11/13/2017 ANTICIPATARY BAIL-Cr.P.

C SOME IMPORTANT CASE LAWS

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ANTICIPATARY BAIL-Cr.P.C SOME

IMPORTANT CASE LAWS
ANTICIPATARY BAIL-438 Cr.P.C

There are many misconceptions floating

around regarding Anticipatory Bail. One such
misconception is that a 498a case is an
automatic arrest warrant. However, it does not
necessarily have to be so. In 498A cases, the
moment you get an anticipatory bail, the
police are eliminated as a factor and you’ve
pretty much won the most difficult part of this fight. Another misconception is that the filing of
FIR is a must before getting Anticipatory Bail. Again, this is simply not true.

Most of the times, lawyers don’t fully understand the provision of anticipatory bail given in
Section 438 of Cr. P. C. This article tries to explain the meaning, usage, conditions
applicable, regarding Anticipatory Bail with the help of recent Supreme Court Judgments.

What is Anticipatory Bail?

Section 438 of the Code of Criminal Procedure, 1973 provides that 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 Sessions for a direction

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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.

As observed in Balchand Jain Vs. State of M.P., `anticipatory bail' means `bail in anticipation of

arrest'. 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. When a competent court grants

`anticipatory bail', it makes an order that in the event of arrest, a person shall be released on bail.

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.

Here is one important point to be kept in mind with regard to anticipatory bail:

The filing of First Information Report (FIR) is not a condition precedent to the exercise
of 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.

Here is the coverage from The Hindu

The Supreme Court of India explains the meaning of Anticipatory Bail and lays the conditions
for granting it. Here are the 9 guidelines as laid down by a constitution bench, which the
Courts are required to keep in mind while dealing with an application for grant of anticipatory
bail:

i) Though the power conferred under Section 438 of the Code can be described as of an
extraordinary

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character, but this does not justify the conclusion that the power must be exercised in
exceptional cases only because it is of an extraordinary character. Nonetheless, the
discretion under the Section has to be exercised with due care and circumspection
depending on circumstances justifying its exercise.

ii) Before power under sub-section (1) of Section 438 of the Code is exercised, the Court
must be satisfied that the applicant invoking the provision 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, for which reason, it is not enough for the
applicant to show that he has some sort of 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. 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.

iii) The observations made in Balchand Jain’s case (supra), regarding the nature of the
power conferred by Section 438 and regarding the question whether the conditions
mentioned in Section 437 should be read into Section 438 cannot be treated as conclusive
on the point. There is no warrant for reading into Section 438, the conditions subject to
which bail can be granted under Section 437(1) of the Code and therefore, anticipatory bail
cannot be refused in respect of offences like criminal breach of trust for the mere reason
that the punishment provided for 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.

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
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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 possibly be predicated when the
order was passed.

v) The filing of First Information Report (FIR) is not a condition precedent to the
exercise of 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.

vi) An anticipatory bail can be granted even after an FIR is filed so long as the
applicant has not been arrested.

vii) 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.

viii) An interim bail order can be passed under Section 438 of the Code without notice
to the Public Prosecutor but notice should be issued to the Public Prosecutor or to
the Government advocate forthwith and the question of bail should be re-examined in
the light of 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.

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.

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Here is the judgment:

SAVITRI AGARWAL & ORS. -- APPELLANT (S)

VERSUS

STATE OF MAHARASHTRA & ANR. -- RESPONDENT (S)

JUDGMENT: D.K. JAIN, J.

Leave granted.

The appellants herein are the mother-in-law, father- in-law, husband and the younger brother of the father-in-

law of the deceased- Laxmi. They are accused of having committed offences punishable under

Sections 498A, 304-B read with Section 34 of the Indian Penal Code, 1860 (for short `the IPC')

and Sections 3 and 4 of the Dowry Prohibition Act, 1961.

Material facts, leading to the filing of these appeals, are as follows: The deceased-Laxmi got married to

appellant No.3 on 26th January, 2006. On 13th October, 2006, they were blessed with a baby boy. On

6th December, 2007 at about 4.30 p.m., appellant No.2 (father-in-law) is stated to have heard the cries

of Laxmi and when he rushed to the second floor of the house, he saw her burning. He tried to douse

the fire. Laxmi told him that her son was lying in the bathroom. He rushed to the bathroom and found

that the child also had burns. Laxmi and her child were removed to the hospital. At about 6.40 p.m., her

statement was recorded by the Executive Magistrate wherein she stated that she and her son caught

fire when she was pouring kerosene oil in the lamp which accidentally fell down; the oil got

spilled over and both of them got burnt. At about 10.55 p.m., the minor child expired. On receiving

the intimation, parents of Laxmi reached the hospital at about 11.30 p.m. the same night. On 7th

December, 2007, at about 1.40 p.m. another statement of Laxmi was recorded by the Executive

Magistrate wherein again she reiterated that she had got burnt accidentally.

On 8th December, 2007, father of Laxmi lodged a complaint with Police against the appellants, inter alia,

alleging that after the marriage of his daughter on 26th January, 2006, the appellants were torturing

her for not meeting dowry demand of Rs.2 lakhs and earlier on 15th July, 2006, due to torture she
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had left the matrimonial home, intending to commit suicide but due to intervention of the relatives,

she returned back. On the said complaint, the police registered an FIR against the appellants

for offences under Section 498A read with Section 34, IPC and Sections 3 and 4 of the

Dowry Prohibition Act, 1961.

On 6th December, 2007 the appellants applied for grant of anticipatory bail before the Sessions Judge,

Amravati, who, vide order dated 10th December, 2007, initially granted interim protection to them

from arrest till the next date of hearing i.e. 17th December, 2007. On 16th December, 2007, Laxmi

expired and offence under Section 304-B IPC came to be added against the appellants. On 18th

December, 2007, after hearing both sides and upon taking into consideration the said two dying

declarations made by the deceased - Laxmi, statements of the complainant and witnesses and

after perusing the case diary, the learned Sessions Judge confirmed the anticipatory bail

granted to the appellants.

Aggrieved, the State of Maharashtra and the complainant filed petitions before the High Court for cancellation

of anticipatory bail granted to the appellants. As noted earlier, by the impugned order, the High Court

has cancelled the anticipatory bail granted to the appellants, on the ground that the Sessions

Judge had failed to apply his mind to certain vital circumstances viz. - absence of mention of

lantern and match stick in the panchnama; necessity of lantern and its lighting at 4 p.m. in the

afternoon when the house was equipped with an inverter; the daughter-in-law doing such risky

work with one year old child, particularly when elders in the family were present in the house

and had everything been well in the house, there was no occasion for the parents of the deceased to

implicate her in-laws. Inter alia, observing that the evidence, which directly involved the appellants, had

been ignored, rendering the order passed by the Sessions Judge perverse, as noted above, the High

Court has set aside the said order. The High Court has also noted that the offences complained of,

being of serious nature, there was no ground to grant anticipatory bail to the appellants. Being

aggrieved, the appellants are before us in these appeals.

