time  or  at  the  stage  of  investigation  or  enquiry.  Each  of  these  peculiar

conditions may be imposed in the given circumstances of any case, which has those

distinctive or special features. But they should not always be imposed invariably in all

cases. In other words, if this Court were to weave conditions to impose and read into

Section  438  that  are  not  expressly  provided,  the  danger  would  be  that  several

applicants who might otherwise be entitled to relief, would be denied it altogether. For

example, the classification of an offence or a category of offences as one wanting

special treatment where the Courts should not grant relief, would mean that regardless

of the role of the accused and the nature of materials shown (whether adequate or not),

the courts would be rendered powerless and denuded of the otherwise amplitude of

discretion provided by the statute.

66. As regards the concern expressed on behalf of the state and the Union- that

unconditional orders (i.e. those unrelated to a particular time frame) would result in

non-co-operation of the accused, with the investigating officer or authority,  or that

there  would  be  reluctance  to  make  statements  to  the  prosecution,  to  assist  in  the

recovery of  articles that  incriminate the accused (and therefore can be used under

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Section 27, Evidence Act),  this court perceives such views to be vague and based

apparently pre-conceived notions. If there is non-cooperation by an accused – in the

course  of  investigation,  the  remedy  of  seeking  assistance  of  the  court  exists.

Moreover, on this aspect too, Sibbia had envisioned the situation; the court had cited

State of U.P. v Deoman Upadhyaya42, where this court had observed as follows:

“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 to have surrendered himself to the police. 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 in sufficient. A person directly giving to a police officer by word of mouth information which may be used as evidence  against  him,  may  be  deemed to  have  submitted  himself  to  the "custody"  of  the  police  officer  within  the  meaning  of  Section  27 of  the Indian Evidence Act : Legal Remembrancer v Lalit Mohan Singh ((1921) I.L.R. 49 Cal.167), Santokhi Beldar v. King Emperor ((1933) I.L.R. 12 Pat. 241). Exceptional cases may certainly be imagined in which a person may give information without presenting himself before a police officer who is investigating an offence. For instance, he may write a letter and give such information  or  may  send  a  telephonic  or  other  message  to  the  police officer.”  

This view was reiterated and applied in Vallabhdas Liladhar v Asst. Collector

of  Customs43.  The observations  in  Sibbia  (supra)  are  relevant,  and are  reproduced

again, for facility of reference:

“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, person released on bail shall be liable to be taken in police custody for facilitating the discovery. Besides, if and when the occasion arises, it may be possible for the prosecution to claim the benefit of Section 27 of the Evidence  Act  in  regard  to  a  discovery  of  facts  made  in  pursuance  of information  supplied  by  a  person  released  on  bail  by  invoking  the principle stated by this Court in State of U.P. v Deoman Upadhyaya.”   

Therefore,  the  “limited  custody”  or  “deemed  custody”  to  facilitate  the

requirements  of  the  investigative  authority,  would be sufficient  for  the  purpose of

fulfilling  the  provisions  of  Section  27,  in  the  event  of  recovery  of  an  article,  or

42 1961 (1) SCR 14

43 1965 (3) SCR 854

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discovery of a fact,  which is  relatable to a statement made during such event (i.e

deemed custody).  In  such event,  there  is  no question (or  necessity)  of  asking the

accused to separately surrender and seek regular bail.   

67. Now, coming to the instruction in some decisions that anticipatory bail should

not be given, or granted with stringent conditions, upon satisfaction that the accused is

not involved, Sibbia, clearly disapproved the imposition of such restrictions, or ruling

out of certain offences or adoption of a cautious or special approach. It was held that:

“A close look at some of the rules in the eight-point code formulated by the High Court will  show how difficult  it  is  to apply them in practice.  The seventh proposition says :

"The  larger  interest  of  the  public  and  State  demand  that  in serious cases like economic offences involving blatant corruption at  the  higher  rungs  of  the  executive  and  political  power,  the discretion  under  Section  438  of  the  Code  should  not  be exercised."

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, even 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 fide are substantial and the accusation appears to be false and groundless."

Does this rule mean, and that is the argument of the learned Additional Solicitor-General, that the anticipatory bail cannot be granted unless it is alleged  (and  naturally,  also  shown,  because  mere  allegation  is  never enough) that the proposed accusations are mala fide ? 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 mala fide.  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.

According to the sixth proposition framed by the High Court, the discretion under Section 438cannot be exercised in regard to offences punishable with

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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 non-bailable  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 cases falling under Section 438 that stage is still to arrive and, in the generality of cases thereunder, it would be premature and indeed difficult to predicate that there 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 the applicant on bail is, normally, the credibility of the allegations contained in the First Information Report.”

