# Ankur Mishra v. State of U.P. & Ors

- **Citation:** (2019) 2 ILRA 1374
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-10-01
- **Case number:** Bail Application No. 8300 of 2019
- **Bench:** Dinesh Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ankur-mishra-v-state-of-u-p-ors-44591
- **Pages:** 22

## Headnote

A. Code of Criminal Procedure, 1973 -
Section 438 - cancellation of anticipatory
bail- power to grant anticipatory bail is
an extra ordinary power and it should be
exercised
sparingly-an
absconder
or
proclaimed
offender
should
not
be
granted
anticipatory
bail-upon
conclusion of investigation and filing of a
charge
sheet,
the
accused
has
to
surrender to the custody of the court and
pray for regular bail and an accused
cannot avoid appearing before the trial
court, on the strength of an anticipatory
bail-Hence, the application is allowed.

B. In the present case, respondent no.3
has been able to avoid arrest since the
date of the F.I.R. and despite having
obtained non-bailable warrants against
him and issuance of the proclamation
under Section 82/83 Cr.P.C. he was not
arrested. The Chief Judicial Magistrate,
Lucknow wrote letters to the highest
police authorities for instructions and
direction to the Investigating Officer to
complete the investigation and effect the
arrest of the accused, but despite the
aforesaid direction, the accused was not
2 All. Ankur Mishra Vs State of U.P. & Ors.
1375
arrested. Further, the Sessions Court has
not considered these aspects regarding
issuance of the non-bailable warrants
and the process under Section 82/83
Cr.P.C.
and
without
taking
into
consideration,
it
has
granted
the
anticipatory bail in the manner which is
not in consonance with the law laid
down by the Supreme Court in several
judgments. (Para 7,9,15,17 to 51)

Bail Application allowed (E-6)

Precedent followed: -

## Text

_Characters 0–39,871 of 73,991. This is a partial read: ask again with offset=39871 for what follows._

1374 INDIAN LAW REPORTS ALLAHABAD SERIES
in judicial review but that cannot be
considered to be a willful violation of the
order.

43. It is stated and observed in
several cases that the contempt is between
the Court and the contemnor and the
aggrieved party cannot insist that the
Court should exercise such jurisdiction.
The discretion is exercised by the Court
for maintenance of Court's dignity and
majesty of law. However, it would not be
entirely correct to state that punishment
under the contempt jurisdiction is granted
to uphold the dignity of the Court.
Contempt jurisdiction is invoked and
punishment is imposed to uphold the
authority
of
Court
to
punish
the
contemnor and to act as a deterrent to
others. This deterrent is motivated in the
interest of the public in order to prevent
future incidents of wilful disregard and
disobedience of the Court orders by a
party. Further, contempt jurisdiction may
even invoke belated compliance, which is
in
public
interest
and
when
such
compliance is made, the contemnor may
seek reduction or discharge of the sentence
in view of subsequent conduct to purge the
contempt by complying with the order.
Contempt jurisdiction is invoked when
breaches are of the highest level of
culpability in the sense that they are wilful.
Further,
persistence
and
continuous
damage and disobedience could in a given
case reflect no remorse from the person
against whom action is taken.

44. In view of the aforesaid
discussions, I do not find any merit in the
present contempt petitions.

The
contempt petitions
are
accordingly dismissed.
----------
(2019)10ILR A 1374

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 01.10.2019

BEFORE

THE HON'BLE DINESH KUMAR SINGH, J.

Bail Application No. 8300 of 2019

Ankur Mishra ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Sri Sushil Kumar Singh

Counsel for the Opposite Parties:
G.A., Jayshanker Shukla, Sri Laltaprasad
Misra

A. Code of Criminal Procedure, 1973 -
Section 438 - cancellation of anticipatory
bail- power to grant anticipatory bail is
an extra ordinary power and it should be
exercised
sparingly-an
absconder
or
proclaimed
offender
should
not
be
granted
anticipatory
bail-upon
conclusion of investigation and filing of a
charge
sheet,
the
accused
has
to
surrender to the custody of the court and
pray for regular bail and an accused
cannot avoid appearing before the trial
court, on the strength of an anticipatory
bail-Hence, the application is allowed.

