# Ankit Bharti v. State of U.P. & Anr

- **Citation:** High Court of Judicature at Allahabad #46314
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-03-02
- **Bench:** Govind Mathur, C.J. Ramesh Sinha, Mrs. Sunita Agarwal, Yashwant Varma, Rahul Chaturvedi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ankit-bharti-v-state-of-u-p-anr-46314
- **Pages:** 13

## Headnote

Law-Code
of
Criminal
Procedure,1973-section
438-applicationconcurrent jurisdiction of anticipatory
bail-special
circumstances
must
be
convincingly established and not on vague
allegations before the jurisdiction of the
High Court is invoked-a strong foundation
in respect of both the apprehension of
arrest as well as in justification of the
concurrent jurisdiction of the High Court
being
invoked
directly-it
is
for
the
concerned judge to assess whether special
circumstances do exist warranting the
jurisdiction of the High Court being
1282 INDIAN LAW REPORTS ALLAHABAD SERIES
invoked
directly-Hence
reference
is
answered.(Para 3 to 22)

Whenever an application for relief u/s 438 is
moved, discretion has to be always exercised
judiciously, and with caution, having regard to
the facts of every case.while the power of
granting anticipatory bail is not ordinary, at the
same time, its use is not confined to exceptional
cases.application should be based on concrete
facts and not vague or general allegations
relatable to one or other specific offence.(Para
8, 9, 10)

The reference is answered. (E-6)

List of Cases Cited:-

## Text

_Characters 0–39,905 of 44,264. This is a partial read: ask again with offset=39905 for what follows._

3-5 All. Ankit Bharti Vs. State of U.P. & Anr.
1281
for the time being in force. The 2015 Act
represents an all encompassing and self
contained code laying in place a separate and
distinct procedure liable to be followed in case
of arrest or detention of a child in conflict with
law. It places significant and special safeguards
in respect of the apprehension of a child in
conflict with law. It is in that sense not an
incarceration or detention by the police as
normally understood. The extension of the
provisions of Section 438 of the Criminal
Procedure Code would clearly interfere with
and disrupt the statutory process that is
otherwise
liable
to
be
followed
upon
apprehension of a child. It must consequently
be held that once a first information is registered
or information otherwise recorded by the SJPU
or the CWPO with regard to a child in conflict
with law, the provisions of Section 438 stand
impliedly excluded. In such a situation it is the
provisions made in Sections 10 and 12 of the
2015 Act which alone must be permitted to
operate and recognised in law to be applicable.

41. The only limited window in which
Section 438 can be held to apply is the pre
recordal of information stage with regard to an
offense allegedly committed by a child. As
noticed above, Section 10 comes into play only
once information in respect of an offense comes
to be recorded. Prior to that a child
apprehending detention or deprivation of liberty
is accorded no protection or avenue of redress
under the 2015 Act. It is within this narrow
confine alone that his right to invoke the
jurisdiction of the Court of Sessions or the High
Court must be recognised to exist and
preserved.

CONCLUSION

42. In the present case, a first information
report has already come to be lodged against the
two applicants. The learned AGA has rightly
submitted that the police cannot apprehend the
applicants and that it is the procedure prescribed
by Sections 10 and 12 that will have to be
necessarily followed. In that view of the matter
the Court is of the opinion that the apprehension
of arrest is clearly misplaced.

43. Taking on board the statement of the
learned AGA, the instant application is
dismissed as not maintainable.
----------
(2020)03-05ILR A1281
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.03.2020

BEFORE

THE HON'BLE GOVIND MATHUR, C.J.
THE HON'BLE RAMESH SINHA, J.
THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE YASHWANT VARMA, J.
THE HON'BLE RAHUL CHATURVEDI, J.

Crl. Misc. Anticipatory Bail Application No. 1094
of 2020 and other connected cases

Ankit Bharti ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Gaurav Kacker, Sri Bharat Singh

Counsel for the Opposite Parties:
A.G.A.

