ANTICIPATARY BAIL-Cr.P.C SOMEIMPORTANT CASE LAWS

ANTICIPATARY BAIL-438 Cr.P.C

There are many misconceptions floating around regarding Anticipatory Bail. One such misconception is that a 498acase is an automatic arrest warrant. However, it does not necessarily have to be so. In 498A cases, the moment youget an anticipatory bail, the police are eliminated as a factor and you’ve pretty much won the most difficult part ofthis fight. Another misconception is that the filing of FIR is a must before getting Anticipatory Bail. Again, this issimply 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 ofrecent 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 hemay be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or theCourt of Sessions for a direction under this section, and that Court may, if it thinks fit, direct that in the event of sucharrest, he shall be released on bail.

As observed in Balchand Jain Vs. State of M.P., `anticipatory bail' means `bail in anticipation of arrest'. Theexpression `anticipatory bail' is a misnomer inasmuch as it is not as if bail is presently granted by the Court inanticipation 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, itis 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 underSection 438. The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if anFIR 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. Hereare the 9 guidelines as laid down by a constitution bench, which the Courts are required to keep in mind whiledealing 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 onlybecause it is of an extraordinary character. Nonetheless, the discretion under the Section has to be exercisedwith 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 thatthe applicant invoking the provision has reason to believe that he is likely to be arrested for a non-bailableoffence and that belief must be founded on reasonable grounds. Mere “fear” is not belief, for which reason, it isnot enough for the applicant to show that he has some sort of vague apprehension that some one is going to makean accusation against him, in pursuance of which he may be arrested. The grounds on which the belief of theapplicant is based that he may be arrested for a non-bailable offence, must be capable of being examined by theCourt objectively. Specific events and facts must be disclosed by the applicant in order to enable the Court tojudge 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 bySection 438 and regarding the question whether the conditions mentioned in Section 437 should be read intoSection 438 cannot be treated as conclusive on the point. There is no warrant for reading into Section 438, theconditions subject to which bail can be granted under Section 437(1) of the Code and therefore, anticipatory bailcannot be refused in respect of offences like criminal breach of trust for the mere reason that the punishmentprovided 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 justifyingsuch refusal.

iv) No blanket order of bail should be passed and the Court which grants anticipatory bail must take care tospecify the offence or the offences in respect of which alone the order will be effective. While granting reliefunder Section 438(1) of the Code, appropriate conditions can be imposed under Section 438(2) so as to ensure anuninterrupted investigation. One such condition can even be that in the event of the police making out a case ofa likely discovery under Section 27 of the Evidence Act, the person released on bail shall be liable to be taken inpolice custody for facilitating the recovery. Otherwise, such an order can become a charter of lawlessness and aweapon to stifle prompt investigation into offences which could not possibly be predicated when the order waspassed.

v) The filing of First Information Report (FIR) is not a condition precedent to the exercise of power underSection 438. The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if anFIR 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 accusedmust seek his remedy under Section 437 or Section 439 of the Code, if he wants to be released on bail in respect ofthe 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 Prosecutorbut notice should be issued to the Public Prosecutor or to the Government advocate forthwith and the question ofbail should be re-examined in the light of respective contentions of the parties. The ad-interim order too mustconform to the requirements of the Section and suitable conditions should be imposed on the applicant even at thatstage.

ix) Though it is not necessary that the operation of an order passed under Section 438(1) of the Code be limitedin point of time but the Court may, if there are reasons for doing so, limit the operation of the order to a shortperiod until after the filing of FIR in respect of the matter covered by the order. The applicant may, in suchcases, be directed to obtain an order of bail under Section 437 or 439 of the Code within a reasonable shortperiod after the filing of the FIR.

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 thedeceased- Laxmi. They are accused of having committed offences punishable under Sections 498A, 304-B readwith Section 34 of the Indian Penal Code, 1860 (for short `the IPC') and Sections 3 and 4 of the DowryProhibition Act, 1961.

Material facts, leading to the filing of these appeals, are as follows: The deceased-Laxmi got married to appellant No.3on 26th January, 2006. On 13th October, 2006, they were blessed with a baby boy. On 6th December, 2007 atabout 4.30 p.m., appellant No.2 (father-in-law) is stated to have heard the cries of Laxmi and when he rushed to thesecond floor of the house, he saw her burning. He tried to douse the fire. Laxmi told him that her son was lying in thebathroom. He rushed to the bathroom and found that the child also had burns. Laxmi and her child were removed tothe hospital. At about 6.40 p.m., her statement was recorded by the Executive Magistrate wherein she stated thatshe and her son caught fire when she was pouring kerosene oil in the lamp which accidentally fell down; theoil got spilled over and both of them got burnt. At about 10.55 p.m., the minor child expired. On receiving theintimation, parents of Laxmi reached the hospital at about 11.30 p.m. the same night. On 7th December, 2007, atabout 1.40 p.m. another statement of Laxmi was recorded by the Executive Magistrate wherein again shereiterated that she had got burnt accidentally.