B. In the present case, respondent no.3
has been able to avoid arrest since the
date of the F.I.R. and despite having
obtained non-bailable warrants against
him and issuance of the proclamation
under Section 82/83 Cr.P.C. he was not
arrested. The Chief Judicial Magistrate,
Lucknow wrote letters to the highest
police authorities for instructions and
direction to the Investigating Officer to
complete the investigation and effect the
arrest of the accused, but despite the
aforesaid direction, the accused was not
2 All. Ankur Mishra Vs State of U.P. & Ors.
1375
arrested. Further, the Sessions Court has
not considered these aspects regarding
issuance of the non-bailable warrants
and the process under Section 82/83
Cr.P.C.
and
without
taking
into
consideration,
it
has
granted
the
anticipatory bail in the manner which is
not in consonance with the law laid
down by the Supreme Court in several
judgments. (Para 7,9,15,17 to 51)

Bail Application allowed (E-6)

Precedent followed: -

1. Sakiri Vasu Vs St. of U.P. & ors. 2008 (2)
SCC 409

2. Hema Mishra Vs St. of U.P. & ors. (2014) 4
SC 453

3. Shri Gurbaksh Singh Sibbia & ors. Vs St. of
Punj. (1980) 2 SCC 565

4. Siddharam Satlingappa Mhetre Vs St. of
Mah. & ors. (2011) 1 SCC 694

5. Bhadresh Bipinbhai Sheth Vs St. of Guj. &
anr. (2016) 1 SCC 152

6. Salauddin Abdulsamad Shaikh Vs St. of
Mah. (1996) 1 SCC 667

7. K.L. Verma Vs St. & anr. (1998) 9 SCC 348

8. Sunita Devi Vs St. of Bihar & anr. (2005) 1
SCC 608

9. Adri Dharan Das Vs St. of W.B. (2005)

10.Reshmi Rekha Thatoi & anr. Vs St. of Ori. &
anr. (2012) 5 SCC 690

11. HDFC Bank Ltd. Vs J.J. Manan & anr.
(2010) 1 SCC 679

12.Lavesh Vs St. (NCT of Delhi) (2012) 8 SCC
730
13. St. of M.P. Vs Pradeep Sharma (2014) 2
SCC 171

14.Jai Prakash Singh Vs St. of Bihar & anr.
(2012) 4 SCC 379

15.
P.
Chidambaram
Vs
Directorate
of
Enforcement in Criminal Appeal No.1340 of
2019

16. St. of Mah. & anr. Vs Mohd. Sajid Husain
Mohd. S. Husain & ors. (2208) 1 SCC 213

17.St. of U.P. through CBI Vs Amarmani
Tripathi (2005) 8 SCC 21

(Delivered by Hon'ble Dinesh Kumar
Singh, J.)

1. This application has been filed for
cancellation of anticipatory bail granted
under Section 438 Cr.P.C. to accusedrespondent no.3 (herein after referred to
as 'respondent no.3') in F.I.R. No.1194 of
2018 registered under Section 304A IPC,
however,
later
on
converted
under
Sections 304 and 201 IPC, Police Station
Chinhat, District Lucknow.

2. Allegations in the F.I.R. are that
the complainant along with his family on
21.12.2018 at around 8.30 PM went to
attend the birthday party of daughter of
one of relatives at Hotel Grand Orion, in
front of the High Court building, Faizabad
Road, Lucknow. The party was organised
on the third floor of the hotel. However,
the railing of the balcony was not
properly fixed and it was just put up by
the side of the wall. The 11 years old son
of the complainant as soon as went near
the railing and touched it, he fell down
along with railing on the ground. The son
of the complainant was taken to the
Lohiya Hospital, Lucknow. However, he
was declared brought dead by the doctors.
1376 INDIAN LAW REPORTS ALLAHABAD SERIES
It was alleged that without ensuring the
safety of the guests coming to the hotel
and in gross negligence, without taking
due care to the lives and safety of the
guests, the party was organised on third
floor by the owner and the manager of the
hotel and they played with the lives of
guests.

3. On the basis of the aforesaid
compliant of the father of the deceased,
F.I.R. No.1194 of 2018 came to be
registered on 22.12.2018 under Section
304A I.P.C. against the owner and the
manager of the Hotel Grand Orion.

4. Despite the F.I.R., the accused
were not arrested and, therefore, the
complainant
wrote
to
the
Senior
Superintendent of Police, Lucknow on
24.12.2018 and gave further information
to be included in the investigation. It was
said that after the incident, neither the
management of the hotel rendered any
assistance for taking the son of the
complainant
to
the
hospital
nor
information was given to the police nor
ambulance was called for. The deceased
was taken to the Lohiya Hospital in a
private car by the complainant and other
relatives, where he was declared brought
dead.

