# SIDDHARAM SATLINGAPPA MHETRE v. STATE OF

- **Citation:** [2010] 15 S.C.R. 201
- **Court:** Supreme Court of India
- **Decided:** 2010-12-02
- **Case number:** Criminal Appeal No. 2271 of 2010
- **Bench:** Dalveer Bhandari, K.S. Panicker Radhakrishnan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/siddharam-satlingappa-mhetre-v-state-of-26738
- **Pages:** 74

## Headnote

Code of Criminal Procedure, 1973:
s. 438 - Anticipatory bail - Grant of - Appellant was
member of a political party - FIR alleging that appellant and
his brother instigated their party workers to fire gun shots at
A
B
c
the workers of opponent political party which resulted in the
murder of one person - Murder took place eight days after D
the incident of instigation - Application for anticipatory bail
by appellant - Rejection of, by the High Court - Sustainability
of - Held: Order passed by the High Court not sustainable -
Appellant directed to join investigation and in the event of
arrest, appellant to be released on bail on his furnishing a
E
personal bond - Judgment of Constitution Bench of the
Supreme Court in *Sibbia's case being on the same issue
regarding ambit, scope and object of the concept of
anticipatory bail u/s. 438 followed - Judicial discipline - Bail
- Precedent.
ss. 438 and 437 - Power u/s 438, if subject to limitations
uls. 437 - Held: The limitations mentioned in s. 437 cannot
be read into s. 438 - Plentitude of s. 438 must be given its
full play - Court can impose conditions for the grant of bail -
F
Baa
G
s. 438 - Anticipatory bail - Grant of, for limited period -
Held: Order granting anticipatory bail for a limited duration
and, thereafter, directing the accused to surrender and apply
201
H
202
SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A before a regular bail is contrary to the legislative intention and
the judgment of the Constitution Bench in *Sibbia's case -
When the bail order is confirmed then the benefit of the grant
of the bail should continue till the end of the trial of that case
- Directing the accused to surrender to custody after the
B limited period amounts to deprivation of his personal liberty
- s. 438 does not mention anything about the duration to which
a direction for release on bail in the event of arrest can be
granted - Courts should not impose restrictions on the ambit
and scope of s. 438 which are not envisaged by the legislature
c - Constitution of India, 1950 - Article 21 - Interpretation of
statutes - Legislative intent.
s. 438 - Anticipatory bail -
Scope and ambit of -
Discussed.
D
s. 438 - Anticipatory bail - Grant or refusal of - Exercise
of power - Relevant considerations for - Held: Courts should
maintain fine balance between societal interest vis-a-vis
personal liberty while adhering to the fundamental principle
of criminal jurisprudence regarding presumption of innocence
E of an accused until he is found guilty and sanctity of individual
liberty - Discretion must be exercised on the basis of the
available material and the facts of the particular case - When
accused joins investigation and fully co-operates with the
investigating agency, custodial interrogation should be
F avoided - Bail - Criminal jurisprudence.
Jurisprudence : Liberty - Personal liberty - Relevance
and importance of - Explained.
Constitution of India, 1950: Articles 21 and 19(1) - Right
G to life and personal liberty - Concept of - Explained.
Doctrines: Doctrine of per incuriam - Judgment passed
in ignorance of binding precedent - Held: Is rendered per
incuriam.
H
Constitution of India, 1950: Article 141 - Reference to
SIDDHARAM SATLINGAPPA MHETRE v. STATE OF
203
MAHARASHTRA
larger Bench - When - Held: In case there is no judgment of A
a Constitution Bench or larger Bench of binding nature and
if the courl doubts the correctness of the judgments by two or
three judges, then the proper course would be to refer the
matter to a larger Bench of appropriate strength - Reference
to larger Bench.
B
The appellant was a member of the Congress party.