On 8th December, 2007, father of Laxmi lodged a complaint with Police against the appellants, inter alia, alleging thatafter the marriage of his daughter on 26th January, 2006, the appellants were torturing her for not meeting dowrydemand of Rs.2 lakhs and earlier on 15th July, 2006, due to torture she had left the matrimonial home, intendingto commit suicide but due to intervention of the relatives, she returned back. On the said complaint, the policeregistered an FIR against the appellants for offences under Section 498A read with Section 34, IPC andSections 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 dateof hearing i.e. 17th December, 2007. On 16th December, 2007, Laxmi expired and offence under Section 304-BIPC came to be added against the appellants. On 18th December, 2007, after hearing both sides and upon takinginto consideration the said two dying declarations made by the deceased - Laxmi, statements of the complainantand witnesses and after perusing the case diary, the learned Sessions Judge confirmed the anticipatory bailgranted to the appellants.

Aggrieved, the State of Maharashtra and the complainant filed petitions before the High Court for cancellation ofanticipatory bail granted to the appellants. As noted earlier, by the impugned order, the High Court has cancelledthe anticipatory bail granted to the appellants, on the ground that the Sessions Judge had failed to apply hismind 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 familywere present in the house and had everything been well in the house, there was no occasion for the parents ofthe 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 setaside 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 beforeus in these appeals.

The appellants contended that the High Court has failed to appreciate the factual background of the case, particularly thefact that in both the dying declarations recorded by the Executive Magistrate, the deceased had not levelledany allegation against the appellants for demanding any dowry or for torturing her for any other purpose. Itwas strenuously urged 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 inthe hospital on 6th December, 2007 at 11.30 p.m., yet the deceased did not level any allegation against theappellants. Learned counsel argued that the anticipatory bail having been granted by the Sessions Judge uponconsideration 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 theInvestigating Officer that the appellants were not cooperating in the investigations after the grant of interimprotection on 10th December, 2007, or that they had misused the anticipatory bail granted to them, there was noother overwhelming circumstance before the High Court, warranting interference with the judicial discretionexercised 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 theapplicant 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 ofM.P., `anticipatory bail' means `bail in anticipation of arrest'. The expression `anticipatory bail' is a misnomerinasmuch as it is not as if bail is presently granted by the Court in anticipation of arrest. When a competentcourt 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 theorder 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 aperson might be falsely implicated, or a frivolous case might be launched against him, or "there are reasonablegrounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his libertywhile on bail" that such power may be exercised. The power being rather unusual in nature, it is entrusted onlyto the higher echelons of judicial service, i.e. a Court of Session and the High Court. Thus, the ambit of powerconferred by Section 438 of the Code was held to be limited.

Keeping in view the reports of the Law Commission, Section 438 was inserted in the Code. Sub-section (1) of Section 438enacts that when any person has reason to believe that he may be arrested on an accusation of having committed anon-bailable offence, he may apply to the High Court or to the Court of Session for a direction that in the event ofhis arrest he shall be released on bail, and the Court may, if it thinks fit, direct that in the event of such arrest heshall be released on bail. Sub-section (2) empowers the High Court or the Court of Session to impose conditionsenumerated therein. Sub- section (3) states that if such person is thereafter arrested without warrant by an officerin 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 ofprinciples laid down by the Full Bench of High Court of Punjab & Haryana in Gurbaksh Singh Sibbia Vs. State ofPunjab. The Full Bench of the High Court summarized the law relating to anticipatory bail as reflected in Section438 of the Code and laid down eight principles which were to be kept in view while exercising discretionary powerto grant anticipatory bail.

The Court felt that wide discretionary power conferred by the Legislature on the higher echelons in the criminal justicedelivery system cannot be put in the form of straight-jacket rules for universal application as the question whether togrant bail or not depends for its answer upon a variety of circumstances, the cumulative effect of which must enterinto the judicial verdict. A circumstance which, in a given case, turns out to be conclusive, may or may not have anysignificance in another case. While cautioning against imposition of unnecessary restrictions on the scope of theSection, because, in its opinion, over generous infusion of constraints and conditions, which were not to be found inSection 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 unreasonablerestrictions, the Constitution Bench laid down the following guidelines, which the Courts are required to keep inmind 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 extraordinarycharacter, but this does not justify the conclusion that the power must be exercised in exceptional casesonly because it is of an extraordinary character. Nonetheless, the discretion under the Section has to beexercised 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 thatthe 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, forwhich reason, it is not enough for the applicant to show that he has some sort of vague apprehensionthat 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 bythe applicant in order to enable the Court to judge of the reasonableness of his belief, the existence of whichis 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 Section438 and regarding the question whether the conditions mentioned in Section 437 should be read into Section438 cannot be treated as conclusive on the point. There is no warrant for reading into Section 438, theconditions subject to which bail can be granted under Section 437(1) of the Code and therefore, anticipatorybail cannot be refused in respect of offences like criminal breach of trust for the mere reason that thepunishment provided for is imprisonment for life. Circumstances may broadly justify the grant of bail in suchcases too, though of course, the Court is free to refuse anticipatory bail in any case if there is material beforeit justifying such refusal.