5. It was further alleged that
immediately
after
the
incident,
the
workers of the hotel washed the blood at
the place of the incident and they also
removed the material of railing which fell
down. During this period, two times the
electricity of the hotel was disconnected
by the hotel management for five minutes
each.

6. It was also said that after
receiving the information that son of the
complainant had died, all the employees
and management of the hotel fled away
from the place of the incident of the hotel.
The complainant further alleged that the
hotel was illegally constructed and no
inspection
was
made
after
it
got
constructed. There was no permission to
run
the
hotel
from
the
Lucknow
Development
Authority
and,
the
Municipal Corporation, Lucknow and the
hotel did not have any certificate from
other relevant departments for running the
hotel. The site plan of the hotel was not
approved and the balcony was also not
sanctioned. When the hotel was still under
construction, it had been let out and the
hotel was running without having got all
the
requirements
completed
without
having completion certificate. It was said
that the CCTV footage should be secured
and incomplete hotel should be ordered to
be closed down and, the owner and
manager of the hotel, who were avoiding
arrest, should be arrested.

7. The respondent no.3 instead of
surrendering filed Writ Petition No.16
(MB) of 2019 before this Court seeking
issuance of a writ in the nature of
certiorari for quashing the F.I.R. No.1194
of 2018. It was contended that Section
304 I.P.C., in the facts and circumstances
of the case, was not attracted inasmuch as
the death of the son of the complainant
was result of an accident. This Court
dismissed the writ petition vide order
dated 4.1.2019 with following observation
:-

"We are dealing with a petition
filed for issuance of a writ in the nature of
certiorari
for
quashing
the
First
Information Report. Prima facie it is
evident that offence has been committed.
Whether the offence is under Section 304-
2 All. Ankur Mishra Vs State of U.P. & Ors.
1377
A Indian Penal Code is made out or
Section 304 Indian Penal Code, is a
matter to be considered at this stage by
the
Investigating
Agency
and
at
subsequent stage by the charge court.

We find no ground to quash the
impugned First Information Report at this
inceptive stage of investigation."

8. Despite dismissal of the writ
petition, respondent no.3 and the manager
of the hotel were not apprehended and,
therefore,
the
Investigating
Officer
secured non-bailable warrants against
them on 10.1.2019. However, despite
securing the non-bailable warrants, the
accused could not be arrested.

9. The complainant, in the back drop
of the aforesaid facts, approached this Court
by filing Writ petition No.3334 (MB) of
2019 with prayer for a writ in the nature of
mandamus/direction
for
effective
investigation in F.I.R. No.1194 of 2018
(supra). A Division Bench of this Court was
of the opinion that the Magistrate having
jurisdiction, is empowered to ensure fair
and effective investigation as held by the
Supreme Court in th case of Sakiri Vasu
Vs.State of Uttar Pradesh and others, 2008
(2) SCC 409. The complainant was
relegated to file an appropriate application
before the Magistrate concerned in respect
of his grievance. A detailed reference to the
contents of the judgment rendered by the
Supreme Court in Sakiri Vasu (supra) in
paragraphs 14, 15, 17, 18, 24, 25, 27, 28,
29, 30 and 31 was made, so that the
Magistrate was sinsitize/made aware of his
powers and the onerous duty cast upon him
to ensure fair and effective investigation. In
the light of the aforesaid observation, the
writ petition was disposed of finally vide
order dated 5.2.2019.

10. The complainant, thereafter,
moved an application on 16.2.2019 in the
Court of Chief Judicial Magistrate,
Lucknow for monitoring and ensuring the
effective investigation of F.I.R. No.1194
of 2018 (supra). It was alleged that
despite non-bailable warrants having been
issued to the Investigating Officer on
10.1.2019, the accused were not arrested
till the date of filing of the application. It
was further said that in pursuance to the
order
passed
by
the
Lucknow
Development Authority on 26.12.2018,
the Hotel Grand Orion was sealed on
28.12.2018 and the notice was pasted on
the main entrance of the building. On the
same day, Smt. Kiran Dubey, wife of
respondent no.3 made a visit to the house
of the applicant in the evening and on
29.12.2018 Sri Dev Mani Dubey, MLA of
Lambhua Constituency visited the house
of the applicant and intimidated him from
pursuing the case. On 31.12.2018, the
applicant met the Additional Director
General of Police, who instructed the
Station House Officer, Police Station
Kotwali Chinhat, Lucknow to do the
needful, including arrest of the accused
persons.
On
1.1.2019
the
Senior
Superintendent of Police, Lucknow again
instructed the Station House Officer,
Police Station Kotwali Chinhat to do the
needful and get the accused arrested. It
was further said that despite having nonbailable arrest warrants dated 10.1.2019
issued by the learned Magistrate, the
police did not arrest the accused nor
pursued the proceedings under Section
82/83 Cr.P.C. It was further said that hard
disk of the CCTV footage of the hotel
dated 21.12.2018 was seized by the
Investigating Officer, but he did not
retrieve
the
incident
image/clipping
showing the time and place of the
incident.
1378 INDIAN LAW REPORTS ALLAHABAD SERIES