According to the prosecution, the appellant alongwith his
brother instigated their party workers to fire gun shots at
the workers of BJP party which led to killing of one
C
person. The incident of murder took place eight days
after the alleged incident of instigation. Th~ appellant filed
an application for grant of anticipatory bail. The High
Court rejected the

## Text

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(2010] 15 (ADDL.) S.C.R. 201
SIDDHARAM SATLINGAPPA MHETRE
v .
. STATE OF MAHARASHTRA AND OTHERS
(Criminal Appeal No. 2271 of 2010)
DECEMBER 02, 2010
[DALVEER BHANDARI AND K.S. PANICKER
RADHAKRISHNAN, JJ.]
Code of Criminal Procedure, 1973:
s. 438 - Anticipatory bail - Grant of - Appellant was
member of a political party - FIR alleging that appellant and
his brother instigated their party workers to fire gun shots at
A
B
c
the workers of opponent political party which resulted in the
murder of one person - Murder took place eight days after D
the incident of instigation - Application for anticipatory bail
by appellant - Rejection of, by the High Court - Sustainability
of - Held: Order passed by the High Court not sustainable -
Appellant directed to join investigation and in the event of
arrest, appellant to be released on bail on his furnishing a
E
personal bond - Judgment of Constitution Bench of the
Supreme Court in *Sibbia's case being on the same issue
regarding ambit, scope and object of the concept of
anticipatory bail u/s. 438 followed - Judicial discipline - Bail
- Precedent.
ss. 438 and 437 - Power u/s 438, if subject to limitations
uls. 437 - Held: The limitations mentioned in s. 437 cannot
be read into s. 438 - Plentitude of s. 438 must be given its
full play - Court can impose conditions for the grant of bail -
F
Baa
G
s. 438 - Anticipatory bail - Grant of, for limited period -
Held: Order granting anticipatory bail for a limited duration
and, thereafter, directing the accused to surrender and apply
201
H
202
SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A before a regular bail is contrary to the legislative intention and
the judgment of the Constitution Bench in *Sibbia's case -
When the bail order is confirmed then the benefit of the grant
of the bail should continue till the end of the trial of that case
- Directing the accused to surrender to custody after the
B limited period amounts to deprivation of his personal liberty
- s. 438 does not mention anything about the duration to which
a direction for release on bail in the event of arrest can be
granted - Courts should not impose restrictions on the ambit
and scope of s. 438 which are not envisaged by the legislature
c - Constitution of India, 1950 - Article 21 - Interpretation of
statutes - Legislative intent.
s. 438 - Anticipatory bail -
Scope and ambit of -
Discussed.
D
s. 438 - Anticipatory bail - Grant or refusal of - Exercise
of power - Relevant considerations for - Held: Courts should
maintain fine balance between societal interest vis-a-vis
personal liberty while adhering to the fundamental principle
of criminal jurisprudence regarding presumption of innocence
E of an accused until he is found guilty and sanctity of individual
liberty - Discretion must be exercised on the basis of the
available material and the facts of the particular case - When
accused joins investigation and fully co-operates with the
investigating agency, custodial interrogation should be
F avoided - Bail - Criminal jurisprudence.
Jurisprudence : Liberty - Personal liberty - Relevance
and importance of - Explained.
Constitution of India, 1950: Articles 21 and 19(1) - Right
G to life and personal liberty - Concept of - Explained.
Doctrines: Doctrine of per incuriam - Judgment passed
in ignorance of binding precedent - Held: Is rendered per
incuriam.
H
Constitution of India, 1950: Article 141 - Reference to
SIDDHARAM SATLINGAPPA MHETRE v. STATE OF
203
MAHARASHTRA
larger Bench - When - Held: In case there is no judgment of A
a Constitution Bench or larger Bench of binding nature and
if the courl doubts the correctness of the judgments by two or
three judges, then the proper course would be to refer the
matter to a larger Bench of appropriate strength - Reference
to larger Bench.
B
The appellant was a member of the Congress party.
According to the prosecution, the appellant alongwith his
brother instigated their party workers to fire gun shots at
the workers of BJP party which led to killing of one
C
person. The incident of murder took place eight days
after the alleged incident of instigation. Th~ appellant filed
an application for grant of anticipatory bail. The High
Court rejected the application. Therefore, the appellant
filed the instant appeal.