The appellants contended that the High Court has failed to appreciate the factual background of the

case, particularly the fact that in both the dying declarations recorded by the Executive

Magistrate, the deceased had not levelled any allegation against the appellants for

demanding any dowry or for torturing her for any other purpose. It was strenuously urged

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that the second dying declaration recorded on 7th December, 2007 at about 1.40 p.m. was in

the presence and perhaps at the instance of the father of the deceased, who admittedly had

arrived in the hospital on 6th December, 2007 at 11.30 p.m., yet the deceased did not level

any allegation against the appellants. Learned counsel argued that the anticipatory bail having

been granted by the Sessions Judge upon consideration of the relevant material placed

before him by the prosecution, viz. the dying declarations, the statements recorded by the

investigating officer and the case diary, in the absence of any complaint by the Investigating

Officer that the appellants were not cooperating in the investigations after the grant of interim

protection on 10th December, 2007, or that they had misused the anticipatory bail granted to them,

there was no other overwhelming circumstance before the High Court, warranting interference with

the judicial discretion exercised by the Sessions Judge and cancellation of bail.

Section 438 of the Code 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 accusation of

having committed a non-bailable offence. The expression `anticipatory bail' has not been defined in

the Code. But as observed in Balchand Jain Vs. State of M.P., `anticipatory bail' means `bail in

anticipation of arrest'. 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. When a competent court

grants `anticipatory bail', it makes an order that in the event of arrest, a person shall be

released on bail. 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.

The Court went on to observe that the power of granting `anticipatory bail' is somewhat

extraordinary in character and it is only in `exceptional cases' where it appears that a person

might be falsely implicated, or a frivolous case might be launched against him, or "there are

reasonable grounds for holding that a person accused of an offence is not likely to

abscond, or otherwise misuse his liberty while on bail" that such power may be exercised.

The power being rather unusual in nature, it is entrusted only to the higher echelons of

judicial service, i.e. a Court of Session and the High Court. Thus, the ambit of power

conferred by Section 438 of the Code was held to be limited.

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Keeping in view the reports of the Law Commission, Section 438 was inserted in the Code. Sub-section (1) of

Section 438 enacts that 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 to the Court

of Session for a direction that in the event of his arrest he shall be released on bail, and the Court may,

if it thinks fit, direct that in the event of such arrest he shall be released on bail. Sub-section (2)

empowers the High Court or the Court of Session to impose conditions enumerated therein. Sub-

section (3) states that if such person is thereafter arrested without warrant by an officer in charge of a

police station on such accusation, he shall be released on bail.

In Gurbaksh Singh Sibbia (supra), the Constitution Bench was called upon to consider correctness or

otherwise of principles laid down by the Full Bench of High Court of Punjab & Haryana in

Gurbaksh Singh Sibbia Vs. State of Punjab. The Full Bench of the High Court summarized the

law relating to anticipatory bail as reflected in Section 438 of the Code and laid down eight

principles which were to be kept in view while exercising discretionary power to grant anticipatory

bail.

The Court felt that wide discretionary power conferred by the Legislature on the higher echelons in the

criminal justice delivery system cannot be put in the form of straight-jacket rules for universal

application as the question whether to grant bail or not depends for its answer upon a variety of

circumstances, the cumulative effect of which must enter into the judicial verdict. A circumstance

which, in a given case, turns out to be conclusive, may or may not have any significance in another

case. While cautioning against imposition of unnecessary restrictions on the scope of the Section,

because, in its opinion, over generous 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 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:

i) Though the power conferred under Section 438 of the Code can be described as of an

extraordinary character, but this does not justify the conclusion that the power must

be exercised in exceptional cases only because it is of an extraordinary character.

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Nonetheless, the discretion under the Section has to be exercised with due care and

circumspection depending on circumstances justifying its exercise.

ii) Before power under sub-section (1) of Section 438 of the Code is exercised, the Court must

be satisfied that the applicant invoking the provision 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, for which reason, it is not enough for

the applicant to show that he has some sort of 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. 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.

iii) The observations made in Balchand Jain's case (supra), regarding the nature of the power

conferred by Section 438 and regarding the question whether the conditions mentioned in

Section 437 should be read into Section 438 cannot be treated as conclusive on the point.

There is no warrant for reading into Section 438, the conditions subject to which bail can be

granted under Section 437(1) of the Code and therefore, anticipatory bail cannot be refused

in respect of offences like criminal breach of trust for the mere reason that the punishment

provided for 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.

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

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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 possibly be predicated when

the order was passed.

v) The filing of First Information Report (FIR) is not a condition precedent to the exercise of power

under Section 438. The imminence of a likely arrest 1 founded on a reasonable belief can

be shown to exist even if an FIR is not yet filed.

vi) An anticipatory bail can be granted even after an FIR is filed so long as the applicant has not

been arrested.

vii) 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.

viii) An interim bail order can be passed under Section 438 of the Code without notice to the

Public Prosecutor but notice should be issued to the Public Prosecutor or to the

Government advocate forthwith and the question of bail should be re-examined in the light

of 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.

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.

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At this juncture, it would be appropriate to note that the view expressed by this Court in Adri Dharan

Das Vs. State of W.B. to the effect that while dealing with an application under Section 438 of the

Code, the Court cannot pass an interim order restraining arrest as it will amount to interference in

the investigation, does not appear to be in consonance with the opinion of the Constitution Bench

in Sibbia's case (supra). Similarly, the observation that power under Section 438 is to be exercised

only in exceptional cases seems to be based on the decision in Balchand's case (supra), which has

not been fully approved by the Constitution Bench. On this aspect, the Constitution Bench stated

thus:

"The observations made in Balchand Jain regarding the nature of the power conferred by Section 438

and regarding the question whether the conditions mentioned in Section 437 should be read into

Section 438 cannot therefore be treated as concluding the points which arise directly for our

consideration. We agree, with respect, that the power conferred by Section 438 is of an

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 in an altogether different context

on an altogether different point". (Emphasis Supplied)

It would also be of some significance to mention that Section 438 has been amended by the Code of

Criminal Procedure (Amendment) Act, 2005. The amended Section is more or less in line with the

parameters laid down in Sibbia's case (supra). However, the amended provision has not yet been

brought into force.