68. For the above reasons, the answer to the first question in the reference made to

this bench is that there is no offence, per se, which stands excluded from the purview

of Section 438, -  except the offences mentioned in Section 438 (4). In other words,

anticipatory bail can be granted, having regard to all the circumstances, in respect of

all offences. At the same time, if there are indications in any special law or statute,

which  exclude relief under Section 438 (1) they would have to be duly considered.

Also,  whether  anticipatory  offences  should  be  granted,  in  the  given  facts  and

circumstances  of  any  case,  where  the  allegations  relating  to  the  commission  of

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offences of a serious nature, with certain special conditions, is a matter of discretion to

be  exercised,  having  regard  to  the  nature  of  the  offences,  the  facts  shown,  the

background  of  the  applicant,  the  likelihood  of  his  fleeing  justice  (or  not  fleeing

justice); likelihood of co-operation or non-co-operation with the investigating agency

or police, etc. There can be no inflexible time frame for which an order of anticipatory

bail can continue.  

69. Therefore, this court holds that the view expressed in  Salauddin Abdulsamad

Shaikh, K.L. Verma, Nirmal Jeet Kaur, Satpal Singh, Adri Dharan Das, HDFC Bank,

J.J. Manan and Naresh Kumar Yadav (supra) about the Court of Sessions, or the High

Court, being obliged to grant anticipatory bail, for a limited duration, or to await the

course of investigation, so as the “normal court” not being “bye passed” or that in

certain kinds of serious offences, anticipatory bail should not be granted normally-

including  in  economic  offences,  etc  are  not  good  law.  The  observations  –  which

indicate  that  such  time  related  or  investigative  event  related  conditions,  should

invariably be imposed at the time of grant of anticipatory bail are therefore, overruled.

Similarly, the observations in Mhetre that  “the courts should not impose restrictions

on  the  ambit  and  scope  of  section  438  Cr.P.C.  which  are  not  envisaged  by  the

Legislature.  The  court  cannot  rewrite  the  provision  of  the  statute  in  the  garb  of

interpreting it” is too wide and cannot be considered good law. It is one thing to say

that as a matter of law, ordinarily special conditions (not mentioned in Section 438 (2)

read with Section 437 (3) should not be imposed; it is an entirely different thing to say

that in particular instances, having regard to the nature of the crime, the role of the

accused,  or some peculiar  feature,  special  conditions should not  be imposed.  The

judgment in Sibbia itself is an authority that such conditions can be imposed, but not

in a routine or ordinary manner and that such conditions then become an inflexible

“formula” which the courts would have to follow. Therefore, courts and can, use their

discretion, having regard to the offence, the peculiar facts, the role of the offender,

circumstances  relating  to  him,  his  likelihood  of  subverting  justice  (or  a  fair

investigation), likelihood of evading or fleeing justice- to impose special conditions.

Imposing such conditions, would have to be on a case to case basis, and upon exercise

of discretion by the court seized of the application under Section 438. In conclusion, it

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is held that imposing conditions such as those stated in Section 437 (2) while granting

bail, are normal; equally, the condition that  in the event of the police making out a

case of a likely discovery under Section 27 of the Evidence Act, person released on

bail shall be liable to be taken in police custody for facilitating the discovery. Other

conditions, which are restrictive, are not mandatory; nor is there any invariable rule

that they should necessarily be imposed or that the anticipatory bail order would be for

a time duration, or be valid till the filing of the FIR, or the recording of any statement

under Section 161, Cr. PC, etc. Other conditions may be imposed, if the facts of the

case so warrant.

Re Question No. 2: Whether the life of an anticipatory bail should end at the time and stage when the accused is summoned by the court.

70. The question here is whether there is  anything in the law which per se requires

that upon filing of the charge-sheet, or the summoning of  the accused, by the court –

(or even the addition of  an offence in the charge-sheet, of which an applicant on bail

is accused of freshly), his liberty ought to be forfeited and that he should be asked to

surrender and apply for regular bail. The observations about the width and amplitude

of the power under Section 438, made in answer to the first  question, are equally

relevant here too. In the present context, further, the judgment and observations of this

Court  in its  interpretation of  Section 167(2) are telling.  It  was held in  Gursharan

Singh (supra), the release by grant of bail of an accused under Section 167(2) amounts

to  “deemed  bail”.  This  is  borne  out  by  Section  167(2)  which  states  that  anyone

released on bail under its provision “shall  be deemed to be so released under the

provisions  of  Chapter  XXXIII  for  the  purposes  of  that  Chapter.”  The judgment  in

Aslam  Babalal  Desai  (supra) has  clarified  that  when  an  accused  is  released  by

operation  of  Section  167(2)  and subsequently,  a  charge-sheet  is  filed,  there  is  no

question of the cancellation of his bail. In these circumstances, the mere fact that an

accused is given relief under Section 438 at one stage, per se does not mean that upon

the filing of a charge-sheet, he is necessarily to surrender or/and apply for regular bail.