iv) No blanket order of bail should be passed and the Court which grants anticipatory bail must take care tospecify the offence or the offences in respect of which alone the order will be effective. While grantingrelief under Section 438(1) of the Code, appropriate conditions can be imposed under Section 438(2) so asto ensure an uninterrupted investigation. One such condition can even be that in the event of the policemaking out a case of a likely discovery under Section 27 of the Evidence Act, the person released on bailshall be liable to be taken in police custody for facilitating the recovery. Otherwise, such an order canbecome a charter of lawlessness and a weapon to stifle prompt investigation into offences which could notpossibly 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 underSection 438. The imminence of a likely arrest 1 founded on a reasonable belief can be shown to exist evenif 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 accusedmust seek his remedy under Section 437 or Section 439 of the Code, if he wants to be released on bail inrespect 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 Prosecutorbut notice should be issued to the Public Prosecutor or to the Government advocate forthwith and thequestion of bail should be re-examined in the light of respective contentions of the parties. The ad-interimorder too must conform to the requirements of the Section and suitable conditions should be imposed onthe 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 limitedin point of time but the Court may, if there are reasons for doing so, limit the operation of the order to ashort 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 areasonable short period after the filing of the FIR.

At this juncture, it would be appropriate to note that the view expressed by this Court in Adri Dharan Das Vs. State ofW.B. to the effect that while dealing with an application under Section 438 of the Code, the Court cannot pass aninterim order restraining arrest as it will amount to interference in the investigation, does not appear to be inconsonance with the opinion of the Constitution Bench in Sibbia's case (supra). Similarly, the observation that powerunder 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 statedthus:

"The observations made in Balchand Jain regarding the nature of the power conferred by Section 438 and regardingthe question whether the conditions mentioned in Section 437 should be read into Section 438 cannot thereforebe treated as concluding the points which arise directly for our consideration. We agree, with respect, that thepower conferred by Section 438 is of an extraordinary character in the sense indicated above, namely, that it isnot ordinarily resorted to like the power conferred by Sections 437 and 439. We also agree that the power togrant anticipatory bail should be exercised with due care and circumspection but beyond that, it is not possibleto agree with the observations made in Balchand Jain in an altogether different context on an altogetherdifferent 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 theHigh Court has committed a serious error in reversing the order passed by the Additional Sessions Judge, Amravatigranting anticipatory bail to the appellants. The learned Sessions Judge passed the order after due consideration ofthe facts and circumstances of the case, in particular, the two dying declarations, one recorded in the presenceof the parents of the deceased and the statements of the members of the Women Cell who had dealt with the casewhen on 15th July, 2006, the deceased had left the house with intention to commit suicide and therefore, itcannot be said that the judicial discretion exercised in granting anticipatory bail was perverse or erroneous,warranting interference by the High Court. The order passed by the Sessions Judge was supported by reasons tothe extent required for exercise of judicial discretion in the matter of grant of bail. It may be true that some ofthe circumstances, noticed by the High Court in the impugned order, viz., no reference to lantern in the spotpanchnama 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 whichweighed with the Sessions Judge in granting bail were irrelevant to the issue before him, rendering the order asperverse. Moreover, merely because the High Court had a different view on same set of material, which hadbeen taken into consideration by the Sessions Judge, in our view, was not a valid ground to label the orderpassed 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 ofHaryana, while dealing with a similar situation where the High Court had cancelled the anticipatory bail grantedby the Sessions Judge in a dowry death case, this Court had observed that rejection of bail in a non- bailable caseat the initial stage and the cancellation of bail had to be considered or dealt with on different basis. Very cogentand 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 beinferred that the appellants have not co-operated in the investigations or have, in any manner, abused theconcession of bail granted to them. As a matter of fact, Mr. Naphade, learned senior counsel representing theState, 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 appellantsby the learned Additional Sessions Judge, cannot be sustained. Accordingly, the appeals are allowed; impugnedorder is set aside and the order dated 18th December, 2007 passed by the Additional Sessions Judge confirming thead-interim anticipatory bail to the appellants, is restored. It goes without saying that nothing said by the High Courtor by us hereinabove shall be construed as expression of any opinion on the merits of the case.

Both the appeals stand disposed of, accordingly.