Allowing the appeal, the Court
D
· HELD: 1.1 In the instant case, there is a direct
judgment of the Constitution Bench of this Court in
Sibbia's case dealing with "exactly the same issue
E
regarding ambit, scope and object of the concept of
anticipatory bail enumerated under Section 438 of the
Code of Criminal Procedure, 1973. The controversy is no
longer res integra. The judicial discipline obliges this
Court to follow the said judgment in letter and spirit. The
F
impugned judgment and order of the High Court
declining anticipatory bail .to the appellant cannot be
sustained and is consequently set aside. The appellant
is directed to join the investigation and fully cooperate
with the investigating agency. In the event of arrest the
appellant would be released on bail. [Paras 151, 152 and
G
153) [273-H; 274-A-C]
1.2 This Court in the * Sibbia 's case laid down the
following principles with regard to anticipatory bail:
H
204 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A
(a) Section 438(1) Cr.P.C. is to be interpreted in light
of Article 21 of the Constitution of India.
(b) Filing of FIR is not a condition precedent to
exercise of power under Section 438 Cr.P .C.
B
(c) Order under Section 438 would not affect the right
of police to conduct investigation.
c
D
E
(d) Conditions mentioned in Section 437 Cr.P.C .
. cannot be read into Section 438 Cr.P.C.
(e) Although the power to release on anticipatory bail
can be described as of an "extraordinary" character
this would "not justify the conclusion that the power
must be exercised in exceptional cases only."
(f) Powers are discretionary to be exercised in light
of the circumstances of each case.
(g) Initial order can be passed without notice to the
Public Prosecutor. Thereafter, notice must be issued
forthwith and question ought to be re-examined after
hearing. Such ad interim order must conform to
requirements of the Section and suitable conditions
should be imposed on the applicant. [Para 119] [261B-H; 262-A]
F
1.3 The Constitution Bench in *Sibbia's case
comprehensively dealt with almost all aspects of the
concept of anticipatory bail under Section 438 Cr.P.C. In
view of the clear declaration of law laid down by the
Constitution Bench in *Sibbia's case, it would not be
G proper to limit the life of anticipatory bail. When the court
observed that the anticipatory bail is for limited duration
and thereafter, the accused should apply to the regular
court for bail, that means the life of Section 438 Cr.P.C.
would come to an end after that limited duration. This
H limitation has not been envisaged by the legislature. The
SIDDHARAM SATLINGAPPA MHETRE v. STATE OF 205
MAHARASHTRA
Constitution Bench in * Sibbia's case clearly observed that
pt..
it is not necessary to re-write Section 438 Cr.P.C.
Therefore, in view of the clear declaration of the law by
the Constitution Bench, the life of the order under Section
438 Cr.P.C. granting bail cannot be curtailed. [Paras 133
and 134) [267-C-H; 268-A]
.
B
*Gurbaksh Singh Sibbia and Ors. vs. State of Punjab
(1980) 2 sec 565 - followed.
2.1 The society has a vital interest in grant or refusal
of bail because every criminal offence is an offence C
against the State. The order granting or refusing bail must
reflect perfect balance between the conflicting interests,
namely, sanctity of individual liberty and the interest of
the society. The law of bails dovetails two conflicting
interests namely, on the one hand, the requirements of D
shielding the society from the hazards of those
committing crimes and potentiality of repeating the same
crime while on bail and on the other hand absolute
adherence of the fundamental principle of criminal
jurisprudence regarding presumption of innocence of an
E
accused until he is found guilty and the sanctity of
individual liberty. [Para 3) [221-C-D]
2.2 Police custody is an inevitable concomitant of
arrest for non-bailable offences. The concept of
anticipatory bail is that a person who apprehends his
F
arrest in a non-bailable case can apply for grant of bail
to the Court of Sessions or to the High Court before the
arrest. It is clear from the statement of objects and
reasons that the purpose of incorporating Section 438 in
the Code of Criminal Procedure, 1973 was to recognize
G
the importance of personal liberty and freedom in a free
and democratic country. On analyzing Section 438 Cr.P,.C.
the wisdom of the legislature becomes quite evident and
clear that the legislature was keen to ensure respect for
the personal liberty and also pressed in service the ageH
206
SUPREME COURT REPORTS (2010] 15 (ADDL.) S.C.R.