A.
Criminal
Law-Code
of
Criminal
Procedure,1973-section
438-applicationconcurrent jurisdiction of anticipatory
bail-special
circumstances
must
be
convincingly established and not on vague
allegations before the jurisdiction of the
High Court is invoked-a strong foundation
in respect of both the apprehension of
arrest as well as in justification of the
concurrent jurisdiction of the High Court
being
invoked
directly-it
is
for
the
concerned judge to assess whether special
circumstances do exist warranting the
jurisdiction of the High Court being
1282 INDIAN LAW REPORTS ALLAHABAD SERIES
invoked
directly-Hence
reference
is
answered.(Para 3 to 22)

Whenever an application for relief u/s 438 is
moved, discretion has to be always exercised
judiciously, and with caution, having regard to
the facts of every case.while the power of
granting anticipatory bail is not ordinary, at the
same time, its use is not confined to exceptional
cases.application should be based on concrete
facts and not vague or general allegations
relatable to one or other specific offence.(Para
8, 9, 10)

The reference is answered. (E-6)

List of Cases Cited:-

1. Onkar Nath Agarwal & ors. Vs. St. (1976) All
LJ 223

2. Vinod Kumar Vs. St. Of U.P. & anr. (2019) 12
ADJ 495

3. Ankit Bharti Vs. St. Of U.P. & anr. CR. Misc.
Bail application no. 1094 of 2020

4. Gurbaksh Singh Sibbia Vs. St. Of Punj. (1980)
2 SCC 565

5. Sushila Aggaarwal Vs. St.a(NCT of Delhi) &
Ors.(2020) SCC Online SC 98

6. Mohan Lal & Ors. Etc. Vs. Prem Chand & ors.
Etc.,AIR (1980) HP 36

7. Mubarik & Anr. Vs. St. Of U.K. & Ors.,CMWP
No. 2059 of 2018

8. Diptendu Nayek Vs. St. Of W.B. (1998) 2 Cal
LJ 447

9. Suresh Jaiswal Vs. St. Of U.P. (2020) 1 ADJ
52 FB

10. Rashmi Rekha Thatoi Vs. St. Of Orissa
(2012) 5 SCC 690

(Delivered by Hon'ble Govind Mathur, C.J.
 Hon'ble Ramesh Sinha, J.
 Hon'ble Mrs. Sunita Agarwal, J.
Hon'ble Yashwant Varma, J.
Hon'ble Rahul Chaturvedi, J.)

1. We have heard Sri Gaurav Kacker,
learned Advocate and other counsels
appearing for the various applicants and the
learned AGA.

2. A learned Judge of the Court while
considering a petition for anticipatory bail
has deemed it appropriate to refer the
following questions for the consideration of
this Full Bench: -

"(i) Whether the Court would
have
no
jurisdiction
to
reject
the
anticipatory bail after considering the
grounds of compelling reasons mentioned
in the affidavit being found not appealing,
which would amount nothing but to
approach this Court directly;

(ii) Whether amongst the grounds
which have been enumerated in the
judgment in the case of Vinod Kumar
(supra), the ground at Serial (A) requires
any reconsideration so as to preclude the
co-accused approaching this Court directly
in case the other co-accused's regular
bail/anticipatory bail is rejected by the
Court of Sessions and whether he be also
subjected to filing such an affidavit,
showing therein the circumstances in which
he had to feel compelled to approach this
Court directly;

(iii)
Whether
amongst
the
grounds which have been enumerated in
the judgment in the case of Vinod Kumar
(supra), the ground at Serial (B) requires
any reconsideration as to whether an
accused, who is not residing within the
jurisdiction
of
the
Sessions
Court
concerned, faces a threat of arrest, should
be allowed to approach the High Court
directly, to move an anticipatory bail
application by the logic given above in Para
6 of this judgment; and
3-5 All. Ankit Bharti Vs. State of U.P. & Anr.
1283

(iv) Whether such anticipatory
bail applications which do not contain any
compelling reason to approach this Court
directly, should be entertained.

3. While passing the referral order,
the learned Judge also suggested the
formation of a Bench larger than the one
which had rendered judgment in Onkar
Nath Agarwal and others Vs. State1, a
decision rendered by three learned Judges
of this Court. The Reference came to be
made in the backdrop of the decision
rendered in Vinod Kumar Vs. State of
U.P. and another2 in which a learned
Judge framed the following questions for
consideration:-

"A. The nature of the concurrent
jurisdiction conferred by Section 438
Cr.P.C.