11. On 11.4.2019, learned Chief
Judicial Magistrate, Lucknow wrote a
letter to the Senior Superintendent of
Police, Lucknow stating that in the
investigation of F.I.R. No.1194 of 2018
(Supra), the Investigating Officer was not
making efforts to get the accused arrested.
Non-bailable warrants were obtained on
10.1.2019 from the Court, but despite two
months having gone by, the Investigating
Officer had not arrested the accused nor
he had taken any proceedings for process
under Section 82/83 Cr.P.C. It was further
said that despite the matter being quite
serious, the Investigating Officer had not
been making enough efforts. It was said
that on 18.3.2019 similar letter was
written to the Senior Superintendent of
Police, Lucknow, but the Investigation
Officer had not taken any effective and
satisfactory steps in the investigation. The
Senior
Superintendent
of
Police,
Lucknow was requested to direct the
Investigating Officer to complete the
investigation of the offence on priority
basis. Again similar letter was written by
the Chief Judicial Magistrate, Lucknow to
the Director General of Police on
27.4.2019 referring to his earlier letters
dated 18.3.2019 and 11.4.2019 on the
subject. Thereafter, on 15.5.2019 the
process under Section 82/83 Cr.P.C. was
issued against the accused, but the
accused could not be arrested.

12. On 26.7.2019, respondent no.3
filed an application under Section 438
Cr.P.C. in the Court of District &
Sessions Judge, Lucknow. The learned
Sessions Judge, Lucknow on the same
day granted an interim bail to him. The
application was fixed for 5.8.2019 for
final order. Thereafter, on 9.8.2019 the
impugned order has been passed granting
the respondent no.3 anticipatory bail.

13. Learned Sessions Judge, Court
No.1, Lucknow in the impugned order has
held that, prima facie, the incident was an
accident. Whether the owner of the hotel
and the manager were negligent or not,
can be decided during the trial. Whether
Section 304 I.P.C. is attracted or not in
the facts and circumstances of the case,
also can be decided only after trial. The
accused has no criminal history and, there
is no likelihood of him fleeing away
during the course of trial. Considering
these aspects, the respondent no.3 has
been granted the anticipatory bail till
completion of the investigation with the
conditions mentioned in the order.

14. Heard Sri Jyotinjay Misra,
learned Senior Advocate assisted by Sri
Sushil Kumar Singh, learned counsel for
the applicant and Sri L.P. Mishra for
respondent no.3 and Sri Balram Singh,
learned AGA for the State.

15. The question which falls for
consideration in the present case is
whether the learned Sessions Court
should have granted anticipatory bail to
the accused, who has been able to avoid
his arrest for seven months despite nonbailable warrants against him as well as
issuance of process under Section 82/83
Cr.P.C. and dismissal of his writ petition
and learned Chief Judicial Magistrate
writing to the police authorities.

16. The provisions of anticipatory
bail have been reintroduced vide U.P. Act
No.4 of 2019, which received assent of
the President on 1.6.2019, w.e.f. 6.6.2019.

17. The law of anticipatory bail is
well settled. The right to liberty is a
natural, inalienable right and is enshrined
as a fundamental right under Article 21 of
2 All. Ankur Mishra Vs State of U.P. & Ors.
1379
the Constitution of India. However, a
person has to respect the rights of others
recognized by law like the inviolability of
their body and their property. When a
person is reasonably suspected to have
committed an offence the machinery of
law is set in motion to arrest him and to
bring him to trial and punish him if found
guilty. The act of arrest deprives a person
of his liberty. Bail sets him free on
securing his promise to take trial at a
future date and to undergo punishment if
found guilty.