A old principle that an individual is presumed to be innocent
till he is found guilty by the court. [Paras 14 and 17) (227B-C; F-H]
3.1 All human beings are born with some unalienable
8 rights like life, liberty and pursuit of happiness. The
importance of these natural rights can be found in the fact
that these are fundamental for their proper existence and
no other right can be enjoyed without the presence of
right to life and liberty. Life bereft of liberty would be
C without honour and dignity and it would lose all
significance and meaning and the life itself would not be
worth living. That is why 'liberty' is called the very
quintessence of a civilized existence. [Paras 42 and 43)
[235-H; 236-A-B]
D
3.2 The term 'liberty' may be defined as the
affirmation by an individual or group of his or its own
essence. It needs the presence of three factors,
harmonious balance of personality, the absence of
restraint upon the exercise of that affirmation and
E organization of opportunities for the exercise of a
continuous initiative. 'Liberty' generally means the
prevention of restraints and providing such opportunities,
the denial of which would result in frustration and
ultimately disorder. Restraints on man's liberty are laid
F down by power used through absolute discretion, which
when used in this manner brings an end to 'liberty' and
freedom is lost. At the same time 'liberty' without restraints
would mean liberty won by one and lost by another. So
'liberty' means doing of anything one desires but subject
G to the desire of others. [Paras 45, 46 and 47) [236-G-H;
237-A-E]
3.3 In a properly constituted democratic State, there
cannot be a conflict between the interests of the citizens
and those of the State. The harmony, if not the identity,
H of the interests of the State and the individual, is the
SIDDHARAM SATLINGAPPA MHETRE v. STATE OF 207
MAHARASHTRA
fundamental basis of the modern Democratic National
A
State. Yet the existence of the State and all government
and even all law must mean in a measure the curtailment
of the liberty of the individual. But such a surrender and
curtailment of his liberty is essential in the interests of the
citizens of the State. The individuals composing the State
B
must, in their own interests and in order that they may
be assured the existence of conditions in which they
can, with a reasonable amount of freedom, carry on their
other activities, endow those in authority over them to
make laws and regulations and adopt measures which c
impose certain restrictions on the activities of the
individuals. [Para 51) [238-D-G]
Chambers' Twentieth Century Dictionary; Essays on
Freedom and Power by John E.E.f.J.; Treatise on War and
Civil Liberties by M. C.
Setalvad; Development of D
Constitutional Guarantee of Liberty by Rosco Pound;
Commentaries on the Laws of England by Blackstone Vol. I,
p.134; Constitutional Law by Dicey 9th Edn., pp.207-08 -
referred to.
4.1 The Fundamental Rights represent the basic
values enriched by the people of this country. The aim
behind having elementary right of the individual such as
the Right to Life and Liberty is not fulfilled as desired by
E
the framers of the Constitution. It is to preserve and
F
protect certain basic human rights against interference
by the State. The inclusion of a Chapter in. Constitution
is in accordance with the trends of modern democratic
thought. The object is to ensure the inviolability of certain
essential rights against political vicissitudes. [Para 59]
G
[240-E-F]
4.2 Article 21 of the Constitution of India, 1950 is a
declaration of deep faith and belief in human rights. In this
pattern of guarantee woven in Chapter Ill of the
Constitution, personal liberty of man is at root of Article
H
208 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A 21 and each expression used in Article 21 enhances
human dignity and values. It lays foundation for a society
where rule of law has primary and not arbitrary or
capricious exercise of power. The early approach to
Article 21 which guarantees right to life and personal
B liberty was circumscribed by literal interpretation in A.K.