The analogy to ‘deemed bail’ under Section 167(2) with anticipatory bail leads this

court to conclude that the mere subsequent event of the filing of a charge-sheet cannot

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compel  the  accused  to  surrender  and  seek  regular  bail.  As  a  matter  of  fact,

interestingly, if indeed, if a charge-sheet is filed where the accused is on anticipatory

bail,  the normal implication would be that there was no occasion for the investigating

agency or the police to require his custody, because there would have been nothing in

his  behavior  requiring  such  a  step.  In  other  words,  an  accused,  who  is  granted

anticipatory bail would continue to be at liberty when the charge sheet is filed, the

natural implication is that there is no occasion for a direction by the Court that he be

arrested and further that he had cooperated with the investigation. At the same time,

however, at any time during the investigation were any occasion to arise calling for

intervention of the court for infraction of any of the conditions imposed under Section

437(3) read with Section 438(2) or the violation of any other condition imposed in the

given facts of a case, recourse can always be had under Section 439(2).

71. Section 438 (3) states that when a person is granted anticipatory bail, is later

arrested  without  warrant  by  an  officer  in  charge  of  a  police  station  “on  such

accusation”,  and  is  willing  to  give  bail,  “he  shall  be  released on  bail;  and if  a

Magistrate taking cognizance of such offence decides that a warrant should issue in

the first instance against that person he shall issue a bailable warrant in conformity

with the direction of the Court under sub-section (1)”. The order granting anticipatory

bail, is also- as noticed earlier, and in several previous decisions, a “direction” under

this Section 438 “that in the event of such arrest” the applicant be released on bail.

Therefore,  when an accused in fact  is  granted bail,  and the conditions outlined in

Section 438 (2) are included as part of the direction “to release” him in the event of

arrest, all the necessary conditions which he is obliged to follow exist. Section 438 (3)

outlines the steps to be taken, in the event of arrest of one who has been granted relief

under Section 438 (1).  In the event of non-compliance with any or all  conditions,

imposed by the court, the concerned agency or the police, a direction can be sought

from the court under Section 439 (2).  

72. The view that this court expresses about the prosecution’s option to apply for a

direction to arrest the accused, finds support in Pradeep Ram (supra) where this court

held as follows:

114

“21. Both Sections 437 (5) and 439 (2) empowers the Court to arrest an accused and commit him to custody, who has been released on bail under Chapter XXXIII.  There may be numerous grounds for exercise of  power under 437 (5) and 439 (2). The principles and grounds for cancelling a bail are well settled, but in the present case, we are concerned only with one aspect of the matter, i.e., a case where after accused has been granted the bail,  new and serious offences are  added in the case.  A person against whom serious offences have been added, who is already on bail can very well be directed to be arrested and committed to custody by the Court in exercise of power under 437 (5) and 439 (2). Cancelling the bail granted to an accused and directing him to arrest and taken into custody can be one course  of  the  action,  which  can  be  adopted  while  exercising  power under 437 (5) and 439 (2), but there may be cases where without cancelling the bail granted to an accused, on relevant consideration, Court can direct the  accused  to  be  arrested  and  committed  to  custody.  The  addition  of serious offences is one of such circumstances, under which the Court can direct the accused to be arrested and committed to custody despite the bail having been granted with regard to the offences with which he was charged at the time when bail was considered and granted.

******** ******** ********

25. We may have again to look into provisions of Sections 437 (5) and 439 (2) of Cr.P.C. Sub-section (5) of Sections 437 of Cr.P.C uses expression ‘if it considers it necessary so to do, direct that such person be arrested and commit him to custody’. Similarly, sub-section (2) of Section 439 of Cr.P.C. provides: ‘may direct that any person who has been released on bail under this Chapter be  arrested  and commit  him to  custody’.  A plain  reading  of  the  aforesaid provisions indicates that provision does not mandatorily provide that the Court before directing arrest  of  such accused who has already been granted bail must  necessary cancel  his  earlier  bail.  A discretion  has been given  to  the Court to pass such orders to direct for such person be arrested and commit him to the custody which direction may be with an order for cancellation of earlier bail or permission to arrest such accused due to addition of graver and non- cognizable offences. Two Judge Bench judgment in Mithabhai Pashabhai Patel  (supra)  uses  the  word  ‘ordinarily’ in  paragraph  18  of  the  judgment which cannot be read as that mandatorily bail earlier granted to the accused has to be cancelled before Investigating Officer to arrest him due to addition of graver and non-cognizable offences.