B. Whether parties should be
commanded to necessarily approach the
Sessions Court first before invoking the
jurisdiction of this Court under Section 438
Cr.PC

C. In what circumstances can the
High Court be approached directly under
Section 438 Cr.P.C.

D.
Exceptional
or
Special
circumstances.

E.
The
perceived
conflict
between the decisions rendered in Harendra
Singh @ Harendra Bahadur Vs. The State
of U.P.1 and Neeraj Yadav And Another
Vs. State of U.P.2

F. Impact of the Explanation to
Section 438(2) Cr.P.C.

G.
The
period
for
which
anticipatory bail should operate."

4. Upon due consideration of the
decisions rendered on the subject by the
Court as well as those rendered by different
High Courts of the country, the following
conclusions came to be recorded:

"A. Section 438 Cr.P.C. on its
plain terms does not mandate or require a
party to first approach the Sessions Court
before applying to the High Court for grant
of anticipatory bail. The provision as it
stands does not require an individual first
being relegated to the Court of Sessions
before being granted the right of audience
before this Court.

B. Notwithstanding concurrent
jurisdiction being conferred on the High
Court and the Court of Session for grant of
anticipatory bail under Section 438 Cr.P.C.,
strong, cogent, compelling and special
circumstances must necessarily be found to
exist in justification of the High Court
being approached first without the avenue
as available before the Court of Sessions
being exhausted. Whether those factors are
established or found to exist in the facts of
a particular case must necessarily be left for
the Court to consider in each individual
matter.

C. The words "exceptional" or
"extraordinary" are understood to mean
atypical, rare, out of the ordinary, unusual
or uncommon. If the jurisdiction of the
Court as conferred by Section 438 Cr.P.C.
be circumscribed or be recognised to be
moved only in exceptional situations it
would again amount to fettering and
constricting
the
discretion
otherwise
conferred by Section 438 Cr.P.C. Such a
construction would be in clear conflict of
the statutory mandate. The ratio of
Harendra Singh must be recognised to be
the
requirement
of
establishing
the
existence
of
special,
weighty
and
compelling reasons and circumstances
justifying the invocation of the jurisdiction
of this Court even though a wholesome
1284 INDIAN LAW REPORTS ALLAHABAD SERIES
avenue of redress was available before the
Court of Sessions.

D.
What
would
constitute
"special circumstances" in light of the
nature of the power conferred must be left
to be gathered by the Judge on a due
evaluation of the facts and circumstances of
a particular case. It would be imprudent to
exhaustively chronicle what would be
special circumstances. It is impossible to
either identify or compendiously postulate
what
would
constitute
special
circumstances.
Sibbia
spoke
of
the
"imperfect awareness of the needs of new
situations". It is this constraint which
necessitates the Court leaving it to the
wisdom of the Judge and the discretion
vested in him by statute.

E. While the Explanation may
have created an avenue for an aggrieved
person to challenge an order passed under
Section 438(1), it cannot be construed or
viewed as barring the jurisdiction of the
High
Court
from
entertaining
an
application for grant of anticipatory bail
notwithstanding that prayer having been
refused by the Court of Sessions.

F. Till such time as the question
with respect to the period for which an
order under Section 438 Cr.P.C. should
operate is answered by the Larger Bench,
the Court granting anticipatory bail would
have to specify that it would continue only
till the Court summons the accused based
on the report that may be submitted under
Section 173(2) Cr.P.C. whereafter it would
be open for the applicant on appearance to
seek regular bail in accordance with the
provisions made in Section 439 Cr.P.C."

5. In Ankit Bharti Vs. State of U.P.
and another3 the learned Judge while
referring the matter to this Full Bench
expressed certain reservations with respect
to the answers rendered in Vinod Kumar
while dealing with the question of what
would constitute "special circumstances"
enabling an applicant to approach the High
Court directly by way of a petition under
Section 438 of the Criminal Procedure
Code. The doubt itself was expressed in
respect of contingencies ''A' and ''B' as set
forth in Vinod Kumar while answering
Question 'D'. In Vinod Kumar, the learned
Judge while dealing with Question 'D' held
thus: -