Having considered the case in hand on the touchstone of the aforementioned parameters, we are of the

opinion that the High Court has committed a serious error in reversing the order passed by the

Additional Sessions Judge, Amravati granting anticipatory bail to the appellants. The learned

Sessions Judge passed the order after due consideration of the facts and circumstances of

the case, in particular, the two dying declarations, one recorded in the presence of the

parents of the deceased and the statements of the members of the Women Cell who had

dealt with the case when on 15th July, 2006, the deceased had left the house with intention

to commit suicide and therefore, it cannot be said that the judicial discretion exercised in

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granting anticipatory bail was perverse or erroneous, warranting interference by the High

Court. The order passed by the Sessions Judge was supported by reasons to the extent

required for exercise of judicial discretion in the matter of grant of bail. It may be true that

some of the circumstances, noticed by the High Court in the impugned order, viz., no

reference to lantern in the spot panchnama or the necessity of cleaning the lantern at 4 p.m.

and/or availability of an inverter in the house etc., could have persuaded the Sessions

Judge to take a different view but it cannot be said that the factors which weighed with the

Sessions Judge in granting bail were irrelevant to the issue before him, rendering the order

as perverse. Moreover, merely because the High Court had a different view on same set of

material, which had been taken into consideration by the Sessions Judge, in our view, was

not a valid ground to label the order passed by the Sessions Judge as perverse.

It also appears to us that the High Court has overlooked the distinction of factors relevant for rejecting bail in

a non-bailable case in the first instance and the cancellation of bail already granted. In Dolat Ram &

Ors. Vs. State of Haryana, while dealing with a similar situation where the High Court had cancelled the

anticipatory bail granted by the Sessions Judge in a dowry death case, this Court had observed that

rejection of bail in a non- bailable case at the initial stage and the cancellation of bail had to be

considered or dealt with on different basis. Very cogent and overwhelming circumstances are necessary

for an order directing the cancellation of bail already granted, which, in our opinion, were missing in the

instant case. Nothing was brought to our notice from which it could be inferred that the appellants have

not co-operated in the investigations or have, in any manner, abused the concession of bail granted to

them. As a matter of fact, Mr. Naphade, learned senior counsel representing the State, stated that after

grant of anticipatory bail to the appellants, no investigation in the case has been conducted.

For the foregoing reasons, in our judgment, the impugned order setting aside the anticipatory bail

granted to the appellants by the learned Additional Sessions Judge, cannot be sustained.

Accordingly, the appeals are allowed; impugned order is set aside and the order dated 18th

December, 2007 passed by the Additional Sessions Judge confirming the ad-interim anticipatory

bail to the appellants, is restored. It goes without saying that nothing said by the High Court or by

us hereinabove shall be construed as expression of any opinion on the merits of the case.

Both the appeals stand disposed of, accordingly.

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..................................J. (D.K. JAIN)

..................................J. (R.M. LODHA)

NEW DELHI;

JULY 10, 2009.

BALCHAND JAIN Vs. STATE OF MADHYA PRADESH

Coram: BHAGWATI, P.N.

05/11/1976

,,,,

Subject

Defence and Internal Security of India Rules, 1971--r. 184--If supersedes S. 438. Cr.
P.C. 1973.

Head Notes

Section 438 of the Code of Criminal Procedure, 1973 provides that 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

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direction under this Section. Rule 184 of the Rules made under Defence and Internal
Security of India Act, 1971 enacts that notwithstanding anything contained in the Code of
Criminal Procedure, 1898, no person accused or convicted of a contravention of the
Rules or orders made thereunder shall, if in custody, be released on bail or on his own bond
unless (a) the prosecution has been given an opportunity to oppose the application for
such release and (b) where the prosecution opposes the application and the contravention
is of any such provision of the Rules or orders made thereunder as the Central Government
or the State Government may, by notified order specify in this behalf, the Court is satisfied
that there are reasonable grounds for believing that he is not guilty of such contravention.

A Food Inspector raided the shop of the appellant, who was a merchant
dealing in kiryana goods and kerosene oil etc., and seized his account books.
Apprehending that he might be arrested on a charge of non-bailable offence for
contravention of the provisions of the Defence and Internal

Security of India Act and the Rules, the appellant approached the Sessions Judge for an
anticipatory bail under s. 438 of the Code of Criminal Procedure, 1973. The Sessions
Judge rejected the application. Dismissing his appeal, the High Court held that the express
provisions of r. 184 of the Rules superseded s. 438 of the Code in so far as offences set out
in r. 184 were concerned.

Allowing the appeal and remanding the case to the High Court:

HELD: (P. N. Bhagwati and A.C. Gupta,JJ.)

Section 438 and r. 184 operate at different stages, one prior to arrest.and the
other after arrest and there is no overlapping between these two provisions. Rule 184 does
not stand in the way of a Court of Sessions or a High Court granting anticipatory bail under
s. 438. [57G]

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1. The term 'anticipatory bail' is a misnomer. It is not as if the bail is

presently granted by the court in anticipation of arrest. When the court grants
anticipatory bail it makes an order that in the event of arrest a person shall be
released on bail. This somewhat extraordinary power is exercised only in exceptional
cases and is entrusted to the higher echelons of the judicial service namely the court
of Sessions and the High Court. [55H]

2. Rule 184 postulates the existence of power in the court under the Code and
seeks to place a curb on its exercise by providing that a person accused or convicted of
contravention of any rule or order, if in custody, shall not be released on bail unless the
conditions mentioned in the rule are satisfied. Rule 184 does not lay down a self-contained
code for grant of bail. 1t cannot be construed as displacing altogether the provisions of the
Code in regard to bail. The provisions of the Code must be read alongwith r. 184 and full
effect must be given to them except in so far as they are by reason of the non-obstante
clause overridden by r. 184. [57B-C]

An application under s. 438 is an application on an apprehension of

arrest. On such an application, the direction that may be given under s. 438 is that in
the event of his arrest the applicant shall be released on bail.

Section 438 of the Code has not been repealed by r. 184 of the Rules, but both
have to be read harmoniously. Rule 184 is only supplemental to 8. 438 and contains
guidelines which have to be followed by the Court in passing orders for anticipatory bail in
relation to cases covered by r.184. [70A]

1. (a) Section 438 of the Cede is an extraordinary remedy and

should be resorted to only in special cases. [70C]

(b) Section 438 applies only to non-bailable offences. Anticipatory

bail being an extraordinary remedy available in special cases, this power has been
conferred on the higher echelons of judicial service, namely, the Court of Sessions
or the High Court. What the section contemplates is not anticipatory bail but merely an

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order releasing an accused on bail in the event of his arrest. There can be no
question of bail unless a person is under detention or custody. The object of s. 438
is that the moment a person is arrested, if he had already obtained an order from
the Sessions Judge or the High Court, he would be released immediately without
having to undergo the rigours of jail even for a few days. [63B-D]

2. (a) While interpreting statutes, the Court must infer repeal of a

former statute by the latter only if it causes inconvenience or where it is couched in negative
terms. The legislature does not intend to keep contradictory enactments on the statute
book and, therefore, a construction should be accepted which offers an escape from
it. [66A-C] Aswini Kumar Ghosh and Anr. v. Arabinda Bose and Anr. [1953] S.C.R. 1
referred to.

2. (b) If the intention of r. 184 were to override the provisions of s 438, then the
Legislature should have expressly stated that the provisions of s. 438 shall not apply to
offences contemplated by r. 184. Therefore, the Legislature in its wisdom left it to the Court
to bring about a harmonious construction of the two statutes so that the two may work and
stand together. [65F-G]

Northern India Cateres Pvt. Ltd. & Anr. v. State of Punjab and Anr. [1967] 3 S.C.R. 399
followed.