*********           ********       ********

27.  Relying  on  the  above  said  order,  learned  counsel  for  the  appellant submits that respondent State ought to get first the order dated 10.03.2016 granting  bail  to  appellant  cancelled  before  seeking  custody  of  the appellant. It may be true that by mere addition of an offence in a criminal

115

case, in which accused is bailed out, investigating authorities itself may not proceed to arrest the accused and need to obtain an order from the Court, which has released the accused on the bail. It is also open for the accused, who is already on bail and with regard to whom serious offences have been added to apply for bail in respect of new offences added and the Court after applying the mind may either refuse the bail or grant the bail with regard to new offences. In a case, bail application of the accused for newly added offences is rejected, the accused can very well be arrested. In all cases, where accused is bailed out under orders of the Court and new offences are added including offences of serious nature, it is not necessary that in all cases  earlier  bail  should  be  cancelled  by  the  Court  before  granting permission to arrest an accused on the basis of new offences. The power under Sections 437 (5) and 439 (2) are wide powers granted to the court by the Legislature under which Court can permit an accused to be arrested and commit him to custody without even cancelling the bail with regard to earlier offences. Sections 437 (5) and 439 (2) cannot be read into restricted manner that order for arresting the accused and commit him to custody can only be passed by the Court after cancelling the earlier bail.

28. Coming back to the present case, the appellant was already into jail custody with regard to another case and the investigating agency applied before Special Judge, NIA Court to grant production warrant to produce the  accused  before  the  Court.  The  Special  Judge  having  accepted  the prayer of grant of production warrant, the accused was produced before the Court on 26.06.2018 and remanded to custody. Thus, in the present case, production of the accused was with the permission of the Court. Thus, the present  is  not  a  case  where  investigating  agency  itself  has  taken  into custody the appellant after addition of new offences rather accused was produced in the Court in pursuance of production warrant obtained from the Court by the investigating agency. We, thus do not find any error in the procedure which was adopted by the Special Judge, NIA Court with regard to production of appellant before the Court. In the facts of the present case, it was not necessary for the Special Judge to pass an order cancelling the bail  dated  10.03.2016  granted  to  the  appellant  before  permitting  the accused appellant to be produced before it or remanding him to the judicial custody.

29. In view of the foregoing discussions, we arrive at following conclusions in respect of a circumstance where after grant of bail to an accused, further cognizable and non-bailable offences are added:-

(i)  The  accused  can  surrender  and  apply  for  bail  for  newly  added cognizable  and  non-bailable  offences.  In  event  of  refusal  of  bail,  the accused can certainly be arrested.

(ii) The investigating agency can seek order from the court under Sections 437 (5) or 439 (2) for arrest of the accused and his custody.

116

(iii) The Court, in exercise of power under Sections 437 (5) or 439 (2) of Cr.PC., can direct for taking into custody the accused who has already been granted bail after cancellation of his bail. The Court in exercise of power under Sections 437 (5) as well as 439 (2)  can direct the person who has already  been  granted  bail  to  be  arrested  and  commit  him  to  custody on addition  of  graver  and  non-cognizable  offences  which  may  not  be necessary always with order of cancelling of earlier bail.

(iv)  In  a  case  where  an  accused  has  already  been  granted  bail,  the investigating  authority  on  addition  of  an  offence  or  offences  may  not proceed  to  arrest  the  accused,  but  for  arresting  the  accused  on  such addition  of  offence or  offences  it  need to  obtain an order  to  arrest  the accused from the Court which had granted the bail.”

73. Earlier, in the decision reported as  Dolat Ram v State of Haryana44 this court

had observed that  

“bail once granted should not be cancelled in a mechanical manner without considering  whether  any  supervening  circumstances  have  rendered  it  no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial.”

74. This decision was followed, and its ratio applied, in Hazari Lal Das v State of

West Bengal & Anr45. The decision in Bhadresh Bipinbhai Sheth v. State of Gujarat46

stated, after culling out the principles in Mhetre, as follows:

“25.6. 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. 25.7. In pursuance of the order of the Court of Session or the High Court, once the accused is released on anticipatory bail by the trial court, then it would be unreasonable to compel the accused to surrender before the trial court and again apply for regular bail. 25.8. Discretion vested in the court in all matters should be exercised with care  and  circumspection  depending  upon  the  facts  and  circumstances justifying its exercise. Similarly, the discretion vested with the court under Section 438 CrPC should also be exercised with caution and prudence. It is

44 1995 (1) SCC 349

45 2009 (10) SCC 652

46 2016 (1) SCC 152

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unnecessary to travel beyond it and subject the wide power and discretion conferred by the legislature to a rigorous code of self-imposed limitations. 25.9. No inflexible guidelines or straitjacket formula can be provided for grant  or  refusal  of  the  anticipatory  bail  because  all  circumstances  and situations of future cannot be clearly visualised for the grant or refusal of anticipatory  bail.  In  consonance  with  legislative  intention,  the  grant  or refusal  of  anticipatory  bail  should  necessarily  depend  on  the  facts  and circumstances of each case.”

75. The  three-judge  decision  in  Sudhir  v.  Maharastra47 noticed  the  decision  in

Bipin Bhadresh Sheth  (supra) and did not disapprove it. However, the court did not

grant relief, given that anticipatory bail was declined initially, and the application to

the High Court was withdrawn, after which a second anticipatory bail was granted.