..................................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 tobelieve that he may be arrested on an accusation of having committed a non- bailable offence, he may apply to theHigh Court or the Court of Session for a direction under this Section. Rule 184 of the Rules made under Defenceand Internal Security of India Act, 1971 enacts that notwithstanding anything contained in the Code of CriminalProcedure, 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 tooppose the application for such release and (b) where the prosecution opposes the application and thecontravention is of any such provision of the Rules or orders made thereunder as the Central Government or theState Government may, by notified order specify in this behalf, the Court is satisfied that there are reasonablegrounds 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 unders. 438 of the Code of Criminal Procedure, 1973. The Sessions Judge rejected the application. Dismissing hisappeal, the High Court held that the express provisions of r. 184 of the Rules superseded s. 438 of the Code in sofar 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 andthere is no overlapping between these two provisions. Rule 184 does not stand in the way of a Court of Sessionsor a High Court granting anticipatory bail under s. 438. [57G]

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 theevent of arrest a person shall be released on bail. This somewhat extraordinary power is exercised only inexceptional cases and is entrusted to the higher echelons of the judicial service namely the court of Sessionsand the High Court. [55H]

2. Rule 184 postulates the existence of power in the court under the Code and seeks to place a curb onits 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 aself-contained code for grant of bail. 1t cannot be construed as displacing altogether the provisions of the Code inregard to bail. The provisions of the Code must be read alongwith r. 184 and full effect must be given to themexcept 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 anapplication, the direction that may be given under s. 438 is that in the event of his arrest the applicant shallbe released on bail.

Section 438 of the Code has not been repealed by r. 184 of the Rules, but both have to be readharmoniously. Rule 184 is only supplemental to 8. 438 and contains guidelines which have to be followed by theCourt 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 onlyin special cases. [70C]

(b) Section 438 applies only to non-bailable offences. Anticipatory bail being anextraordinary remedy available in special cases, this power has been conferred on the higher echelons ofjudicial service, namely, the Court of Sessions or the High Court. What the section contemplates is not

anticipatory bail but merely an order releasing an accused on bail in the event of his arrest. There can be noquestion of bail unless a person is under detention or custody. The object of s. 438 is that the moment aperson 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 latteronly if it causes inconvenience or where it is couched in negative terms. The legislature does not intend to keepcontradictory enactments on the statute book and, therefore, a construction should be accepted which offersan escape from it. [66A-C] Aswini Kumar Ghosh and Anr. v. Arabinda Bose and Anr. [1953] S.C.R. 1referred 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, theLegislature in its wisdom left it to the Court to bring about a harmonious construction of the two statutes so thatthe 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 foranticipatory bail; but such an order being of an exceptional type can only be passed if, apart from theconditions mentioned in s. 437. there is a special case for passing the order. The words 'for a direction underthis section' and 'Court may, if it thinks fit, direct' clearly show that the Court has to be guided by a largenumber of considerations, including those mentioned in s. 437. When a Court is dealing with offencescontemplated by r. 184 it is obvious that though the offences are not punishable with death or imprisonmentfor life so as to attract the provisions of s. 437, the conditions laid down by r. 184 would have to becomplied with before an 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-bailableoffences but also to bailable offences and, therefore, the conditions mentioned in r. 184, would have to be impliedlyimported 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

The appellant herein, Sri Gurbaksh Singh Sibbia was a Minister of Irrigation and Power in the Congress Ministryof 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 theaforesaid charges.

Considering the importance of the matter, a learned single Judge referred the applications to a FullBench, which by its judgment dated September, 13, 1977 dismissed them, after summarising, what according to itis 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 ofblanket 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 outspecial 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 Section167(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 canbe made out, the power under Section 438 should not be exercised.

(6) The discretion under Section 438 cannot be exercised with regard to offencespunishable 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 besatisfied on materials before it that the allegations of mala fides are substantial and the accusationappears 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 theobservation that to accord differential treatment to the appellants on account of their status will amount tonegation of the concept of equality before the law and that it could hardly be contended that every man ofstatus, who was intended to be charged with serious crimes including the one under section 409 was punishablewith life imprisonment, "was entitled to knock at the door of the Court for anticipatory bail". The possession ofhigh 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 "notlimited to the contigencies" summarised by the High Court; (b) The power to grant anticipatory bailought 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 leanagainst the imposition of unnecessary restrictions on the scope of Section 438, when no suchrestrictions are imposed by the legislature in the terms of that section (d) Section 438 is a proceduralprovision which is concerned with the personal liberty of an individual who has not been convicted of theoffence in respect of which he seeks bail and who must be presumed to be innocent. The validity of thatsection must accordingly be examined by the test of fairness and which is implicit in Article 21. Imposition ofan unfair or unreasonable limitation would be violative of Article 21 irrespective of whether it is imposedby 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 investigationalpower 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 awise and careful use of their discretion which by their long training and experience, they are ideally suited todo. The ends of justice will be better served by trusting these courts to act objectively and in consonance withprinciples 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 begranted. 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 beso arrested must be founded on reasonable grounds. Mere 'fear' is not 'belief', for which reason it is notenough for the applicant to show that he has some sort of a vague apprehension that some one isgoing 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 bearrested for a non-bailable offence, must be capable of being examined by the court objectively, because it isthen 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 vagueand general allegations, as if to arm oneself in perpetuity against a possible arrest. Otherwise, the numberof applications for anticipatory bail will be as large, as, at any rate, the adult populace. Anticipatory bailis a device to secure the individual's liberty; it is neither a passport to the commission of crimes nor ashield 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 itmust apply its own mind to the question and decide whether a case has been made out for granting suchrelief. 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 powerunder Section 438. The imminence of a likely arrest founded on a reasonable belief can be shown to existeven 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 notbeen 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 theoffence or offences for which he is arrested, are concerned. After arrest, the accused must seek his remedyunder Section 437 or Section 439 of the Code, if he wants to be released on bail in respect of theoffence or offences for which he is arrested. [418 C-E]