18. After Independence, by virtue of
Article 372 of the Constitution of India
the framers of the constitution had in their
wisdom deemed that all laws in force in
India,
immediately
before
the
commencement of the Constitution, were
to be continued. By virtue of Article 372,
the colonial Code of Criminal Procedure,
which was drafted in 1898, was deemed
to be the law in force even after
commencement
of
the
Constitution.
Under the Code of 1898, there was no
provision
for
the
concept
of
an
''Expectant/Anticipatory Bail' contained in
the statute. Though, the concept of an
expectant bail, even prior to the arrest of
the individual was not alien to the British
criminal regime, the same was never
enshrined in the statutory code applicable
in
India.
Hence,
shortly
after
independence, there was a divergence of
opinion amongst the various High Courts
on the power(s) of the Court(s) to exercise
and extend the protection of bail, even
prior to the arrest of a person(s). The
majority view was that the High Court did
not possess the inherent power to extend
the powers of bail prior to arrest, as there
was no such statutory provision in the
Code
of
1898.
When
the
Law
Commission
was
tasked
with
the
preparation of the 41st Report on the
Code of 1898 in 1968, one of the
recommendations
made
by
the
Commission after careful and deliberate
consideration was the introduction of the
concept of ''Anticipatory Bail'.

19. The Law Commission was of the
opinion that a necessity had arisen for
grant of anticipatory bail primarily for the
reason in the rise of the number of false
criminal cases being filed by rivals to
implicate influential persons and having
them restrained for days in police
custody, so as to disgrace or intimidate
them and, as the political climate was
growing ever more hostile & adversarial
and the number of such false cases were
likely to increase. The Commission also
noted that even apart from the possibility
of such false cases being filed, if there are
reasonable grounds for holding that a
person accused of an offence is not likely
to abscond, or otherwise misuse his
liberty while on bail, there was no
justification to require such a person to
first submit to custody, then remain
incarcerated for some days, and then
apply for bail. Therefore, the Law
Commission was of the view that the
power of anticipatory bail should be
conferred only on the High Court and the
Court of Sessions and that the order
should take effect at the time of arrest.
The Commission proposed that a new
Section being Section 497A of the Code
of 1898 be introduced, granting the power
to the High Court or Court of Session to
direct that a person may be released on
bail in the event of his arrest, if such
person had approached the Court having a
reasonable apprehension that he would be
arrested on an accusation of committing a
non-bailable offence. What conditions
should
be
imposed
while
granting
1380 INDIAN LAW REPORTS ALLAHABAD SERIES
anticipatory bail, the Commission though
it proper to left it to the discretion of the
High Court and the Court of Sessions for
imposing such conditions.

20. The suggestions of the Law
Commission were, in principle, accepted
by
the
Central
Government
which
introduced clause 447 in the Draft Bill of
the Code of Criminal Procedure, 1970
with a view to conferring an express
power on the High Courts and the Court
of Sessions. The Law Commission, in its
48th Report which was tabled in 1972, in
order to prevent abuse, recommended that
the final order should be made only after
notice to the Public Prosecutor and an
initial order should only be an interim
one.

21. In light of the recommendations
of the Committee requiring for a revamp
of the Code, the Legislature repealed the
Code of 1898 and enacted the Code of
Criminal Procedure, 1973. The newly
enacted CrPC contained the statutory
provision empowering the High Court and
the Sessions Court to grant anticipatory
bail vide Section 438 of the CrPC.

22.

Shortly,
thereafter,
an
unprecedented Emergency was declared
in the country. The State of Uttar Pradesh
vide Section 9 of the U.P. Act 16 of 1976
omitted the application of Section 438 of
the Cr.P.C. in the State of Uttar Pradesh,
w.e.f. 01.05.1976. However, while the
same was omitted by the State of Uttar
Pradesh, the doctrine of anticipatory bail,
as applicable to the rest of country, has
evolved over the course of time. As
mentioned earlier, the provisions of
anticipatory bail by insertion of Section
438 Cr.P.C. in the State of Uttar Pradesh
has been reintroduced w.e.f. 6.6.2019.

23. When the provisions of Section
438 Cr.P.C. were not applicable in the
State of Uttar Pradesh, the accused used
to approach the High Court under Article
226 of the Constitution of India for grant
of relief of anticipatory bail.

24. The Supreme Court in the case
of Hema Mishra Vs. State of Uttar
Pradesh and others, (2014) 4 SC 453 has
held that the accused under the normal
circumstances would not be entitled to
claim the relief against his arrest under
Article 226 of the Constitution of India
inasmuch as in absence of the provisions
of Section 438 Cr.P.C., the second
window for such a relief under Article
226 of the Constitution of India would not
be available. However, the High Court in
appropriate cases in exercise of its
jurisdiction under Article 226 of the
Constitution of India can grant such a
relief, but such power is to be exercised
with extreme caution and sparingly where
arrest of a person would lead to total
miscarriage of justice or where there may
be cases where pre-arrest was entirely
unwarranted and lead to disastrous
consequences. It has also been held that
on dismissal by the High Court under
Article 226 of the Constitution of India,
while
examining
the
challenge
for
quashing the FIR or a charge-sheet, the
High Court cannot grant further relief
against arrest for specific period or till the
completion of the trial. Paragrphas 21, 26,
27, 35 and 36 of the aforesaid judgement,
which are relevant, are extracted herein
below :-