Gopalan case. But in course of time, the scope of the
application of the Article against arbitrary encroachment
by the executives was expanded by liberal interpretation
of the components of the Article in tune with the relevant
c international understanding. Thus, protection against
arbitrary privation of "life" no longer means mere
protection of death, or physical injury, but also an
invasion of the right to "live" with human dignity and
wquld include all these aspects of life which would go to
0 make a man's life meaningful and worth living, such as
his tradition, culture and heritage. The object of Article 21
is to prevent encroachment upon personal liberty in any
manner. Article 21 is repository of all human rights
essentially for a person or a citizen. A fruitful and
meaningful life presupposes full of dignity, honour,
E health and welfare. In the modern "Welfare Philosophy",
it is for the State to ensure these essentials of life to all
its citizens, and if possible to non-citizens. [Paras 67, 69
and 71] [242-H; 243-A, D-F, H; 244-A-B]
F
A. K. Gopalan v. The State of Madras AIR 1950 SC 27;
Kharak Singh v. State of U.P. and Ors. AIR 1963 SC 1295;
Maneka Gandhi v. Union of India and Anr. (1978) 1 SCC 248;
State of A.P. v. Challa Ramakrishna Reddy and Ors. (2000)
5 SCC 712; Kartar Singh v. State of Punjab and Ors. (1994)
G 3 SCC 569; Francis Coralie Mullin v. Administrator, Union
Territory of Delhi and Ors. (1981) 1 SCC 608; P. Rathinam/
Nagbhusan Patnaik v. Union of India and Anr. (1994) 3 SCC
394; Khedat Mazdoor Chetana Sangath v. State of M.P. and
Ors. (1994) 6 SCC 260; Central Inland Water Transport
H Corporation Ltd. and Anr. v. Brojo Nath Ganguly and Anr.
SIDDHARAM SATLINGAPPA MHETRE v. STATE OF 209
MAHARASHTRA
(1986) 3 SCC 156; Prem Shankar Shukla v. Delhi A
Administration (1980) 3 sec 526 - relied on.
Bugdaycay v. Secretary of State for the Home
Department (1987) 1 Ail ER 940; R on the application of
Pretty v. Director of Public Prosecutions (2002) 1 All ER 1;
8
R. v. Curr (1972) S.C.R. 889 - referred to.
5.1 The complaint filed against the accused needs to
be thoroughly examined including the aspect whether
the complainant has filed false or frivolous complaint on
earlier occasion. The ~ourt should also examine the fact C
whether there is any family dispute between the accused
and the complainant and the complainant must be clearly
told that if the complaint is found to be false or frivolous,
then strict action will be taken against him in accordance
with law. If the connivance between the complainant and
D
the investigating officer is established then action be
taken against the investigating officer in accordance with
law. The gravity of charge and exact role of the accused
must be properly comprehended. Before arrest, the
arresting officer must record the valid reasons which
E
have led to the arrest of the accused in the case diary. In
exceptional cases the reasons could be recorded
immediately after the arrest, so that while dealing with the
bail application, the remarks and observations of the
arresting officer can also be properly evaluated by the
F
court. [Paras 94 and 95] [252-G-H; 253-A-C]
5.2 It is imperative for the courts to carefully and with
meticulous precision evaluate the facts of the case. The
discretion must be exercised on the basis of the available
material and the facts of the particular case. In cases
G
where the court is of the considered view that the
· accused has joined investigation and he is fully cooperating with the investigating agency and is not likely
to abscond, in that event, custodial interrogation should
be avoided. [Paras 96) [253-D-E]
H
210
SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A
6.1 The Constitution Bench in Sibbia's case clearly
B
observed that there is no justification for reading into
Section 438 Cr.P.C. the limitations mentioned in Section
437 Cr.P.C. The plentitude of the Section must be given
its full play. [Para 98) [253-H; 254-A-B]
6.2 The proper course of action for grant of
anticipatory bail ought to be that after evaluating the
averments and accusation available on the record if the
court is inclined to grant anticipatory bail then an interim
bail be granted and notice be issued to the public