4. However, a "blanket order" of anticipatory bail should not generally be passed. This flows from thevery language of the section which requires the appellant to show that he has "reason to believe" that hemay be arrested. A belief can be said to be founded on reasonable grounds only if there is somethingtangible to go by on the basis of which it can be said that the applicant's apprehension that he may bearrested is genuine. That is why, normally, a direction should not issue under Section 438(1) to the effect thatthe applicant shall be released on bail "whenever arrested for which ever offence whatsoever". That is what ismeant by a 'blanket order' of anticipatory bail, an order which serves as a blanket to cover or protect anyand every kind of allegedly unlawful activity, in fact any eventuality, likely or unlikely regarding which, noconcrete information can possibly be bad. The rationale of a direction under Section 438(1) is the belief ofthe 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 acivil case and such is not requirement of the section. But specific events and facts must be disclosed by theapplicant 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 theduty of the police in the matter of investigation because, regardless of what kind of offence is alleged to havebeen committed by the applicant and when, an order of bail which comprehends allegedly unlawful activityof 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 inrespect of which alone the order will be effective. The power should not be exercised in a vacuum. [419 C-E]

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. Thead-interim order too must conform to the requirements of the section and suitable conditions should beimposed 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 oftime. The Court may, if there are reasons for doing so, limit the operation of the order to a short perioduntil after the filing of an F.I.R. in respect of the matter covered by the order. The applicant may in suchcases 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 normalrule 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. Theact of arrest directly affects freedom of movement of the person arrested by the police, and speakinggenerally, an order of bail gives back to the accused that freedom on condition that he will appear to takehis 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 theformer is granted after arrest and therefore means release from the custody of the police, the latter isgranted 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 whichthe 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 Code of Criminal Procedurewhich deals with how arrests are to be made, provides that in making the arrest the police officer or otherperson 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 conditionalimmunity 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 anticipatorybail 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 iswhy, departing from the terms of Sections 437 and 439, Section 438(1) uses the language that the High Court orthe 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 thegrant 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 proofof 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 begiven their full effect, especially when to refuse to do so will result in undue impairment of the freedom of theindividual 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. Aperson 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 play to the presumption thathe 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-bailableoffences 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 theconditions 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 imposesuch conditions as they may think fit while granting anticipatory bail, should not be cut down, by a process ofconstruction, by reading into the statute conditions which are not to be found therein like those evolved by theHigh Court. The High Court and the Court of Session to whom the application for anticipatory bail is made oughtto 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 mustbe left free to refuse bail if the circumstances of the case so warrant, on considerations similar to thosementioned 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 universalapplication when facts are bound to differ from case to case frustrate the very purpose of conferring discretion. Notwo 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 riskinvolved in entrusting a wide discretion to the Court of Session and the High Court in granting anticipatory bailbecause, firstly these are higher courts manned by experienced persons, secondly their order are not final but areopen to appellate or revisional scrutiny and above all because, discretion has always to be exercised by courtsjudicially and not according to whim, caprice or fancy. On the other hand, there is a risk in foreclosing categories ofcases in which anticipatory bail may be allowed because life throws up unforeseen possibilities and offers newchallenges. Judicial discretion has to be free enough to be able to take these possibilities in its stride and to meetthese 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 andprejudices out of their decisions. And it will be strange if, by employing judicial artifices and techniques, thisCourt cuts down the discretion so wisely conferred upon the Courts, by devising a formula which will confine thepower to grant anticipatory bail within a strait-jacket. While laying down cast-iron rules in a matter like grantinganticipatory bail, as the High Court has done, it is apt to be overlooked that even Judges can have but an imperfectawareness of the needs of new situations. Life is never static and every situation has to be assessed in the context ofemerging concerns as and when it arises. Therefore, even if this Court were to frame a 'Code for the grant ofanticipatory bail', which really is the business of the legislature, it can at best furnish broad guidelines and cannotcompel blind adherence. In which case to grant bail and in which to refuse it is, in the very nature of things, a matterof discretion. But apart from the fact that the question is inherently of a kind which calls for the use of discretionfrom case to case, the legislature has, in terms express, relegated the decision of that question to the discretion ofthe Court, by providing that it may grant bail "if it thinks fit". The concern the Courts generally is to preserve theirdiscretion without meaning to abuse it. It will be strange if the Court exhibits concern to stultify the discretionconferred upon the Courts by law. [406 D-H]