3. (a) Section 438 does not contain unguided or uncanalised power to

pass an order for anticipatory bail; but such an order being of an exceptional type can
only be passed if, apart from the conditions mentioned in s. 437. there is a special
case for passing the order. The words 'for a direction under this section' and 'Court may, if
it thinks fit, direct' clearly show that the Court has to be guided by a large number of
considerations, including those mentioned in s. 437. When a Court is dealing with
offences contemplated by r. 184 it is obvious that though the offences are not
punishable with death or imprisonment for life so as to attract the provisions of s.
437, the conditions laid down by r. 184 would have to be complied with before an

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order under s. 438 could be passed. [67A-B] In re V. Bhuvaraha Iyengar, A.I.R. [1942]
Mad. 221, 223, In re Surajlal Harilal Majumdar & others, A.I.R. 1943 Bom 82, and Saligram
Singh & Ors. v. Emperor, AIR 1945 Pat. 69 distinguished.

(b) The scope of r. 184. is wider than that of s. 438 inasmuch as while s. 438
can be invoked only in cases of non-bailable offences and not in cases of bailable
offences, r. 184 is applied not only to non-bailable offences but also to bailable offences
and, therefore, the conditions mentioned in r. 184, would have to be impliedly imported into
s. 436 which deals with orders for bail regarding bailable offences. [69D]

GURBAKSH SINGH SIBBIA ETC. Vs. STATE OF PUNJAB

Coram: CHANDRACHUD, Y.V. (CJ), BHAGWATI, P.N., UNTWALIA, N.L., PATHAK, R.S.,
REDDY, O. CHINNAPPA (J)

09/04/1980

1980 AIR 1632, 1980( 3 )SCR 383, 1980( 2 )SCC 565, ,

Subject

Bail-Anticipatory Bail-Section 438 of the Code of Criminal Procedure Code, 1973

(Act 2 of 1974), Scope of Judicial balancing of personal liberty and the investigational
powers of the Police, explained.

Head Notes

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The appellant herein, Sri Gurbaksh Singh Sibbia was a Minister of Irrigation and Power in
the Congress Ministry of the Government of Punjab. Grave allegations of political
corruption were made against him and others whereupon applications were filed in the
High Court of Punjab and Haryana under section 438 of the Criminal Procedure Code,
praying that the appellants be directed to be released on bail, in the event of their arrest on
the aforesaid charges.

Considering the importance of the matter, a learned single Judge referred the
applications to a Full Bench, which by its judgment dated September, 13, 1977 dismissed
them, after summarising, what according to it is the true legal position, of s. 438 of the
Code of Criminal Procedure, 1973 (Act 2 of 1974) thus:

(1) The power under Section 438, Criminal Procedure Code, is of

an extra-ordinary character and must be exercised sparingly in exceptional cases
only.

(2) Neither Section 438 nor any other provision of the Code
authorizes 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 Section 437, the petitioner

must make out 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.

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(6) The discretion under Section 438 cannot be exercised with regard
to offences punishable with death or imprisonment for life unless the Court at that
very stage is satisfied

that such a charge appears to be false or groundless.

(7) The larger interest of the public and State demand that in serious
cases like economic offences involving blatant corruption at the higher rungs of the
executive and political power, the discretion under Section 438 of the Code should
not be exercised; and

(8) Mere general allegations of mala fides in the petition are inadequate.
The court must be satisfied on materials before it that the allegations of mala fides
are substantial and the accusation appears to be false and groundless.

The argument that the appellants were men of substance and position who
were hardly likely to abscond and would be prepared willingly to face trial was
rejected by the Full Bench with the observation that to accord differential treatment
to the appellants on account of their status will amount to negation of the concept of
equality before the law and that it could hardly be contended that every man of status,
who was intended to be charged with serious crimes including the one under section 409
was punishable with life imprisonment, "was entitled to knock at the door of the Court for
anticipatory bail". The possession of high status, according to the Full Bench, is not only
an irrelevant consideration for granting anticipatory bail, but is, if anything, an
aggravating circumstance. Hence the appeals by special leave.

The appellants contended: (a) The power conferred by section 438 to grant
anticipatory bail is "not limited to the contigencies" summarised by the High Court;
(b) 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 particular
case; (c) Since the denial of bail amounts to deprivation of personal liberty; Courts
should lean against the imposition of unnecessary restrictions on the scope of

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Section 438, when no such restrictions are imposed by the legislature in the terms of
that section (d) Section 438 is a procedural provision which is concerned with the
personal liberty of an individual who has not been convicted of the offence in respect
of which he seeks bail and who must be presumed to be innocent. The validity of
that section must accordingly be examined by the test of fairness and which is
implicit in Article 21. Imposition of an unfair or unreasonable limitation would be
violative of Article 21 irrespective of whether it is imposed by legislation or by
judicial decision. Allowing the appeals in part, the Court,

HELD: 1. The society has a vital stake in both of these interests namely, personal liberty
and the investigational power of the police. The Court's task is how best to balance
these interests while determining the scope of section 438 of the Code of Criminal
Procedure, 1973. [393 C-D]

2. The High Court and the Court of Session should be left 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. [417 B-D]

3. 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

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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 individual's liberty; it is neither a passport to the commission of crimes
nor a shield against any and all kinds of accusation, likely or unlikely. [417 E-H, 418 A]

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.

[418 A-B]

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 F.I.R. is not yet filed. [418 B-C]

Fourthly, anticipatory bail can be granted even after an F.I.R. is filed, so long as
the applicant has not been arrested. [418 C]

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, in so far 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. [418 C-E]

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4. However, a "blanket order" of anticipatory bail should not generally be

passed. This flows from the very language of the section which requires the appellant
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
which ever 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 bad. 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. [418 E-H, 419 A]

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 the commits, say, a murder in the presence of the public. Such an order can
then become a charter of lawlessness and 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. [419 C-E]

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5. An order of bail can be passed under section 438(1) of the Code without notice
to the Public Prosecutor. 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. [419 E-F]

6. Equally the operation of an order passed under section 438(1) need not necessarily
be limited in point of time. 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 F.I.R. 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 theCode within a
reasonably short period after the filing of the F.I.R. 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. [419 F-H]

7. Bail is basically release from restraint, more particularly release from the
custody of the police. 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. Personal
recognizance suretyship bonds and such other modalities are the means by which an
assurance is secured from the accused that though he has been released on bail, he will
present himself as the trial of offence or offences of which he is charged and for which he
was arrested. [397 E-G]

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
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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 Code of Criminal Procedure which deals with how arrests are to be made,
provides that in making the arrest the police officer or other person making the arrest
"shall actually touch or confine the body of the person to be arrested, unless there be a
submission to the custody by word or action". A direction under section 438 is
intended to confer conditional immunity from this 'touch' or confinement. [397 G-H. 398 A-B]