"21. I may, however, point out
that there is unanimity in the view that in
spite of the fact that Section 438 has been
specifically
omitted
and
made
inapplicable in the State of Uttar
2 All. Ankur Mishra Vs State of U.P. & Ors.
1381
Pradesh, still a party aggrieved can
invoke the jurisdiction of the High Court
under Article 226 of the Constitution of
India, being extraordinary jurisdiction
and the vastness of the powers naturally
impose considerable responsibility in its
application. All the same, the High Court
has got the power and sometimes duty in
appropriate cases to grant reliefs, though
it is not possible to pinpoint what are the
appropriate cases, which have to be left to
the wisdom of the Court exercising
powers
under
Article
226
of
the
Constitution of India.

26. I would like to remark that
in the absence of any provisions like
Section 438 CrPC applicable in the State
of Uttar Pradesh, there is a tendency on
the part of the accused persons, against
whom FIR is lodged and/or charge-sheet
is filed in the Court, to file a writ petition
for quashing of those proceedings so that
they are able to get protection against the
arrest in the interregnum which is the
primary motive for filing such petitions. It
is for this reason that invariably after the
lodging of the FIR, a writ petition under
Article 226 is filed with the main prayer
to quash those proceedings and to claim
interim relief against pre-arrest in the
meantime or till the completion of the
trial. However, the considerations which
have to weigh with the High Court to
decide as to whether such proceedings
are to be quashed or not are entirely
different than that of granting interim
protection against the arrest. Since the
grounds on which such an FIR or chargesheet can be quashed are limited, once the
writ petition challenging the validity of
the FIR or charge-sheet is dismissed, the
grant of relief, incidental in nature,
against arrest would obviously not arise,
even when a justifiable case for grant of
anticipatory bail is made out.

27. It is for this reason, we are
of the opinion that in appropriate cases
the High Court is empowered to entertain
the petition under Article 226 of the
Constitution of India where the main
relief itself is against arrest. Obviously,
when provisions of Section 438 CrPC are
not available to the accused persons in
the State of Uttar Pradesh, under the
normal
circumstances
such
accused
persons would not be entitled to claim
such a relief under Article 226 of the
Constitution. It cannot be converted into a
second window for the relief which is
consciously denied statutorily making it a
case of casus omissus. At the same time,
as rightly observed in para 21 extracted
above, the High Court cannot be
completely denuded of its powers under
Article 226 of the Constitution, to grant
such a relief in appropriate and deserving
cases; albeit this power is to be exercised
with extreme caution and sparingly in
those cases where arrest of a person
would lead to total miscarriage of justice.
There may be cases where pre-arrest may
be entirely unwarranted and lead to
disastrous consequences. Whenever the
High Court is convinced of such a
situation, it would be appropriate to grant
the relief against pre-arrest in such cases.
What would be those cases will have to be
left to the wisdom of the High Court.
What is emphasised is that the High Court
is not bereft of its powers to grant this
relief
under
Article
226
of
the
Constitution.

35. It is pertinent to mention
that though the High Courts have very
wide powers under Article 226, the very
vastness of the powers imposes on it the
responsibility
to
use
them
with
circumspection and in accordance with
the judicial consideration and wellestablished principles, so much so that
1382 INDIAN LAW REPORTS ALLAHABAD SERIES
while entertaining writ petitions for
granting interim protection from arrest,
the Court would not go on to the extent of
including the provision of anticipatory
bail as a blanket provision.

36. Thus, such a power has to be
exercised very cautiously keeping in view, at
the same time, that the provisions of Article
226 are a device to advance justice and not
to frustrate it. The powers are, therefore, to
be exercised to prevent miscarriage of justice
and to prevent abuse of process of law by the
authorities indiscriminately making prearrest of the accused persons. In entertaining
such a petition under Article 226, the High
Court is supposed to balance the two
interests. On the one hand, the Court is to
ensure that such a power under Article 226
is not to be exercised liberally so as to
convert
it
into
Section
438
CrPC
proceedings, keeping in mind that when this
provision is specifically omitted in the State
of Uttar Pradesh, it cannot be resorted to as
back door entry via Article 226. On the other
hand, wherever the High Court finds that in
a given case if the protection against prearrest is not given, it would amount to gross
miscarriage of justice and no case, at all, is
made for arrest pending trial, the High Court
would be free to grant the relief in the nature
of anticipatory bail in exercise of its power
under Article 226 of the Constitution. It is
again clarified that this power has to be
exercised sparingly in those cases where it is
absolutely warranted and justified."