Discretion, therefore, ought to be permitted to remain in the domain of discretion, to be exercised objectivelyand 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. Anorder 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 usualconditions 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 thewitnesses during and after the investigation. While granting relief under Section 438(1), appropriate conditions canbe imposed under Section 438(2), so as to ensure an uninterrupted investigation. One of such conditions caneven 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, ifand 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 onbail. [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 theprovisions of Section 438 relating to anticipatory bail stand overruled or repealed by virtue of Rule 184 of theDefence and Internal Security of India Rules, 1971 or whether both the provisions can by rule of harmoniousinterpretion, exist side by side. It was in that context that it was observed that "As section 438 immediatelyfollows Section 437 which is the main provision for bail in respect of non-bailable offences, it is manifest that theconditions imposed by s. 437(1) are implicitly contained in Section 438 of the Code". These observations regardingthe nature of the power conferred by section 438 and regarding the question whether the conditions mentioned inSection 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 notordinarily 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 theimposition of unnecessary restrictions on the scope of section 438, especially when no such restrictions havebeen 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 innocencesince he is not, on the date of his application for anticipatory bail, convicted of the offence in respect of which heseeks bail. An over-generous infusion of constraints and conditions which are not to be found in Section 438can make its provisions constitutionally vulnerable since the right to personal freedom cannot be made to dependon 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 furtheringthe ends of justice but from some ulterior motive, the object being to injure and humiliate the applicant byhaving him arrested a direction for the release of the applicant on bail in the event of his arrest would generally, bemade. 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 anorder would not be made. But the converse of these propositions is not necessarily true. That is to say itcannot 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 nofear that the applicant will abscond. There are several other considerations, too numerous to enumerate thecombined 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 thecharges, 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 ofthe considerations which the court has to keep in mind while deciding an application for anticipatory bail. [415G-H, 416 A-C] State v. Captain Jagjit Singh, [1962] 3 S.C.R. 622, followed.

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 forprotection 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-Interimorder restraining arrest, if passed while dealing with an application under S.438, will amount to interference in theinvestigation, which cannot be done under S.438.

Sections 438 and 439-Distinction between-Discussed.

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 takingaction in terms of Section 156(3) CrPC who directed the officer-in-charge of the concerned Police Station toinvestigate after taking the petition of complaint as FIR and to submit report before the Sub-Divisional JudicialMagistrate (SDJM). The accused filed application under Section 438 CrPC before High Court alleging that theywere victims of a conspiracy. High Court declined to accept the prayer made by appellant-accused to extend theprotection 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'. Thedistinction between an ordinary order of bail and an order under Section 438 of the Code is that whereas the formeris granted after arrest, and therefore means release from custody of the Police, the latter is granted in anticipation ofarrest 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 inexceptional cases where it appears that the person may be falsely implicated or where there are reasonable groundsfor holding that a person accused of an offence is not likely to otherwise misuse his liberty then power is to beexercised under Section 438. The power being of important nature it is entrusted only to the higher echelons ofjudicial forums, i.e. the Court of Session or the High Court. It is the power exercisable in case of an anticipatedaccusation 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 bereleased 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 casethat for making an application under Section 439 the fundamental requirement is that the accused should be incustody. As observed in Salauddin's case the protection in terms of Section 438 is for a limited duration duringwhich 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 439shall be rendered meaningless and redundant. [194-F; 197-A-B] Salauddin Abdulsamad Shaikh v. State ofMaharashtra, 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 558and Sunita Devi v. State of Bihar and Anr., Criminal Appeal arising out of SLP (Crl.) No. 4601 of 2003 disposed ofby 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 resultwould be clear by-passing of what is mandated in Section 439 regarding custody. In other words, till the applicantavails remedies upto higher Courts, the requirements of Section 439 become dead letter. No part of a statute can berendered redundant in that manner. [197-C-D]

4.1. Section 438 is a procedural provision which is concerned with the personal liberty of an individual who isentitled to plead innocence, since he is not on the date of application for exercise of power under Section 438 of theCode convicted for the offence in respect of which he seeks bail. The applicant must show that he has `reason tobelieve' that he may be arrested in a non-bailable offence. Use of the expression `reason to believe' shows that theapplicant may be arrested must be founded on reasonable grounds. Mere "fear" is not `belief' for which reason it isnot enough for the applicant to show that he has some sort of vague apprehension that someone is going to make anaccusation against him in pursuance of which he may be arrested. Grounds on which the belief on the applicant isbased 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. Itflows from the very language of the section which requires the applicant to show that he has reason to believe thathe 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 serveas a blanket to cover or protect any and every kind of allegedly unlawful activity. An order under Section 438 is adevice to secure the individual's liberty; it is neither a passport to the commission of crimes nor a shield against anyand 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 theCode. In the very nature of the direction which the Court can issue under Section 438 of the Code, it is clear that thedirection is to be issued only at the pre-arrest stage. The direction becomes operative only after arrest. The conditionprecedent for the operation of the direction issued is arrest of the accused. This being so, the irresistible inference isthat 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 roleof 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 ofaccused in a cognizable offence. An interim order restraining arrest, if passed while dealing with an application underSection 438 of the Code will amount to interference in the investigation, which cannot, at any rate, be done underSection 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 meritsof the case. When the bail application is moved in terms of Section 439 of the Code before the concerned Court thesame shall be considered in its proper perspective in accordance with law. The SDJM would do well to dispose it ofon the day it is filed. In case the prayer for bail is rejected and an application for bail is filed before the District andSessions Judge, the said Court would do well to dispose of the application as early as practicable. If it is filed at alater 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)