"Harendra Singh leaves a window
open with the learned Judge observing that
requiring
the
party
to
invoke
the
jurisdiction conferred on a Court of
Sessions must be recognized as the normal
course and the High Court entitled to be
moved only in extraordinary circumstances
and special reasons. The learned Judge
further went on to observe in the ultimate
conclusion drawn that for "extraneous"
(sic) or special reasons the High Court
could also exercise the powers conferred by
Section 438 Cr.P.C. notwithstanding the
Court of Sessions having not been moved.
What appears upon a holistic reading of
that decision is the intent of the learned
Judge to convey the duty of the applicant
approaching the High Court to establish the
existence
of
exceptional
and
special
circumstances.
The
only
clarification
which, therefore, would merit being entered
is with regard to the requirement of proving
the
existence
of
extraordinary
or
exceptional circumstances.
The words
"exceptional"
or
"extraordinary"
are
understood to mean atypical, rare, out of
the ordinary, unusual or uncommon. If the
jurisdiction of the Court as conferred by
Section 438 Cr.P.C. be circumscribed or be
recognised to be moved only in exceptional
situations it would again amount to
fettering and constricting the discretion
otherwise conferred by Section 438 Cr.P.C.
3-5 All. Ankit Bharti Vs. State of U.P. & Anr.
1285
Such a construction would perhaps run the
risk of being again viewed as being in
conflict of the statutory mandate and the
discretion conferred. In the considered
view of the Court what the learned Judge
did seek to convey and hold in Harendra
Singh was the requirement of establishing
the
existence
of
special,
weighty,
compelling reasons and circumstances
justifying the invocation of the jurisdiction
of this Court even though a wholesome
avenue of redress was available before the
Court of Sessions.

Regard must be had to the fact
that the Constitution Bench in Sibbia had
an occasion to deal with the correctness of
the restrictions as formulated by the Full
Bench of the Punjab and Haryana High
Court on the exercise of power under
Section 438 Cr.P.C. Dealing with that
aspect the Constitution Bench clearly held
that the exercise of discretion as statutorily
conferred
cannot
be
confined
in
a
straitjacket. This simply since it would be
impossible to either prophesize or foresee
the
myriad
situations
in
which
the
jurisdiction of the Court may be invoked. It
was for the aforesaid reasons that the
Constitution Bench held that this aspect
must be left to the judgment and wisdom of
the Court to evaluate and consider whether
special
circumstances
exist
or
are
evidenced by the facts of a particular case.
The Court deems it apposite to extract the
following paragraphs from the decision
rendered by the Constitution Bench: -

"13. This is not to say that
anticipatory bail, if granted, must be
granted without the imposition of any
conditions. That will be plainly contrary to
the very terms of Section 438. Though subsection (1) of that section says that the
Court "may, if it thinks fit" issue the
necessary direction for bail, sub-section (2)
confers on the Court thepower to include
such conditions in the direction as it may
think fit in the light of the facts of the
particular case, including the conditions
mentioned in clauses (i) to (iv) of that subsection. The controversy therefore is not
whether the Court has the power to impose
conditions while granting anticipatory bail.
It clearly and expressly has that power. The
true question is whether by a process of
construction, the amplitude of judicial
discretion which is given to the High Court
and the Court of Session, to impose such
conditions as they may think fit while
granting anticipatory bail, should be cut
down by reading into the statute condition
which are not to be found therein, like
those evolved by the High Court or
canvassed by the learned Additional
Solicitor General. Our answer, clearly and
emphatically, is in the negative. The High
Court and the Court of Session to whom
the application for anticipatory bail is made
ought to be left free in the exercise of their
judicial discretion to grant bail if they
consider it fit so to do on the particular
facts and circumstances of the case and on
such conditions as the case may warrant.
Similarly, they must be left free to refuse
bail if the circumstances of the case so
warrant, on considerations similar to those
mentioned in Section 437 or which are
generally considered to be relevant under
Section 439 of the Code.

14. 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
1286 INDIAN LAW REPORTS ALLAHABAD SERIES
anticipatory bail because, firstly, these are
higher courts manned by experienced
persons, secondly, their orders are not final
but are open to appellate or revisional
scrutiny and above all because, discretion
has always to be exercised by courts
judicially and not according to whim,
caprice or fancy. On the other hand, there is
a risk in foreclosing categories of cases in
which anticipatory bail may be allowed
because
life
throws
up
unforeseen
possibilities and offers new challenges.
Judicial discretion has to be free enough to
be able to take these possibilities in its
stride and to meet these challenges. While
dealing with the necessity for preserving
judicial discretion unhampered by rules of
general application, Earl Loreburn, L. C.
said in Hyman v. Rose :

"I desire in the first instance to
point out that the discretion given by the
section is very wide........... Now it seems to
me that when the Act is so express to
provide a wide discretion,... it is not
advisable to lay down any rigid rules for
guiding that discretion. I do not doubt that
the rules enunciated by the Master of the
Rolls in the present case are useful maxims
in general, and that in general they reflect
the point of view from which judges would
regard an application for relief. But I think
it ought to be distinctly understood that
there may be cases in which any or all of
them may be disregarded. If it were
otherwise, the free discretion given by the
statute would be fettered by limitations
which have nowhere been enacted. It is one
thing to decide what is the true meaning of
the language contained in an Act of
Parliament. It is quite a different thing to
place conditions upon a free discretion
entrusted by statute to the court where the
conditions are not based upon statutory
enactment at all. It is not safe, I think, to
say that the court must and will always
insist upon certain things when the Act
does not require them, and the facts of
some unforeseen case may make the court
wish it had kept a free hand."