25. Thus, while there was no
provision for anticipatory bail in State of
Uttar Pradesh, in appropriate cases, the
High Court under Article 226 of the
Constitution of India has been granting
relief from arrest to a person.

26. A constitution Bench of the
Supreme Court in Shri Gurbaksh Singh
Sibbia and others v State of Punjab
reported in (1980) 2 SCC 565 upheld the
constitutionality of Section 438 Cr.P.C.
The aforesaid judgement laid down
guidelines and consideration for grant of
anticipatory bail.

27. An anticipatory bail is a prearrest legal process, which directs that if
the person in whose favour it is issued is,
thereafter, arrested on the accusation in
respect of which the direction is issued, he
shall be released on bail. The distinction
between an ordinary order of bail and an
order of anticipatory bail is that whereas
the former is granted after arrest and,
therefore, means release from the custody
of the police, the latter is granted in
anticipation of arrest and, is therefore
effective at the very moment of arrest. A
direction under Section 438 is, therefore,
intended to confer conditional immunity
from
the
tough
or
confinement
contemplated by Section 46 of the Code.

28. The Supreme Court in the
aforesaid
judgment
culled
out
the
distinction between bail and anticipatory
bail by noting that the expression
''anticipatory bail' is a convenient mode of
conveying that, it is possible to apply for
bail in anticipation of arrest. The bail is
basically release from restraint, more
particularly, release from the custody of
the police. The act of arrest directly
affects freedom of movement of the
person arrested by the police, and
speaking generally, an order of bail gives
back to the accused that freedom on
condition that he will appear to take his
trial. 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
2 All. Ankur Mishra Vs State of U.P. & Ors.
1383
offence or offences in respect of which
the order is issued. The filing of a first
information report is not a condition
precedent to the exercise of the power
under Section 438. The imminence of a
likely arrest founded on a reasonable
belief can be shown to exist even if, an
FIR is not yet filed. Thus, anticipatory
bail can be granted even after an FIR is
filed, so long as the applicant has not been
arrested.

29. Paragraphs 7, 8, 35 and 41 of the
judgement rendered in the case of Shri
Gurbaksh Singh Sibbia and others
(supra), which are relevant, are extracted
herein below:-

"7. The facility which Section
438 affords is generally referred to as
''anticipatory bail', an expression which
was used by the Law Commission in its
41st Report. Neither the section nor its
marginal note so describes it but, the
expression
''anticipatory
bail'
is
a
convenient mode of conveying that it is
possible to apply for bail in anticipation
of arrest. Any order of bail can, of course,
be effective only from the time of arrest
because, to grant bail, as stated in
Wharton's Law Lexicon, is to ''set at
liberty a person arrested or imprisoned,
on
security
being
taken
for
his
appearance'. Thus, bail is basically
release from restraint, more particularly,
release from the custody of the police. The
act of arrest directly affects freedom of
movement of the person arrested by the
police, and speaking generally, an order
of bail gives back to the accused that
freedom on condition that he will appear
to take his trial. Personal recognisance,
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 at the trial of
offence or offences of which he is charged
and for which he was arrested. The
distinction between an ordinary order of
bail and an order of anticipatory bail is
that whereas the former is granted after
arrest and therefore means release from
the custody of the police, the latter is
granted in anticipation of arrest and is
therefore effective at the very moment of
arrest. Police custody is an inevitable
concomitant of arrest for non-bailable
offences. An order of anticipatory bail
constitutes, so to say, an insurance
against police custody following upon
arrest for offence or offences in respect of
which the order is issued. In other words,
unlike a post-arrest order of bail, it is a
pre-arrest legal process which directs
that if the person in whose favour it is
issued is thereafter arrested on the
accusation in respect of which the
direction is issued, he shall be released on
bail. Section 46(1) of the Code of
Criminal Procedure which deals with how
arrests are to be made, provides that in
making the arrest, the police officer or
other person making the arrest "shall
actually touch or confine the body of the
person to be arrested, unless there be a
submission to the custody by word or
action". A direction under Section 438 is
intended to confer conditional immunity
from this ''touch' or confinement.