Dr. ARIJIT PASAYAT, J.

A large number of cases in recent times coming before this Court involving rape and murder of young girls, isa matter of concern. In the instant case victim was about nine years of age who was the victim of sexual assault and animal lust ofthe 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 302and Section 376 (2)(f) of the Indian Penal Code, 1860 and the trial court found the appellant guilty for the aforesaid offencesand he was sentenced to death for the offence of murder and in respect of the other offence sentence to suffer rigorous imprisonmentfor ten years and to pay fine with default stipulation. Appellant questioned the judgment before the Bombay High Court which heardthe same alongwith Confirmation Case which was referred to the High Court as required under Section 366 of the Code of CriminalProcedure, 1973 (in short the `Code'), for confirmation of death sentence. The appeals were heard together, the reference wasaccepted 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 theyear 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. Thedeceased and her family used to sometime give him bread. The deceased was studying in 5th standard. She has twosisters (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 themother of deceased. The incident in question occurred on 14th January, 2002. On that day there was festival ofMakarsankranti. At about 11.30 a.m., the deceased and her sister had gone to the borewell to fetch water. Theaccused was sitting on the slab, where construction work was going on. The accused told the deceased that hewould give her fuel wood from the hill. Thereafter they came to deceased's house. The deceased kept the pitcher inthe house and she went alongwith the accused towards the hill. Thereafter the deceased did not return home. Themother came home at about 4.30 P.M. She was told that her daughter had gone with the accused and had notreturned. They started searching for the deceased but could not find her. On the same day, the grandmother of thedeceased gave a missing complaint to the police in which she stated that the deceased had left the house with theaccused and had not come back. Search was going on to find out the deceased. It appears that the mother ofdeceased got to know from one Sakinabai that dead body of her daughter was lying on hill. She also gaveinformation to the police on 15th January, 2002 regarding missing of her daughter. In this complaint she alsostated 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 thather daughter had left with the accused on 14.1.2002. She specifically stated that she was convinced that, it is theaccused 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 accusedwas not traceable. He could be arrested only on 16th January, 2002. He was found hiding in the sugarcanecrop. After completion of the investigation the accused came to be charged as aforesaid. Since the accusedabjured 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 casethat the accused and the deceased were last seen together on 14th January, 2002 at about 11.30 a.m. goingtowards Hill.

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

Learned trial court found the evidence cogent and found the accused guilty and imposed the sentence. Theappeal 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 oncircumstantial evidence and the circumstances do not warrant conclusion of guilt of the accused. Since theconviction was based on circumstantial evidence, no death sentence should have been awarded and in anyevent 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. Thegrandmother 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 Stateof 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 accusedand the deceased were seen last alive and when the deceased is found dead is so small that possibility of anyperson other than the accused being the author of the crime becomes impossible. It would be difficult in somecases to positively establish that the deceased was last seen with the accused when there is a long gap and possibilityof other persons coming in between exists. In the absence of any other positive evidence toconclude that the accusedand the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. Inthis case there is positive evidence that the deceased and the accused were seen together by witnesses PWs. 3and 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 whenthe accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of anyperson other than the accused being the author of the crime becomes impossible. Even in such a case the courtsshould 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 ofTamil Nadu ( 2008(5) Supreme 577).

Before analyzing factual aspects it may be stated that for a crime to be proved it is not necessarythat 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 offencecan be proved by circumstantial evidence also. The principal fact or factum probandum may be provedindirectly by means of certain inferences drawn from factum probans, that is, the evidentiaryfacts. To put it differently circumstantial evidence is not direct to the point in issue but consists of evidence ofvarious other facts which are so closely associated with the fact in issue that taken together they form a chain ofcircumstances 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 circumstantialevidence, the inference of guilt can be justified only when all the incriminating facts andcircumstances are found to be incompatible with the innocence of the accused or the guilt of anyother person. (See Hukam Singh v. State of Rajasthan AIR (1977 SC 1063); Eradu and Ors. v. State ofHyderabad (AIR 1956 SC 316); Earabhadrappa v. State of Karnataka (AIR 1983 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 KumarChatterjee v. State of M.P. (AIR 1989 SC 1890). The circumstances from which an inference as to the guilt of theaccused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with theprincipal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab (AIR 1954SC 621), it was laid down that where the case depends upon the conclusion drawn from circumstances thecumulative effect of the circumstances must be such as to negative the innocence of the accused and bring theoffences 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 ofA.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 theconclusion 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 andtotally inconsistent with his innocence....".