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 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, in so far as one may, and to give full
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play to the presumption that he is innocent. In fact, the stage at which anticipatory bail
is generally sought brings about its striking dissimilarity with the situation in which a
person who is arrested for the commission of a non-bailable offences 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. [404 A-G]

10. The amplitude of judicial discretion which is given to the High Court and the Court of
Sessions, to impose such conditions as they may think fit while granting anticipatory bail,
should not be cut down, by a process of construction, by reading into the statute conditions
which are not to be found therein like those evolved by the High Court. 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. [405 B-D]

Generalisations on matters which rest on discretion and the attempt to discover formulae
of universal application when facts are bound to differ from case to case frustrate the very
purpose of conferring discretion. No two cases are alike on facts and therefore, Courts have
to be allowed a

Little free play in the joints if the conferment of discretionary power is to be meaningful.
There is no risk involved in entrusting a wide discretion to the Court of Session and the
High Court in granting anticipatory bail because, firstly these are higher courts manned
by experienced persons, secondly their order are not final but are open to appellate or
revisional scrutiny and above all because, discretion has always to be exercised by courts
judicially and not according to whim, caprice or fancy. On the other hand, there is a risk in
foreclosing categories of cases in which anticipatory bail may be allowed because life throws

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up unforeseen possibilities and offers new challenges. Judicial discretion has to be free
enough to be able to take these possibilities in its stride and to meet these challenges. [405
D-G] Hyman and Anr. v. Rose, 1912 A.C. 623; referred to

11. Judges have to decide cases as they come before them, mindful of the need
to keep passions and prejudices out of their decisions. And it will be strange if,
by employing judicial artifices and techniques, this Court cuts down the discretion so wisely
conferred upon the Courts, by devising a formula which will confine the power to grant
anticipatory bail within a strait-jacket. While laying down cast-iron rules in a matter like
granting anticipatory bail, as the High Court has done, it is apt to be overlooked that even
Judges can have but an imperfect awareness of the needs of new situations. Life is never
static and every situation has to be assessed in the context of emerging concerns as and
when it arises. Therefore, even if this Court were to frame a 'Code for the grant of
anticipatory bail', which really is the business of the legislature, it can at best furnish broad
guidelines and cannot compel blind adherence. In which case to grant bail and in which to
refuse it is, in the very nature of things, a matter of discretion. But apart from the fact that
the question is inherently of a kind which calls for the use of discretion from case to case,
the legislature has, in terms express, relegated the decision of that question to the
discretion of the Court, by providing that it may grant bail "if it thinks fit". The concern the
Courts generally is to preserve their discretion without meaning to abuse it. It will be
strange if the Court exhibits concern to stultify the discretion conferred upon the Courts by
law. [406 D-H]

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. [407 F-G]

12. It is true that the functions of judiciary and the police are in a sense complementary
and not overlapping. 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
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incorporated in a direction issued under section 438(1) are those recommended in Sub-
section (2)(i) and (ii) which require the applicant to co-operate with the police and to assure
that he shall not tamper with the witnesses during and after the investigation. While
granting relief under Section 438(1), appropriate conditions can be imposed under Section
438(2), so as to ensure an uninterrupted investigation. One of such conditions can even
be that in the event of the police making out a case of a likely discovery under Section 27 of
the Evidence Act, the person released on bail shall be liable to be taken in police custody
for facilitating the discovery. 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.
[409 D, 410 A-D] King Emperor v. Khwaja Nazir Ahmed, 71 I.A., 203, State of U.P. v.
Deoman Upadhyaya, [1961] 1 S.C.R. p. 14 @ 26; referred to.

13. In Balchand Jain v. State of Madhya Pradesh, [1977] 2 SCR 52, this Court was
considering whether the provisions of Section 438 relating to anticipatory bail stand overruled
or repealed by virtue of Rule 184 of the Defence and Internal Security of India Rules,
1971 or whether both the provisions can by rule of harmonious interpretion, exist side by
side. It was in that context that it was observed that "As section 438 immediately follows
Section 437 which is the main provision for bail in respect of non-bailable offences, it is
manifest that the conditions imposed by s. 437(1) are implicitly contained in Section 438 of
the Code". These observations regarding the nature of the power conferred by section
438 and regarding the question whether the conditions mentioned in Section 437 should be
read into section 438 cannot, therefore be treated as the ratio of the decision. [413 C-D, E]

The power conferred by section 438 is of an "extra ordinary" character only in the
sense that it is not ordinarily resorted to like the power conferred by sections 437 and 439.
[413 E-F] Bal Chand Jain v. State of M.P., [1977] 2 S.C.R. 52, distinguished.

14. 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
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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. [413 F-H, 414 A] Maneka Gandhi v. Union of India, [1978] 1
S.C.C. 248; applied.

15. In regard to anticipatory bail, if the proposed accusation appears to stem not from
motives of furthering the ends of justice but from some ulterior motive, the object
being to injure and humiliate the applicant by having him arrested a direction for the release
of the applicant on bail in the event of his arrest would generally, be made. On the other
hand, if it appears likely considering the

antecedents of the applicant, that taking advantage of the order of anticipatory bail he will
flee from justice, such an order would not be made. But the converse of these
propositions is not necessarily true. That is to say it cannot be laid down as an inexorable
rule that anticipatory bail cannot be granted unless the proposed accusation appears to
be actuated by mala fides; and, equally, that anticipatory bail must be granted if there is
no fear that the applicant will abscond. There are several other considerations, too
numerous to enumerate the combined effect of which must weigh with the court while
granting or rejecting anticipatory bail. The nature and seriousness of the proposed
charges, the context of the events likely to lead to the making of the charges, a
reasonable possibility of the applicant's presence not being secured at the trial, a
reasonable apprehension that witnesses will be tampered with and "the larger interests of
the public or the state" are some of the considerations which the court has to keep in
mind while deciding an application for anticipatory bail. [415 G-H, 416 A-C] State v. Captain
Jagjit Singh, [1962] 3 S.C.R. 622, followed.

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Adri Dharan Das Vs. State of West Bengal

Coram: ARIJIT PASAYAT, S.H. KAPADIA

21/02/2005

2005 AIR 1057, 2005(2 )SCR188 , 2005(4 )SCC303 , 2005(2 )SCALE212 , 2005(2
)JT548

Subject

Code of Criminal Procedure, 1973 :

Sections 438-Protection under-Scope of-Complaint under S.406, 467, 468, 471 and 420 IPC-
Prayer by accused for protection in terms of S.438-On facts, held: the prayer was rightly
rejected by High Court.

Section 438-Application under-Held: Legality of proposed arrest cannot be gone into in such
an application-Interim order restraining arrest, if passed while dealing with an application
under S.438, will amount to interference in the investigation, which cannot be done under
S.438.

Sections 438 and 439-Distinction between-Discussed.