15. 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,
we cut 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 we 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
guide-lines 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 of the courts
generally is to preserve their discretion
without meaning to abuse it. It will be
strange if we exhibit concern to stultify the
discretion conferred upon the courts by
law.

...........

26. We find a great deal of
substance in Mr. Tarkunde's submission
that since denial of bail amounts to
3-5 All. Ankit Bharti Vs. State of U.P. & Anr.
1287
deprivation of personal liberty, the Court
should lean against the imposition of
unnecessary restrictions on the scope of
Section 438, especially when no such
restrictions have been imposed by the
legislature in the terms of that section.
Section 438 is a procedural provision
which is concerned with the personal
liberty of the individual, who is entitled to
the benefit of the presumption of innocence
since he is not, on the date of his
application for anticipatory bail, convicted
of the offence in respect of which he seeks
bail.
An
overgenerous
infusion
of
constraints and conditions which are not to
be found in Section 438 can make its
provisions constitutionally vulnerable since
the right to personal freedom cannot be
made to depend on compliance with
unreasonable restrictions. The beneficient
provision contained in Section 438 must be
saved, not jettisoned. No doubt can linger
after the decision in Maneka Gandhi that in
order to meet the challenge of Article 21 of
the Constitution, the procedure established
by law for depriving a person of his liberty
must be fair, just and reasonable. Section
438, in the form in which it is conceived by
the legislature, is open to no exception on
the ground that it prescribes a procedure
which is unjust or unfair. We ought, at all
costs, to avoid throwing it open to a
Constitutional challenge by reading words
in it which are not be found therein"

On an overall consideration of the
above the Court is of the considered view
that Harendra Singh when interpreted and
understood in the manner indicated above,
rightly balances the issues that arise. While
it was urged that the aforesaid decision
would be per incuriam the views expressed
by our Full Bench in Onkar Nath
Agarwal
and
the
decision
of
the
Constitution Bench in Sibbia, this Court
finds no merit in that submission since as
noted above, even Onkar Nath Agarwal
had envisaged situations where the High
Court may relegate parties to the Court of
Sessions
and
refuse
to
invoke
its
jurisdiction. Insofar as Sibbia is concerned,
it becomes relevant to bear in mind that the
Constitution Bench was not dealing with
the issue that arises for our consideration
directly. The observations with regard to
the exercise of discretion as appearing
therein were entered in the context of the
principles formulated by the Full Bench of
the Punjab and Haryana High Court
relating to the exercise of power under
Section 438 itself. The issue of a self
imposed restraint exercised by the High
Court in light of the contemporaneous
jurisdiction conferred on the Court of
Session was not a question directly in issue.
The argument of per incuriam is thus liable
to be and is consequently rejected.

The
legal
position
which
consequently
emerges
is
that
notwithstanding the concurrent jurisdiction
being conferred on the High Court and the
Court of Session for grant of anticipatory
bail under Section 438 Cr.P.C., strong,
cogent, compelling reasons and special
circumstances must necessarily be found to
exist in justification of the High Court
being approached first and without the
avenue as available before the Court of
Sessions being exhausted. Whether those
factors are established or found to exist in
the facts of a particular case must
necessarily be left for the Court to consider
in each case.

What would constitute "special
circumstances" in light of the nature of the
power conferred, must also be left to be
gathered by the Judge on a due evaluation
of the facts and circumstances of a
particular case. It would perhaps be
imprudent to exhaustively chronicle what
would be special circumstances. As noticed
1288 INDIAN LAW REPORTS ALLAHABAD SERIES
above, it would be impossible to either
identify or compendiously propound what
would constitute special circumstances.
Sibbia spoke of the "imperfect awareness
of the needs of new situations". It is this
constraint which necessitates the Court
leaving it to the wisdom of the Judge and
the discretion vested in him by statute.
Without committing the folly of attempting
to exhaustively enunciate what would
constitute special circumstances or being
understood to have done so, the High Court
would be justified in entertaining a petition
directly in the following, amongst other,
circumstances:-

(A)
Where
bail,
regular
or
anticipatory, of a coaccused has already
been rejected by the Court of Sessions;

(B)
Where
an
accused
not
residing within the jurisdiction of the
concerned Sessions Court faces a threat of
arrest;

(C) Where circumstances warrant
immediate protection and where relegation
to the Sessions Court would not subserve
justice;

(D) Where time or situational
constraints warrant immediate intervention.