The High Court cancelled  the grant of relief. This court affirmed the High Court’s

view.  In that  judgment,  Bipin Bhadresh Sheth  was noticed,  while considering the

scope of the power under Section 439 (2). In another decision, Arvind Tiwary v. State

of  Bihar48 the  issue  was  whether  the  anticipatory  bail,  granted  subject  to  certain

conditions, earlier, which had been considered by this court, could be cancelled. The

conditions included, inter alia, that sums were to be secured by bank guarantee. The

aggrieved corporation directed that the “defalcated sum” specified in respect of every

accused should be secured through such guarantee. Upon failure to comply with that

demand, an order of cancellation was sought. This court held that cancellation could

not  be  resorted to on the assumption that  the  applicants  were guilty.  Similarly,  in

Mahant Chand Yogi v. State of Haryana,49 Padmakar Tukaam Bhavnagare v. State of

Maharastra,50 X v. State of Telangana, 51 and several other judgments the same views

were expressed.  

76. Therefore, unless circumstances to the contrary: in the form of behaviour of the

accused suggestive of his fleeing from justice, or evading the authority or jurisdiction

47 2016 (1) SCC 146

48 2018 (8) SCC 475

49 2003 (1) SCC 236

50 2012 (13) SCC 720

51 (2018) 16 SCC 511

118

of the court, or his intimidating witnesses, or trying to intimidate them, or violate any

condition  imposed  while  granting  anticipatory  bail,  the  law  does  not  require  the

person to surrender to the court upon summons for trial being served on him. Subject

to compliance with the conditions imposed, the anticipatory bail given to a person, can

continue till  end of  the  trial.  This  answers  question  No.  2  referred to  the  present

Bench.    

Conclusions

77. This court answers the reference in the following manner:  

(1)  Regarding  question  No.  1,  it  is  held  that  the  protection  granted  under

Section 438 Cr. PC should not always or ordinarily be limited to a fixed period;

it should inure in favour of the accused without any restriction as to time. Usual

or standard conditions under Section 437 (3) read with Section 438 (2) should

be imposed; if  there are peculiar features in regard to any crime or offence

(such as  seriousness  or  gravity etc.),  it  is  open to  the  court  to  impose any

appropriate condition (including fixed nature of relief, or its being tied to an

event or time bound) etc.     

(2) The second question referred to this court is answered, by holding that the

life of an anticipatory bail does not end generally at the time and stage when

the accused is summoned by the court, or after framing charges, but can also

continue till the end of the trial. However, if there are any special or peculiar

features necessitating the court to limit the tenure of anticipatory bail, it is open

for it to do so.

78. Having regard to the above discussion, it is clarified that the court should keep

the following points as guiding principles, in dealing with applications under Section

438, Cr. PC:

(a) As held in  Sibbia,  when a person apprehends arrest and approaches a

court for anticipatory bail, his apprehension (of arrest), has to be based on

concrete facts  (and not vague or general  allegations) relatable a specific

offence or particular of offences. Applications for anticipatory bail should

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contain  clear  and  essential  facts  relating  to  the  offence,  and  why  the

applicant reasonably apprehends his or her arrest, as well as his version of

the  facts.  These  are  important  for  the  court  which  considering  the

application, to extent and reasonableness of the threat or apprehension, its

gravity or seriousness and the appropriateness of any condition that may

have  to  be  imposed.  It  is  not  a  necessary  condition  that  an  application

should be moved only after an FIR is filed; it can be moved earlier, so long

as the facts are clear and there is reasonable basis for apprehending arrest.

(b) The  court,  before  which  an  application  under  Section  438,  is  filed,

depending  on  the  seriousness  of  the  threat  (of  arrest)  as  a  measure  of

caution, may issue notice to the public prosecutor and obtain facts,  even

while granting limited interim anticipatory bail.  

(c)Section 438 Cr. PC does not compel or oblige courts to impose conditions

limiting  relief  in  terms  of  time,  or  upon  filing  of  FIR,  or  recording  of

statement of any witness, by the police, during investigation or inquiry, etc.

While weighing and considering an application (for grant of anticipatory

bail)  the court  has to consider the nature of  the offence,  the role of the

person,  the  likelihood  of  his  influencing  the  course  of  investigation,  or

tampering with evidence (including intimidating witnesses),  likelihood of

fleeing  justice  (such  as  leaving  the  country),  etc.  The  courts  would  be

justified – and ought to impose conditions spelt out in Section 437 (3), Cr.

PC [by virtue of Section 438 (2)]. The necessity to impose other restrictive

conditions,  would  have  to  be  weighed  on  a  case  by  case  basis,  and

depending upon the  materials  produced by the  state  or  the  investigating

agency. Such special or other restrictive conditions may be imposed if the

case or cases warrant, but should not be imposed in a routine manner, in all

cases. Likewise, conditions which limit the grant of anticipatory bail may

be granted, if they are required in the facts of any case or cases; however,

such limiting conditions may not be invariably imposed.