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Complaint was lodged alleging commission of various offences more particularly those under
Sections 406, 467, 468, 471 and 420 IPC against the appellant and five others. Prayer was
made to the Judicial Magistrate for taking action in terms of Section 156(3) CrPC who
directed the officer-in-charge of the concerned Police Station to investigate after taking the
petition of complaint as FIR and to submit report before the Sub-Divisional Judicial
Magistrate (SDJM). The accused filed application under Section 438 CrPC before High Court
alleging that they were victims of a conspiracy. High Court declined to accept the prayer
made by appellant-accused to extend the protection available under Section 438 CrPC .
Hence the present appeal.

Head Notes

Disposing of the appeal, the Court

HELD : 1. The facility which Section 438 of the Code gives is generally referred to as
`anticipatory bail'. The distinction between an ordinary order of bail and an order under
Section 438 of the Code is that whereas the former is granted after arrest, and therefore
means release from custody of the Police, the latter is granted in anticipation of arrest and is
therefore effective at the very moment of arrest. [193-F, H; 194-A] Gur Baksh Singh v. State
of Punjab, [1980] 2 SCC 565, relied on. Balachand Jain v. State of Madhya Pradesh, AIR
(1977) SC 366, referred to.

2. The power exercisable under Section 438 CrPC is somewhat extraordinary in character
and it is only in exceptional cases where it appears that the person may be falsely implicated
or where there are reasonable grounds for holding that a person accused of an offence is not
likely to otherwise misuse his liberty then power is to be exercised under Section 438. The

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power being of important nature it is entrusted only to the higher echelons of judicial forums,
i.e. the Court of Session or the High Court. It is the power exercisable in case of an
anticipated accusation of non-bailable offence. The object which is sought to be achieved by
Section 438 of the Code is that the moment a person is arrested, if he has already obtained
an order from the Court of Session or High Court, he shall be released immediately on bail
without being sent to jail. [194-D-F]

3.1. Sections 438 and 439 operate in different fields. It was held in Nirmal Jeet Kaur's case
and Sunita Devi's case that for making an application under Section 439 the fundamental
requirement is that the accused should be in custody. As observed in Salauddin's case the
protection in terms of Section 438 is for a limited duration during which the regular Court has
to be moved for bail. Obviously, such bail is bail in terms of Section 439 of the Code,
mandating the applicant to be in custody. Otherwise, the distinction between orders under
Sections 438 and 439 shall be rendered meaningless and redundant. [194-F; 197-A-B]
Salauddin Abdulsamad Shaikh v. State of Maharashtra, AIR (1996) SC 1042 and Niranjan
Singh and Anr. v. Prabhakar Rajaram Kharote and Ors., AIR (1980) SC 785, relied on.

K.L. Verma v. State and Anr., (1996) 7 SCALE 20; Nirmal Jeet Kaur v. State of M.P. and Anr.,
[2004] 7 SCC 558 and Sunita Devi v. State of Bihar and Anr., Criminal Appeal arising out of
SLP (Crl.) No. 4601 of 2003 disposed of by Supreme Court on 6.12.2004, referred to.

3.2. If the protective umbrella of Section 438 is extended beyond what was laid down in
Salauddin's case the result would be clear by-passing of what is mandated in Section 439
regarding custody. In other words, till the applicant avails remedies upto higher Courts, the
requirements of Section 439 become dead letter. No part of a statute can be rendered
redundant in that manner. [197-C-D]

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4.1. Section 438 is a procedural provision which is concerned with the personal liberty of an
individual who is entitled to plead innocence, since he is not on the date of application for
exercise of power under Section 438 of the Code convicted for the offence in respect of
which he seeks bail. The applicant must show that he has `reason to believe' that he may be
arrested in a non-bailable offence. Use of the expression `reason to believe' shows that the
applicant may be 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 vague
apprehension that someone is going to make an accusation against him in pursuance of
which he may be arrested. Grounds on which the belief on the applicant is based that he
may be arrested in non-bailable offence must be capable of being examined. [197-D-F]

4.2. The provisions cannot be invoked after arrest of the accused. A blanket order should not
be generally passed. It flows from the very language of the section which requires the
applicant to show that he has reason to believe that he may be arrested. Normally a direction
should not issue to the effect that the applicant shall be released on bail "whenever arrested
for whichever offence whatsoever". Such `blanket order' should not be passed as it would
serve as a blanket to cover or protect any and every kind of allegedly unlawful activity. An
order under Section 438 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. [197-G-H; 198-A-B]

5. An application under Section 438 of the Code can be moved only by a person who has not
already been arrested. Once he is arrested, his remedy is to move the concerned Court
either under Section 437 or Section 439 of the Code. In the very nature of the direction which
the Court can issue under Section 438 of the Code, it is clear that the direction is to be
issued only at the pre-arrest stage. The direction becomes operative only after arrest. The

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condition precedent for the operation of the direction issued is arrest of the accused. This
being so, the irresistible inference is that while dealing with an application under Section 438
of the Code the Court cannot restrain arrest. [198-E-F]

6. The legality of the proposed arrest cannot be gone into in an application under Section
438 of the Code. The role of the investigator is well-defined and the jurisdictional scope of
interference by the Court in the process of investigation is limited. The Court ordinarily will
not interfere with the investigation of a crime or with the arrest of accused in a cognizable
offence. An interim order restraining arrest, if passed while dealing with an application under
Section 438 of the Code will amount to interference in the investigation, which cannot, at any
rate, be done under Section 438 of the Code. [199-A-B]

7. While upholding the rejection of the prayer in terms of Section 438 of the Code, no opinion
is expressed on merits of the case. When the bail application is moved in terms of Section
439 of the Code before the concerned Court the same shall be considered in its proper
perspective in accordance with law. The SDJM would do well to dispose it of on the day it is
filed. In case the prayer for bail is rejected and an application for bail is filed before the
District and Sessions Judge, the said Court would do well to dispose of the application as
early as practicable. If it is filed at a later date, the District and Sessions Judge would make
an effort to dispose it of within three days of its filing. [199-C-E]

Shivaji @ Dadya Shankar Alhat .. Appellant Vs. The State of

Maharashtra ..Respondent

September 5, 2008

(Dr. ARIJIT PASAYAT) ( Dr. MUKUNDAKAM SHARMA)

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Dr. ARIJIT PASAYAT, J.

A large number of cases in recent times coming before this Court involving rape and
murder of young girls, is a matter of concern. In the instant case victim was about nine years of age
who was the victim of sexual assault and animal lust of the accused-appellant; she was not only raped but was

murdered by the accused appellant.

The Learned Second Additional Judge, Pune tried the appellant for offences
punishable under Sections 302 and Section 376 (2)(f) of the Indian Penal Code, 1860 and the
trial court found the appellant guilty for the aforesaid offences and he was sentenced to death for the offence of

murder and in respect of the other offence sentence to suffer rigorous imprisonment for ten years and to pay

fine with default stipulation. Appellant questioned the judgment before the Bombay High Court which heard the

same alongwith Confirmation Case which was referred to the High Court as required under Section 366 of the

Code of Criminal Procedure, 1973 (in short the `Code'), for confirmation of death sentence. The appeals were

heard together, the reference was accepted but the appeal filed by the accused was dismissed.