These and other relevant factors
would clearly constitute special circumstances
entitling a party to directly approach the High
Court for grant of anticipatory bail."

6. As is manifest and evident from
the above extract, the learned Judge
chose, and in our opinion correctly, to
observe that it would be imprudent to
exhaustively
chronicle
what
would
constitute
special
circumstances.
A
further caveat was placed with the
learned
Judge
observing
that
the
aforesaid exposition on the question
should not be viewed as an attempt to
exhaustively
enunciate
what
would
constitute special circumstances. The
learned Judge thus left it entirely at the
discretion of the Judge considering a
petition
for
anticipatory
bail
to
ascertain
whether
such
special
circumstances did in fact exist entitling
the applicant to approach the High
Court directly. In our considered view
the answer as framed to Question 'D' in
Vinod Kumar clearly needs no further
explanation or elaboration.

7.

There
can
never
be
an
encyclopedic exposition as to what
would constitute special circumstances.
The grounds on which a petition for
anticipatory bail may be instituted
before the High Court can neither be
placed in a straightjacket nor can be
comprehensively enumerated. Decades
ago
the
Constitution
Bench
in
Gurbaksh Singh Sibbia Vs. The State
of Punjab4 had cautioned against any
attempt to compendiously enumerate
the myriad situations in which a petition
for anticipatory bail may come to be
moved. It had in that backdrop set aside
the directions framed by the Full Bench
of the Punjab and Haryana High Court
seeking to guide the power conferred by
Section 438 of the Criminal Procedure
Code only in exceptional cases. The
Constitution Bench held that where the
statutory provision itself did not employ
or place any words of limitation on the
discretion conferred, it would not only
be incorrect but also inappropriate to
read into that provision fetters which
the Legislature had chosen not to place.
It also denounced attempts to subject
the discretion statutorily conferred to
controls
by
way
of
judicial
interpretation. In fact Sibbia held that
the Legislature had wisely left it to the
discretion of the Court. The note of
prudence was entered bearing in the
3-5 All. Ankit Bharti Vs. State of U.P. & Anr.
1289
mind the impossibility of predicting the
infinite and imponderable situations in
which petitions for anticipatory bail
may come to be presented.

8. More recently, a Constitution
Bench in Sushila Aggarwal Vs. State
[NCT of Delhi] and others 5 was called
upon to consider whether protection
accorded under Section 438 should be
limited for a fixed period and whether the
life of such an order should end at the time
when the accused is summoned by the
Court. While dealing with those questions,
the Constitution Bench reiterated the
conclusions entered in Sibbia, which
clearly has come to be regarded as the
locus classicus on the subject. Delivering
his
concurring
opinion
in
Sushila
Aggrawal, Ravindra Bhat J. observed thus:
-

84. The accused is not obliged to
make out a special case for grant of anticipatory
bail; reading an otherwise wide power would
fetter the court's discretion. Whenever an
application (for relief under Section 438) is
moved, discretion has to be always exercised
judiciously, and with caution, having regard to
the facts of every case. (Para 21,Sibbia).

85. While the power of granting
anticipatory bail is not ordinary, at the same
time, its use is not confined to exceptional cases
(Para 22, Sibbia).

86. It is not justified to require courts
to only grant anticipatory bail in special cases
made out by accused, since the power is
extraordinary, or that several considerations -
spelt out in Section 437-or other considerations,
are to be kept in mind. (Para 24-25, Sibbia).

87. Overgenerous introduction (or
reading into) of constraints on the power to
grant anticipatory bail would render it
Constitutionally
vulnerable.
Since
fair
procedure is part of Article 21, the court should
not throw the provision (i.e. Section 438) open
to challenge "by reading words in it which are
not to be found therein." (Para 26).