In Padala Veera Reddy v. State of A.P. and Ors. (AIR 1990 SC 79), it was laid down thatwhen 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 firmlyestablished;

(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of theaccused;

(3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from theconclusion 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 explanationof any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent withthe 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 greatcare must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable oftwo 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 thefollowing rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of anylegal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) theburden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) inall cases,whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the caseadmits; (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 beany 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, (AIR1984 SC 1622). Therein, while dealing with circumstantial evidence, it has been held that onus was on theprosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured byfalse defence or plea. The conditions precedent in the words of this Court, before conviction could be based oncircumstantial evidence, must be fully established. They are:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. Thecircumstances 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 theaccused 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 theconclusion consistent with the innocence of the accused and must show that in all human probability the act musthave 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 lastseen with the deceased on 30.4.91. The appellant either in his Section 313 Cr.P.C. statement or by any otherevidence has not established when and where he and the deceased parted company after being last seen."

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

In Dhananjoy Chatterjee v. State of W.B. (1994 (2) SCC220), this Court has observed thatshockingly large number of criminals go unpunished thereby increasingly, encouraging the criminals and in theultimate making justice suffer by weakening the system's creditability. The imposition of appropriate punishment isthe manner in which the Court responds to the society's cry for justice against the criminal. Justice demands thatCourts should impose punishment befitting the crime so that the Courts reflect public abhorrence of thecrime. The Court must not only keep in view the rights of the criminal but also the rights of the victim of thecrime 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 inthe said case that it is the nature and gravity of the crime but not the criminal, which are germane for considerationof appropriate punishment in a criminal trial. The punishment to be awarded for a crime must not be irrelevant but itshould 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].

In Machhi Singh v. State of Punjab [1983 (3) SCC 470] in para 38 the position was summed upas 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 intoconsideration along with the circumstances of the `crime'.

(iii) Life imprisonment is the rule and death sentence is an exception. In other words death sentencemust 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 ofimprisonment 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 themitigating circumstances have to be accorded full weightage and a just balance has to be struck between theaggravating 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 whenthe collective conscience of the community is so shocked, that it will expect the holders of the judicial power centreto inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining deathpenalty, the same can be awarded. It was observed:

The community may entertain such sentiment in the following circumstances:

(1) When the murder is committed in an extremely brutal, grotesque, diabolical, revolting, or dastardlymanner so as to arouse intense and extreme indignation of the community.

(2) When the murder is committed for a motive which evinces total depravity and meanness; e.g.murder by hired assassin for money or reward; or cold-blooded murder for gains of a person vis-`-vis whomthe murderer is in a dominating position or in a position of trust; or murder is committed in the course forbetrayal of the motherland.

(3) When murder of a member of a Scheduled Caste or minority community, etc. is committed not forpersonal reasons but in circumstances which arouse social wrath; or in cases of `bride burning' or `dowrydeaths' or when murder is committed in order to remarry for the sake of extracting dowry once again or tomarry another woman on account of infatuation.

(4) When the crime is enormous in proportion. For instance when multiple murders, say of all or almost allthe members of a family or a large number of persons of a particular caste, community, or locality, arecommitted.

(5) When the victim of murder is an innocent child, or a helpless woman or old or infirm person or aperson vis-`-vis whom the murderer is in a dominating position, or a public figure generally loved andrespected by the community."

The plea that in a case of circumstantial evidence death should not be awarded is without any logic. If thecircumstantial evidence is found to be of unimpeachable character in establishing the guilt of the accused,that forms the foundation for conviction. That has nothing to do with the question of sentence as has beenobserved by this Court in various cases while awarding death sentence. The mitigating circumstances andthe aggravating circumstances have to be balanced. In the balance sheet of such circumstances, the fact thatthe case rests on circumstantial evidence has no role to play. In fact in most of the cases where death sentenceare awarded for rape and murder and the like, there is practically no scope for having an eye witness. Theyare not committed in the public view. But very nature of things in such cases, the available evidence is

circumstantial evidence. If the said evidence has been found to be credible, cogent and trustworthy for the purpose ofrecording conviction, to treat that evidence as a mitigating circumstance, would amount to consideration of anirrelevant aspect. The plea of learned Amicus Curiae that the conviction is based on circumstantial evidence and,therefore, the death sentence should not be awarded is clearly unsustainable.

The case at hand falls in the rarest of rare category. The circumstances highlighted above, establish thedepraved acts of the accused, and they call for only one sentence, that is death sentence.

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