The Prosecution version

Shivaji-appellant (hereinafter referred to as the `accused') is an educated person was serving

as teacher at Pune in the year 1986. He was staying with his mother and sister near the
house of Hemlata (hereinafter referred to as the `deceased'), a tiny girl who had not seen ten
summers in life. The accused is a married man and has three children. His wife and children
were not residing with him. The accused was known to the deceased and her family. The
deceased and her family used to sometime give him bread. The deceased was studying in
5th standard. She has two sisters (PW 8). Her mother (PW 2) was working as a maid. All of
them were staying with their grandmother (PW 7). The father of the deceased was not
staying with them on account of strained relationship between him and the mother of
deceased. The incident in question occurred on 14th January, 2002. On that day there was
festival of Makarsankranti. At about 11.30 a.m., the deceased and her sister had gone to the
borewell to fetch water. The accused was sitting on the slab, where construction work was
going on. The accused told the deceased that he would give her fuel wood from the hill.
Thereafter they came to deceased's house. The deceased kept the pitcher in the house and

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she went alongwith the accused towards the hill. Thereafter the deceased did not return
home. The mother came home at about 4.30 P.M. She was told that her daughter had gone
with the accused and had not returned. They started searching for the deceased but could
not find her. On the same day, the grandmother of the deceased gave a missing complaint to
the police in which she stated that the deceased had left the house with the accused and had
not come back. Search was going on to find out the deceased. It appears that the mother of
deceased got to know from one Sakinabai that dead body of her daughter was lying on hill.
She also gave information to the police on 15th January, 2002 regarding missing of her
daughter. In this complaint she also stated that the deceased had left the house
alongwith the accused. After seeing the dead body of her daughter at Hospital, the mother
reported the matter to the police. Her complaint came to be recorded in which she stated that
her daughter had left with the accused on 14.1.2002. She specifically stated that she was
convinced that, it is the accused who had raped her daughter and assaulted her on
her abdomen with a sharp edged weapon, strangulated her with a rope and murdered
her. On the basis of this FIR investigation started. The accused was not traceable. He
could be arrested only on 16th January, 2002. He was found hiding in the sugarcane
crop. After completion of the investigation the accused came to be charged as aforesaid.
Since the accused abjured guilt trial was held. Seventeen witnesses were examined to
further the prosecution version.

Prosecution examined (PW 2), the mother of the deceased and (PW 7), grandmother
of the

deceased. (PW 8) the sister of the deceased, (PW 9) and (PW 6) were examined to
establish the prosecution case that the accused and the deceased were last seen
together on 14th January, 2002 at about 11.30 a.m. going towards Hill.

The accused pleaded innocence and false implication. His case was that in fact at the
relevant point of time he was not present in the village and has gone to his daughter's house,
then to his sister's house.

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Learned trial court found the evidence cogent and found the accused guilty and
imposed the sentence. The appeal before the High Court was dismissed and the reference
made under Section 366 IPC was confirmed.

In support of the appeal learned counsel for the appellant submitted that the case at
hand is based on circumstantial evidence and the circumstances do not warrant conclusion
of guilt of the accused. Since the conviction was based on circumstantial evidence, no
death sentence should have been awarded and in any event this is not a case where
death sentence should have been imposed.

The deceased was thus a helpless poor girl of tender age. She had no protection of
the father. She was, therefore, a vulnerable girl.

When the mother of deceased came back, her mother told her that the deceased
had gone to

bring fuel wood along with the accused. Since the deceased did not come back they started
searching for her. The grandmother of the deceased gave a missing complaint to police on
14.1.2002.

So far as the last seen aspect is concerned it is necessary to take note of two
decisions of this court. In State of U.P. v. Satish [2005 (3) SCC 114] it was noted as follows:

"22. The last seen theory comes into play where the time-gap between the point of
time when the accused and the deceased were seen last alive and when the deceased
is found dead is so small that possibility of any person other than the accused being
the author of the crime becomes impossible. It would be difficult in some cases to
positively establish that the deceased was last seen with the accused when there is a long
gap and possibility of other persons coming in between exists. In the absence of any other
positive evidence toconclude that the accused and the deceased were last seen together, it

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would be hazardous to come to a conclusion of guilt in those cases. In this case there is
positive evidence that the deceased and the accused were seen together by witnesses
PWs. 3 and 5, in addition to the evidence of PW-2."

In Ramreddy Rajeshkhanna Reddy v. State of A.P. [2006 (10) SCC 172] it was
noted as follows:

"27. The last-seen theory, furthermore, comes into play where the time gap between
the point of time when the accused and the deceased were last seen alive and the deceased
is found dead is so small that possibility of any person other than the accused being the
author of the crime becomes impossible. Even in such a case the courts should look for
some corroboration". (See also Bodh Raj v. State of J&K (2002(8) SCC 45).)"

A similar view was also taken in Jaswant Gir v. State of Punjab [2005(12) SCC 438],
Kusuma Ankama Rao v State of A.P. (2008(9) SCALE 652) and in Manivel & Ors. v. State of
Tamil Nadu ( 2008(5) Supreme 577).

Before analyzing factual aspects it may be stated that for a crime to be proved it is not
necessary that the crime must be seen to have been committed and must, in all circumstancesbe
proved by direct ocular evidence by examining before the Court those persons who had seen its
commission. The offence can be proved by circumstantial evidence also. The principal fact or
factum probandum may be proved indirectly by means of certain inferences drawn from factum
probans, that is, the evidentiary facts. To put it differently circumstantial evidence is not direct
to the point in issue but consists of evidence of various other facts which are so closely
associated with the fact in issue that taken together they form a chain of circumstances from
which the existence of the principal fact can be legally inferred or presumed.

It has been consistently laid down by this Court that where a case rests squarely on
circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts
and circumstances are found to be incompatible with the innocence of the accused or the guilt of any
other person. (See Hukam Singh v. State of Rajasthan AIR (1977 SC 1063); Eradu and Ors. v.
State of Hyderabad (AIR 1956 SC 316); Earabhadrappa v. State of Karnataka (AIR 1983

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SC 446); State of U.P. v. Sukhbasi and Ors. (AIR 1985 SC 1224); Balwinder Singh v. State of
Punjab (AIR 1987 SC 350); Ashok Kumar Chatterjee v. State of M.P. (AIR 1989 SC 1890).
The circumstances from which an inference as to the guilt of the accused is drawn have to
be proved beyond reasonable doubt and have to be shown to be closely connected with the
principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of
Punjab (AIR 1954 SC 621), it was laid down that where the case depends upon the
conclusion drawn from circumstances the cumulative effect of the circumstances must be
such as to negative the innocence of the accused and bring the offences home beyond any
reasonable doubt.