C prosecutor. After hearing the public prosecutor the court
may either reject the bail application or confirm the initial
order of granting bail. The court would certainly be
entitled to· impose conditions for the grant of bail. The
public prosecutor or complainant would be at liberty to
D move the same court for cancellation or modifying the
conditions of bail any time if liberty granted by the court
is misused. The bail granted by the court should
ordinarily be continued till the trial of the case. [Para 101)
[254-G-H; 255-A-B]
E
6.3 The court which grants the bail also has the
power to cancel it. The discretion of grant or cancellation
of bail can be exercised either at the instance of the
accused, the public prosecutor or the complainant on
F finding new material or circumstances at any point of
time. [Para 103) [255-D]
6.4 The intention of the legislature is quite clear that
the power of grant or refusal of bail is entirely
discretionary. The Constitution Bench in Sibbia's case
G clearly stated that grant and refusal is discretionary and
it should depend on the facts and circumstances of each
case; and that the wisdom of the Legislature entrusting
this power to the superior courts namely, the High Court
and the Court of Session must be respected. [Para 104]
H [255-E-F]
SIDDHARAM SATLINGAPPA MHETRE v. STATE OF 211
MAHARASHTRA
7.1 The order granting anticipatory bail for a limited
A
duration and, thereafter, directing the accused to
surrender and apply before a regular bail is contrary to
the legislative intention and the judgment of the
Constitution Bench in Sibbia's case. [Para 102) [255-CJ
B
7 .2 The court which grants the bail also has the
power to cancel it according to the provisions of the
General Clauses Act but ordinarily after hearing the public
prosecutor when the bail order is· confirmed then the
benefit of the grant of the bail should continue till the end
of the trial of that case. [Para 105] [256-D]
C
7.3 The restriction on the provision of anticipatory
bail under Section 438 Cr.P.C. limits the personal liberty
of the accused granted under Article 21 of the
Constitution. 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. [Para 107) [256-F-H; 257-A]
Maneka Gandhi v. Union of India and Anr. (1978) 1 SCC
248 - relied on.
7.4 Section 438 Cr.P.C. does not mention anything
about the duration to which a direction for release on bail
in the event of arrest can be granted. The order granting
an~ipatory bail is a direction specifically to release the
actused on bail in the event of his arrest. Once such a
direction of anticipatory llail is executed by the accused
and he is released on bail, the concerned court would be
fully justified in imposing conditions including direction
of joining investigation. [Para 108] [257-B-C]
7 .5 In pursuance to the order of the Court of
Sessions or the High Court, once the accused is released
on bail by the trial court, then it would be unreasonable
to compel the accused to surrender before the trial court
D
E
F
G
H
212 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A and again apply for regular bail. The court must bear in
mind that at times the applicant would approach the
court for grant of anticipatory bail on mere apprehension
of being arrested on accusation of having committed a
non-bailable offence. In fact, the investigating or
8 concerned agency may not otherwise arrest that
applicant who has applied for anticipatory bail but just
because he makes an application before the court and
gets the relief from the court for a limited period and,
thereafter, he has to surrender before the trial court and
C only thereafter his bail application can be considered and
life of anticipatory bail comes to an end. This may lead
to disastrous and unfortunate consequences. [Paras 110
and 111) [257-E-H; 258-A]
7.6 The courts should not impose restrictions on the
D ambit and scope of Section 438 Cr.P.C. which are not
envisaged by the Legislature. The court cannot rewrite
the provision of the statute in the garb of interpreting it.
It is unreasonable to lay down strict, inflexible and rigid
rules for exercise of such discretion by limiting the period
E of which an order under this Section could be granted.