8. No one can accuse the police
of possessing a healing touch nor indeed
does anyone have misgivings in regard to
constraints consequent upon confinement
in police custody. But, society has come to
accept and acquiesce in all that follows
upon a police arrest with a certain
amount of sang-frosd, insofar as the
ordinary rut of criminal investigation is
concerned. It is the normal day-to-day
1384 INDIAN LAW REPORTS ALLAHABAD SERIES
business of the police to investigate into
charges brought before them and, broadly
and generally, they have nothing to gain,
not favours at any rate, by subjecting
ordinary
criminals
to
needless
harassment. But the crimes, the criminals
and
even
the
complainants
can
occasionally
possess
extraordinary
features. When the even flow of life
becomes turbid, the police can be called
upon to inquire into charges arising out
of political antagonism. The powerful
processes of criminal law can then be
perverted for achieving extraneous ends.
Attendant upon such investigations, when
the police are not free agents within their
sphere of duty, is a great amount of
inconvenience,
harassment
and
humiliation. That can even take the form
of the parading of a respectable person in
handcuffs, apparently on way to a Court
of justice. The foul deed is done when an
adversary is exposed to social ridicule
and obloquy, no matter when and whether
a conviction is secured or is at all
possible. It is in order to meet such
situations, though not limited to these
contingencies, that the power to grant
anticipatory bail was introduced into the
Code of 1973.

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

36. Secondly, if an application
for anticipatory bail is made to the High
Court or the Court of Session it must
apply its own mind to the question and
decide whether a case has been made out
for granting such relief. It cannot leave
the question for the decision of the
Magistrate concerned under Section 437
of the Code, as and when an occasion
arises. Such a course will defeat the very
object of Section 438.

37. Thirdly, the filing of a first
information report is not a condition
precedent to the exercise of the power
under Section 438. The imminence of a
likely arrest founded on a reasonable
belief can be shown to exist even if an FIR
is not yet filed.

38. Fourthly, anticipatory bail
can be granted even after an FIR is filed,
so long as the applicant has not been
arrested.

39. Fifthly, the provisions of
Section 438 cannot be invoked after the
arrest of the accused. The grant of
2 All. Ankur Mishra Vs State of U.P. & Ors.
1385
"anticipatory bail" to an accused who is
under arrest involves a contradiction in
terms, insofar as the offence or offences
for which he is arrested, are concerned.
After arrest, the accused must seek his
remedy under Section 437 or Section 439
of the Code, if he wants to be released on
bail in respect of the offence or offences
for which he is arrested.

40. We have said that there is
one proposition formulated by the High
Court with which we are inclined to
agree. That is proposition (2). We agree
that a ''blanket order' of anticipatory bail
should not generally be passed. This flows
from the very language of the section
which, as discussed above, requires the
applicant to show that he has "reason to
believe" that he may be arrested. A belief
can be said to be founded on reasonable
grounds only if there is something
tangible to go by on the basis of which it
can
be
said
that
the
applicant's
apprehension that he may be arrested is
genuine. That is why, normally, a
direction should not issue under Section
438(1) to the effect that the applicant
shall be released on bail "whenever
arrested
for
whichever
offence
whatsoever". That is what is meant by a
''blanket order' of anticipatory bail, an
order which serves as a blanket to cover
or protect any and every kind of allegedly
unlawful activity, in fact any eventuality,
likely or unlikely regarding which, no
concrete information can possibly be had.
The rationale of a direction under Section
438(1) is the belief of the applicant
founded on reasonable grounds that he
may be arrested for a non-bailable
offence. It is unrealistic to expect the
applicant to draw up his application with
the meticulousness of a pleading in a civil
case and such is not requirement of the
section. But specific events and facts must
be disclosed by the applicant in order to
enable the court to judge of the
reasonableness of his belief, the existence
of which is the sine qua non of the
exercise of power conferred by the
section.

41. Apart from the fact that the
very language of the statute compels this
construction, there is an important
principle involved in the insistence that
facts, on the basis of which a direction
under Section 438(1) is sought, must be
clear and specific, not vague and general.
It is only by the observance of that
principle that a possible conflict between
the right of an individual to his liberty
and the right of the police to investigate
into crimes reported to them can be
avoided. A blanket order of anticipatory
bail is bound to cause serious interference
with both the right and the duty of the
police in the matter of investigation
because, regardless of what kind of
offence is alleged to have been committed
by the applicant and when, an order of
bail
which
comprehends
allegedly
unlawful activity of any description
whatsoever, will prevent the police from
arresting the applicant even if he
commits, say, a murder in the presence of
the public.