We may also make a reference to a decision of this Court in C. Chenga Reddy and Ors.
v. State of A.P. (1996) 10 SCC 193, wherein it has been observed thus:

"In a case based on circumstantial evidence, the settled law is that the
circumstances from which the conclusion of guilt is drawn should be fully proved and
such circumstances must be conclusive in nature. Moreover, all the circumstances
should be complete and there should be no gap left in the chain of evidence. Further
the proved circumstances must be consistent only with the hypothesis of the guilt of
the accused and totally inconsistent with his innocence....".

In Padala Veera Reddy v. State of A.P. and Ors. (AIR 1990 SC 79), it was laid down that
when a case rests upon circumstantial evidence, such evidence must satisfy the following
tests:

"(1) the circumstances from which an inference of guilt is sought to be drawn, must
be cogently and firmly established;

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(2) those circumstances should be of a definite tendency unerringly pointing

towards guilt of the accused;

(3) the circumstances, taken cumulatively should form a chain so complete that
there is no escape from the conclusion that within all human probability the crime was
committed by the accused and none else; and

(4) the circumstantial evidence in order to sustain conviction must be complete and
incapable of explanation of any other hypothesis than that of the guilt of the accused and
such evidence should not only be consistent with the guilt of the accused but should
be inconsistent with his innocence."

In State of U.P. v. Ashok Kumar Srivastava, (1992 Crl.LJ 1104), it was pointed out that
great care must be taken in evaluating circumstantial evidence and if the evidence relied
on is reasonably capable of two inferences, the one in favour of the accused must be
accepted.

Sir Alfred Wills in his admirable book "Wills' Circumstantial Evidence"

(Chapter VI) lays down the following rules specially to be observed in the case of
circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be
clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the
burden of proof is always on the party who asserts the existence of any fact, which infers
legal accountability; (3) in all cases,whether of direct or circumstantial evidence the best
evidence must be adduced which the nature of the case admits; (4) in order to justify the
inference of guilt, the inculpatory facts must be incompatible with the innocence of the
accused and incapable of explanation, upon any other reasonable hypothesis than that of
his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of
right to be acquitted".

A reference may be made to a later decision in Sharad Birdhichand Sarda v. State

of Maharashtra, (AIR 1984 SC 1622). Therein, while dealing with circumstantial evidence, it
has been held that onus was on the prosecution to prove that the chain is complete

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and the infirmity of lacuna in prosecution cannot be cured by false defence or plea.
The conditions precedent in the words of this Court, before conviction could be based on
circumstantial evidence, must be fully established. They are:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully
established. The circumstances concerned must or should and not may be
established;

(2) the facts so established should be consistent only with the hypothesis of the
guilt

of the accused, that is to say, they should not be explainable on any other
hypothesis except that the accused is guilty;

(3) the circumstances should be of a conclusive nature and tendency;

(4) they should exclude every possible hypothesis except the one to be proved;
and

(5) there must be a chain of evidence so compete as not to leave any reasonable
ground for the conclusion consistent with the innocence of the accused and must
show that in all human probability the act must have been done by the accused.

In Damodar v. State of Karnataka [2000 SCC (Crl) 90] it was, inter alia, observed as
follows:

"From the evidence of PWs. 1,6,7 & 8 the prosection has satisfactorily established
that the appellant was last seen with the deceased on 30.4.91. The appellant either in his
Section 313 Cr.P.C. statement or by any other evidence has not established when and where
he and the deceased parted company after being last seen."

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Protection of society and stamping out criminal proclivity must be the object of law
which must be achieved by imposing appropriate sentence.The facts and given
circumstances in each case, the nature of the crime, the manner in which it was
planned and committed, the motive for commission of the crime, the conduct of the
accused, the nature of weapons used and all other attending circumstances are
relevant facts which would enter into the area of consideration. For instance a murder
committed due to deep- seated mutual and personal rivalry may not call for penalty of
death. But an organised crime or mass murders of innocent people would call for
imposition of death sentence as deterrence. It is, therefore, the duty of every court to
award proper sentence having regard to the nature of the offence and the manner in which it
was executed or committed etc. This position was illuminatingly stated by this Court in
Sevaka Perumal etc. v. State of Tamil Naidu (AIR 1991 SC 1463).

In Dhananjoy Chatterjee v. State of W.B. (1994 (2) SCC220), this Court has observed
that shockingly large number of criminals go unpunished thereby increasingly, encouraging
the criminals and in the ultimate making justice suffer by weakening the system's creditability.
The imposition of appropriate punishment is the manner in which the Court responds to the
society's cry for justice against the criminal. Justice demands that Courts should impose
punishment befitting the crime so that the Courts reflect public abhorrence of the
crime. The Court must not only keep in view the rights of the criminal but also the
rights of the victim of the crime and the society at large while considering the
imposition of appropriate punishment.

Similar view has also been expressed in Ravji v. State of Rajasthan, (1996 (2) SCC
175). It has been held in the said case that it is the nature and gravity of the crime but not the
criminal, which are germane for consideration of appropriate punishment in a criminal trial.
The punishment to be awarded for a crime must not be irrelevant but it should conform to
and be consistent with the atrocity and brutality with which the crime has been perpetrated.

These aspects have been elaborated in State of M.P. v. Munna Choubey [2005 (2) SCC
712].

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In Machhi Singh v. State of Punjab [1983 (3) SCC 470] in para 38 the position was
summed up as follows: (SCC p. 489)

"38. The following propositions emerge from Bachan Singh's case (supra):

(i) The extreme penalty of death need not be inflicted except in gravest cases
of extreme culpability.

(ii) Before opting for the death penalty the circumstances of the `offender' also
require to be taken into consideration along with the circumstances of the `crime'.

(iii) Life imprisonment is the rule and death sentence is an exception. In other
words death sentence must be imposed only when life imprisonment appears to be an
altogether inadequate punishment having regard to the relevant circumstances of the crime,
and provided, and only provided, the option to impose sentence of imprisonment for life
cannot be conscientiously exercised having regard to the nature and circumstances of the
crime and all the relevant circumstances.

(iv) A balance sheet of aggravating and mitigating circumstances has to be drawn

up and in doing so the mitigating circumstances have to be accorded full weightage and a
just balance has to be struck between the aggravating and the mitigating circumstances
before the option is exercised."

The position was again reiterated in Devender Pal Singh v. State of NCT of Delhi
[2002 (5)SCC 234 ] : (SCC p. 271, para58)

"58. From Bachan Singh 's case (supra) and Machhi Singh's case (supra) the principle
culled out is that when the collective conscience of the community is so shocked, that it will
expect the holders of the judicial power centre to inflict death penalty irrespective of their
personal opinion as regards desirability or otherwise of retaining death penalty, the same can
be awarded. It was observed:

The community may entertain such sentiment in the following circumstances:

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