9. Dealing then with the nature of the
foundation that must be laid in an application
for anticipatory bail, the learned Judge held: -

"133. Having regard to the above
discussion, it is clarified that the court should
keep the following points as guiding principles,
in dealing with applications under Section 438,
Cr. PC:

(a) As held in Sibbia, when a person
apprehends arrest and approaches a court for
anticipatory bail, his apprehension (of arrest),
has to be based on concrete facts (and not vague
or general allegations) relatable a specific
offence or particular of offences. Applications
for anticipatory bail should contain clear and
essential facts relating to the offence, and why
the applicant reasonably apprehends his or her
arrest, as well as his version of the facts. These
are important for the court which considering
the application, to extent and reasonableness of
the threat or apprehension, its gravity or
seriousness and the appropriateness of any
condition that may have to be imposed. It is not
a necessary condition that an application should
be moved only after an FIR is filed; it can be
moved earlier, so long as the facts are clear and
there is reasonable basis for apprehending
arrest."

10.

While
framing
"FINAL
CONCLUSIONS" and on the aspect noted
above, the Constitution Bench observed: -

"140. This court, in the light of
the above discussion in the two judgments,
and in the light of the answers to the
reference,
hereby
clarifies
that
the
following need to be kept in mind by
courts, dealing with applications under
Section 438, Cr. PC:
1290 INDIAN LAW REPORTS ALLAHABAD SERIES

(1) Consistent with the judgment
in Shri Gurbaksh Singh Sibbia v. State of
Punjab, when a person complains of
apprehension of arrest and approaches for
order, the application should be based on
concrete facts (and not vague or general
allegations) relatable to one or other
specific offence. The application seeking
anticipatory bail should contain bare
essential facts relating to the offence, and
why the applicant reasonably apprehends
arrest, as well as his side of the story. These
are essential for the court which should
consider his application, to evaluate the
threat or apprehension, its gravity or
seriousness and the appropriateness of any
condition that may have to be imposed. It is
not essential that an application should be
moved only after an FIR is filed; it can be
moved earlier, so long as the facts are clear
and
there
is
reasonable
basis
for
apprehending arrest."

11. We have noted these conclusions
recorded by the Constitution Bench in
Sushila Aggarwal for they shall be of
some import for reasons, which follow.

12. Reverting however to the
principal issue, we are of the considered
view that Vinod Kumar rightly desisted
from either postulating or particularizing
the various circumstances in which an
individual may be recognized as entitled to
move the High Court directly and left it to
the judicious discretion of the Court to be
exercised bearing in mind the facts and
exigencies of each particular case. The
words of caution and circumspection as
entered in Sibbia and Sushila Agarwal in
the context of the power conferred by
Section 438 apply with equal force while
understanding the nature and extent of the
concurrent jurisdiction of the High Court.
Regard must be had to the fact that it is
well nigh impossible to predict upon
imponderables such as the immanency of
the threat, issues of access to justice and
redress and the exigencies of a particular
situation. It would not only be unwise but
injudicious to frame what was dubbed in
Sibbia to be "formulae of universal
application". The Court would be well
advised to leave it to a judicious exercise of
discretion in the facts of each cause brought
before it.

13. It may also be noted that
undisputedly the jurisdiction as conferred
on the High Court and the Court of
Sessions by Section 438 is concurrent. As
was held by the earlier Full Bench of the
Court in Onkar Nath Agrawal that
discretion and the power of the High Court
to entertain an application directly is one
which is liable to be exercised according to
the facts and circumstances of the each
case. The Full Bench there had observed in
paragraph 8 as follows:-

"8.
It
may,
however,
be
mentioned that inasmuch as Section 438 of
the Code of Criminal Procedure, 1973
gives a discretionary power to grant bail,
this discretion is to be exercised according
to the facts and circumstances of each case.
There may be cases in which it may be
considered by the High Court to be proper
to entertain an application without the
applicant having moved the Court of
Sessions initially. Similarly there may be
cases in which the Court may feel justified
in asking the applicant to move the
Sessions Court or to refer the matter to that
Court. In any case all depends upon the
discretion of the Judge hearing the case."