120

(d) Courts ought to be generally guided by the considerations such nature

and gravity of the offences, the role attributed to the applicant, and the facts

of the case, while assessing whether to grant anticipatory bail, or refusing it.

Whether to grant or not is a matter of discretion; equally whether, and if so,

what kind of  special  conditions are  to  be  imposed (or  not  imposed) are

dependent on facts of the case, and subject to the discretion of the court.   

(e) Anticipatory bail granted can, depending on the conduct and behavior of

the accused, continue after filing of the charge sheet till end of trial. Also

orders of anticipatory bail should not be “blanket” in the sense that it should

not enable the accused to commit further offences and claim relief. It should

be confined to the offence or incident, for which apprehension of arrest is

sought, in relation to a specific incident. It cannot operate in respect of a

future incident that involves commission of an offence.

(f) Orders of anticipatory bail do not in any manner limit or restrict the rights

or  duties  of  the  police  or  investigating  agency,  to  investigate  into  the

charges against the person who seeks and is granted pre-arrest bail.  

(g) The  observations  in  Sibbia  regarding  “limited  custody”  or  “deemed

custody” to facilitate the requirements of the investigative authority, would

be sufficient for the purpose of fulfilling the provisions of Section 27, in the

event of recovery of an article, or discovery of a fact, which is relatable to a

statement  made during such event  (i.e.  deemed custody).  In  such event,

there  is  no  question  (or  necessity)  of  asking  the  accused  to  separately

surrender and seek regular bail.  Sibbia  (supra) had observed that  “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.”   

121

(h) It is open to the police or the investigating agency to move the court

concerned,  which  granted  anticipatory  bail,  in  the  first  instance,  for  a

direction  under  Section  439  (2)  to  arrest  the  accused,  in  the  event  of

violation  of  any  term,  such  as  absconding,  non-cooperating  during

investigation, evasion, intimidation or inducement to witnesses with a view

to influence outcome of the investigation or trial, etc. The court – in this

context  is  the  court  which  grants  anticipatory  bail,  in  the  first  instance,

according to prevailing authorities.  

(i) The correctness of an order granting bail, can be considered by the appellate

or superior court at the behest of the state or investigating agency, and set

aside on the ground that the court granting it did not consider material facts

or crucial circumstances. (See  Prakash Kadam & Etc. Etc vs Ramprasad

Vishwanath Gupta & Anr52; Jai Prakash Singh (supra) State through C.B.I.

vs. Amarmani Tripathi53 ). This does not amount to “cancellation” in terms

of Section 439 (2), Cr. PC.

(j) The judgment in Mhetre (and other similar decisions) restrictive conditions

cannot be imposed at all, at the time of granting anticipatory bail are hereby

overruled.  Likewise,  the decision in  Salauddin  and subsequent  decisions

(including K.L. Verma, Nirmal Jeet Kaur) which state that such restrictive

conditions, or terms limiting the grant of anticipatory bail, to a period of

time are hereby overruled.      

79. In conclusion, it would be useful to remind oneself that the rights which the

citizens cherish deeply, are fundamental- it is not the restrictions that are fundamental.

Joseph Story, the great jurist and US Supreme Court judge, remarked that “personal

security and private property  rest  entirely upon the  wisdom,  the stability,  and the

integrity of the courts of justice."

52 (2011) 6 SCC 189

53 (2005) 8 SCC 21

122

80. The history of our republic – and indeed, the freedom movement has shown

how  the  likelihood  of  arbitrary  arrest  and  indefinite  detention  and  the  lack  of

safeguards played an important role in rallying the people to demand independence.

Witness  the  Rowlatt  Act,  the  nationwide protests  against  it,  the  Jallianwalla  Bagh

massacre and several other incidents, where the general public were exercising their

right  to  protest  but  were  brutally  suppressed  and  eventually  jailed  for  long.  The

specter  of  arbitrary  and  heavy-handed  arrests:  too  often,  to  harass  and  humiliate

citizens, and oftentimes, at the interest of powerful individuals (and not to further any

meaningful investigation into offences) led to the enactment of Section 438. Despite

several  Law commission  reports  and recommendations  of  several  committees  and

commissions, arbitrary and groundless arrests continue as a pervasive phenomenon.

Parliament has not thought it  appropriate to curtail  the power or  discretion of  the

courts, in granting pre-arrest or anticipatory bail, especially regarding the duration, or

till charge sheet is filed, or in serious crimes. Therefore, it would not be in the larger

interests of society if the court, by judicial interpretation, limits the exercise of that

power: the danger of such an exercise would be that in fractions, little by little, the

discretion, advisedly kept wide, would shrink to a very narrow and unrecognizably

tiny portion, thus frustrating the objective behind the provision, which has stood the

test of time, these 46 years.    

81. The reference is hereby answered in the above terms.  

.............................................J.                                                  [S. RAVINDRA BHAT]  

New Delhi, January 29, 2020.

123

SPECIAL LEAVE PETITION (CRIMINAL) NO (s).  7281-7282 OF 2017

SUSHILA  AGGARWAL & ORS.                  ...APPELLANT(S)

VERSUS

STATE (NCT OF DELHI) & ANR.                        ...RESPONDENT(S)

______

We have seen the drafts of Justice M.R. Shah and Justice S. Ravindra

Bhat and are in agreement with them. Since there is no difference of opinion

between the two, we are in agreement with the reasoning of Justice M.R. Shah

and  Justice  S.  Ravindra  Bhat  that  the  conclusions  in  Shri  Gurbaksh  Singh

Sibbia and others v. State of Punjab  1980 (2) SCC 565  needs reiteration and

further that the restrictive manner in which Section 438 of the Cr.PC has been

interpreted in  Salauddin Abdulsamad Shaikh v. State of Maharashtra 1996 (1)

SCC 667  is  incorrect.  Therefore,  we agree that  Salauddin (supra)  and other

cases  which  have  followed  it  needs  to  be  overruled.  Similarly,  the  wide

interpretation in Siddharam Satlingappa Mhetre v. State of Maharashtra & Ors.

2011 (1) SCC 694, i.e. that no conditions can be imposed while granting an

order of anticipatory bail, is incorrect. Mhetre (supra) to that extent and other  

judgments which have followed it are accordingly overruled.

124

In view of the said conclusions, we are in agreement with the answers to

the reference made to the larger Bench.

.............................................J.                                                   [ARUN MISHRA]

.............................................J.                                                    [INDIRA BANERJEE]

.............................................J.                                                    [VINEET SARAN]   

New Delhi; January 29, 2020.

125

SPECIAL LEAVE PETITION (CRIMINAL) NO (s).  7281­7282 OF 2017

SUSHILA  AGGARWAL & ORS.                   ...APPELLANT(S)

VERSUS

STATE (NCT OF DELHI) & ANR.                         ...RESPONDENT(S)

______

FINAL CONCLUSIONS:

In view of the concurring judgments of Justice M.R. Shah

and of Justice S. Ravindra Bhat with Justice Arun Mishra, Justice

Indira Banerjee and Justice Vineet Saran agreeing with them, the

following answers to the reference are set out:

(1) Regarding Question No. 1, this court holds that the protection

granted to a person under Section 438 Cr. PC should not

invariably be limited to a fixed period; it should inure in favour

of the accused without any restriction on time. Normal

conditions under Section 437 (3) read with Section 438 (2)

should be imposed; if there are specific facts or features in

regard  to  any offence, it is  open  for the court to impose any

126

appropriate condition (including fixed nature of relief, or its

being tied to an event) etc.     

(2) As regards the second question referred to this court,  it is

held that the life or duration of an anticipatory bail order does

not end normally  at the  time and stage when the accused  is

summoned by the court, or when charges are framed, but can

continue till the end of the trial. Again, if there are any special or

peculiar features necessitating the court to limit the tenure of

anticipatory bail, it is open for it to do so.

1. This court, in the light of the above discussion in the two

judgments, and in the light of the  answers to the reference,

hereby clarifies that the following need to be kept in mind by

courts, dealing with applications under Section 438, Cr. PC:

(1) Consistent with the judgment in  Shri Gurbaksh Singh

Sibbia and others v. State of Punjab54,  when a person

complains of apprehension of arrest and approaches for order,

the application should be based on concrete facts (and not

vague or general allegations) relatable to one or other specific

offence. The application seeking anticipatory bail should

contain bare essential facts relating to the offence, and why

the applicant reasonably apprehends arrest,  as  well  as  his

54 1980 (2) SCC 565

127

side of the story. These are essential for the court  which

should consider his application, to evaluate the threat or

apprehension, its gravity or seriousness and the

appropriateness of any condition that may have to be

imposed. It is  not essential that an  application should  be

moved only after an FIR is filed; it can be moved earlier, so

long as the facts are clear and there is reasonable basis for

apprehending arrest.

(2) It may be advisable for the court, which is approached with

an application under Section 438, depending on the

seriousness of the threat (of arrest) to issue  notice to the

public prosecutor and obtain facts, even while granting

limited interim anticipatory bail.  

(3) Nothing in Section 438 Cr. PC, compels or obliges courts to

impose  conditions limiting relief in terms of time,  or  upon

filing of FIR, or recording of statement of any witness, by the

police, during investigation or inquiry, etc. While considering

an application (for grant of anticipatory bail) the court has to

consider the nature of the offence, the role of the person, the

likelihood  of  his influencing the  course  of investigation,  or

tampering  with evidence (including intimidating  witnesses),

likelihood of fleeing justice (such as leaving the country), etc.