14. As a minor digression from the
main issue, it becomes relevant to state that
significantly the learned Judge while
3-5 All. Ankit Bharti Vs. State of U.P. & Anr.
1291
making
the
present
Reference
and
requesting the Chief Justice to constitute a
Bench larger than that which had decided
Onkar Nath Agrawal does not rest this
recommendation
on
any
decision
or
precedent to the contrary. In fact as was
noted in Vinod Kumar the view so
expressed by the Full Bench in Onkar
Nath Agrawal has not only held the field
for decades but has also been followed by
the Full Bench of the Himachal Pradesh in
Mohan Lal and others etc. Vs. Prem
Chand and others etc6, by the High Court
of Uttarakhand in Mubarik & another v.
State of Uttarakhand & others7, as well
as the Full Bench of the Calcutta High
Court in Diptendu Nayek Vs. State of
West Bengal8. Viewed in that light we are
of the considered view that there was
neither a conflict between precedents that
required resolution nor was there any
question which merited an authoritative
exposition by a Bench larger than which
had decided Onkar Nath Agarwal. It
would be worthwhile to recollect the
following pertinent observations made by a
Full Bench of the Court in Suresh Jaiswal
Vs. State of U.P.9 and another in this
context: -

"56.In the instant matter, as
expressed above, we could not find any
conflict between two decisions which
warranted a reference before the Larger
Bench.

57.
The
questions,
in
the
reference order, framed by the Division
Bench, assuming conflict of opinion in the
election matters, with due respect, are
sweeping. On a plain reading of the order
of reference, it appears that their Lordships
have referred the questions to the Larger
Bench with a view to create a precedent
assuming that those questions of law of
importance may arise in election matters
and an authoritative pronouncement of a
Larger Bench is needed on the subject

58. The pronouncement by a Full
Bench, with due regard to the learned
Judges
referring
the
matter,
on
a
hypothetical conflict, would not be a proper
judicial exercise."

15. The Reference, in that sense, was
clearly not merited. However and since we
have heard parties not only on the question
of maintainability of the Reference but also
on the questions formulated for our
consideration, we deem it apposite to
render our opinion in order to lend a
quietus to the doubts which appear to exist.

16. We, therefore, hold that the
conclusions as recorded in Vinod Kumar
on the meaning to be ascribed to
exceptional or special circumstances needs
no reconsideration. It must, as was noted
there, be left to the concerned Judge to
exercise the discretion as vested in him by
the statute dependent upon the facts
obtaining in a particular case.

17. The second aspect which needs to
be emphasized and reiterated is that Vinod
Kumar itself while articulating some of the
situations in which the High Court may be
moved
directly
had
underlined
the
necessity
of
those
assertions
being
evidenced and substantiated in fact. A bald
assertion without requisite particulars was
neither suggested as being sufficient to
petition the High Court nor does such an
assumption flow from that decision. Vinod
Kumar has explained that an application of
grant of anticipatory bail cannot rest on
vague and unsubstantiated allegations or
lack of material particulars in support of the
threat of imminent arrest. The learned
Judge has while dealing with this aspect
also referred to the pertinent observations
1292 INDIAN LAW REPORTS ALLAHABAD SERIES
as made by the Supreme Court in Rashmi
Rekha Thatoi Vs. State of Orissa10.
Consequently it must be held that some of
the circumstances which have been noted
by the learned Judge in Vinod Kumar by
way of an exemplar of what may constitute
special circumstances is not to be read or
understood as empty incantations but must
necessarily be supported and established
from the material on record. The petition
must rest on a strong foundation in support
of the imminent threat of arrest as alleged.
This aspect has also been duly emphasised
by the Constitution Bench in Sushila
Agarwal as is evident from the parts
extracted above with it being observed that
the application must be based "...on
concrete facts (and not vague or general
allegations)..."

18. Viewed in that backdrop it is
manifest that it was open for the learned
Judge to assess the facts of each case to
form
an
opinion
whether
special
circumstances existed or not entitling the
applicant there to approach the High Court
directly. Considered from the aforesaid
perspective, it is manifest that Question (i)
as framed by the learned Judge is really
unwarranted. If the learned Judge was of
the opinion that the averments made in
support
of
the
existence
of
special
circumstances were "not appealing" [as he
chooses to describe it] or unconvincing,
nothing hindered the Court from holding
so.

19. We would consequently answer
the Reference by holding that the decision
in Vinod Kumar does not merit any
reconsideration or explanation. As rightly
held in that decision, there can be no
exhaustive
or
general
exposition
of
circumstances in which an applicant may
be held entitled to approach the High Court
directly. The Court would clearly err in
attempting to draw a uniform code or
dictum that may guide the exercise of
discretion vested in the Court under Section
438 of the Criminal Procedure Code.