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The courts would be justified – and ought to impose

conditions spelt out in Section 437 (3), Cr. PC [by virtue of

Section 438 (2)]. The need to impose other restrictive

conditions, would have to be judged on a case by case basis,

and depending upon the materials produced by the state or

the investigating agency. Such special or other restrictive

conditions may be imposed if the case or cases warrant, but

should  not  be imposed in  a routine  manner, in  all cases.

Likewise, conditions which limit the grant of anticipatory bail

may be granted, if they are required in the facts of any case or

cases; however, such limiting conditions may not be

invariably imposed.

(4) Courts ought to be generally guided by considerations such as

the nature and gravity of the offences, the role attributed to

the  applicant,  and  the facts  of the  case,  while  considering

whether to grant anticipatory bail, or refuse it.   Whether to

grant or not is a matter of discretion; equally whether and if

so, what kind of special conditions are to be imposed (or not

imposed) are dependent on facts of the case, and subject to

the discretion of the court.  

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(5) Anticipatory bail granted can, depending on the conduct and

behavior of the accused,  continue after  filing of the charge

sheet till end of trial.  

(6) An order of anticipatory bail should not be “blanket” in the

sense that it should not enable the accused to commit further

offences and claim relief of indefinite protection from arrest. It

should be confined to the offence or incident, for which

apprehension of arrest is sought, in relation to a specific

incident. It cannot operate in respect of a future incident that

involves commission of an offence.

(7) An order of anticipatory bail does not in any manner limit or

restrict the rights or duties of the police or investigating

agency, to investigate into the charges against the person who

seeks and is granted pre­arrest bail.  

(8) The observations in  Sibbia  regarding “limited custody” or

“deemed custody” to facilitate the requirements of the

investigative authority, would be sufficient for the purpose of

fulfilling the provisions of Section 27, in the event of recovery

of an article,  or discovery of  a  fact,  which is relatable to a

statement made during such event (i.e deemed custody). In

such event, there is no question (or necessity) of asking the

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accused to separately surrender and seek regular bail. Sibbia

(supra) had observed that “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.”   

(9) It is open to the police or the investigating agency to move the

court concerned, which grants anticipatory bail, for a

direction under Section 439 (2) to arrest the accused, in the

event of violation of any term, such as absconding, non­

cooperating during investigation, evasion, intimidation or

inducement to witnesses with a view to influence outcome of

the investigation or trial, etc.  

(10) The court referred to in para (9) above is the court which

grants  anticipatory  bail, in the first instance,  according to

prevailing authorities.  

(11) The correctness of an order granting bail, can be

considered by the appellate or superior court at the behest of

the state or investigating agency, and set aside on the ground

that the court granting it did not consider material facts or

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crucial circumstances. (See  Prakash Kadam & Etc. Etc vs

Ramprasad Vishwanath Gupta & Anr55;  Jai Prakash Singh

(supra)  State through  C.B.I. vs.  Amarmani  Tripathi56  ). This

does not amount to “cancellation” in terms of Section 439 (2),

Cr. PC.

(12) The observations in Siddharam Satlingappa Mhetre v. State

of Maharashtra & Ors57 (and other similar judgments) that no

restrictive  conditions at  all  can be  imposed,  while  granting

anticipatory bail are hereby overruled. Likewise, the decision

in  Salauddin  Abdulsamad Shaikh  v.  State  of  Maharashtra58

and subsequent decisions  (including  K.L.  Verma v.  State  &

Anr59; Sunita Devi v. State of Bihar & Anr60; Adri Dharan Das v.

State of West Bengal61;  Nirmal Jeet Kaur v.  State of  M.P.  &

Anr62;  HDFC Bank Limited v. J.J. Mannan63;  Satpal Singh v.

55 (2011) 6 SCC 189

56 (2005) 8 SCC 21

57 2011 (1) SCC 694

58 (1996 (1) SCC 667)

59 1998 (9) SCC 348

60 2005 (1) SCC 608

61 2005 (4) SCC 303

62 2004 (7) SCC 558

63 2010 (1) SCC 679

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the State of Punjab64   and  Naresh Kumar Yadav v Ravindra

Kumar65) which lay down such restrictive conditions, or terms

limiting the grant of anticipatory bail, to a period of time are

hereby overruled.      

2. The reference is hereby answered in the above terms.  

.............................................J.                                              [ARUN MISHRA]

.............................................J.                                               [INDIRA BANERJEE]

.............................................J.                                               [VINEET SARAN]   

.............................................J.      [M.R. SHAH]

.............................................J.                                 [S. RAVINDRA BHAT]

New Delhi; January 29, 2020..

64 2018 SCC Online (SC 415

65 2008 (1) SCC 632

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