Once the anticipatory bail is granted then the protection
should ordinarily be available till the end of the trial
unless the interim protection by way of the grant of
anticipatory bail is curtailed when the anticipatory bail
F granted by the court is cancelled by the court on finding
fresh material or circumstances or on the ground of
abuse of the indulgence by the accused. [Paras 113, 114
and 117) [258-E-H; 260-G-H; 261-A]
8.1 No inflexible guidelines or straitjacket formula can
G be provided for grant or refusal of anticipatory bail. No
attempt should be made to provide rigid and inflexible
guidelines in this respect because all circumstances and
situations of future cannot be clearly visualized for the
grant or refusal of anticipatory bail. In consonance with
H
SIDDHARAM SATLINGAPPA MHETRE v. STATE OF 213
MAHARASHTRA
the legislative intention the grant or refusal of anticipatory
A
bail should necessarily depend on facts and
circumstances of each case. [Para 121] [262-F-G]
8.2 The following factors and parameters can be
taken into consideration while dealing with the
anticipatory bail:
(i) The nature and gravity of the accusation and the
exact role of the accused must be properly
comprehended before arrest is made;
(ii) The antecedents of the applicant including the
fact as to whether the accused has previously
undergone imprisonment on conviction by a Court
in respect of any cognizable offence;
B
c
(iii) The possibility of the applicant to flee from justice;
D
(iv) The possibility of the accused's likelihood to
repeat similar or the other offences;
(v) Where the accusations have been made only with
the object of injuring or humiliating the applicant by
arresting him or her;
(vi) Impact of grant of anticipatory bail particularly in
cases of large magnitude affecting a very large
number of people;
E
F
(vii) The courts must evaluate the entire available
material against the accused very carefully. The court
must also clearly comprehend the exact role of the
accused in the case. The cases in which accused is G
implicated with the help of Sections 34 and 149 of the
Penal Code, the court should consider with even
greater care and caution because over implication in
the cases is a matter of common knowledge and
concern;
H
214
SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A
(viii) While considering the prayer for grant of
anticipatory bail, a balance has to be struck between
two factors namely, no prejudice should be caused
to the free, fair and full investigation and there
should be prevention of harassment, humiliation and
B
unjustified detention of the accused;
(ix) The court to consider reasonable apprehension
of tampering of the witness or apprehension of threat
to the complainant;
C
(x) Frivolity in prosecution should always be
considered and it is only the element of genuineness
that shall have to be considered in the matter of grant
of bail and in the event of there being some doubt
as to the genuineness of the prosecution, in the
D
normal course of events, the accused is entitled to
an order of bail. [Para 122) [263-A-H; 264-A-D]
8.3 The arrest should be the last option and it should
be restricted to those exceptional cases where arresting
E the accused is imperative in the facts and circumstances
of that case. The court must carefully examine the entire
available record and particularly the allegations which
have been directly attributed to the accused and these
allegations are corroborated by other material and
F circumstances on record. [Paras 123 and 124) [264-D-F]
8.4 Personal liberty is a very precious fundamental
right and it should be curtailed only when it becomes
imperative according to the peculiar facts and
circumstances of the case. In case, the State considers
G the following suggestions in proper perspective then
perhaps it may not be necessary to curtail the personal
liberty of the accused in a routine manner. These
suggestions which are only illustrative and not
exhaustive are:
H
$1DDHARAM SATLINGAPPA MHETRE v. STATE OF 215
MAHARASHTRA
(1) DireCt the accused to join investigation and only
A
when the accused does not co-operate with the
investigating agency, then only the accused be
arrested.
(2) Seize either the passport or such other related
8
documents, such as, the title deeds of properties or
the Fixed Deposit Receipts/Share Certificates of the
accused.
(3) Direct the accused to execute bonds;
(4) The accused may be directed to furnish sureties
of number of persons which according to the
prosecution are necessary in view of the facts of the
particular case.
c
(5) The accused be directed to furnish unde~king D
that he would not visit the place where the witnesses
reside so that the possibility of tampering of evidence
or otherwise influencing the course of justice can be
avoided.
(6) Bank accounts be frozen for small duration
during investigation. [Paras 127 and 128) [265-D-H;
266-A-C]
E
8.5 In case the arrest is imperative, according to the
F
facts of the case, in that event, the arresting officer must
clearly record the reasons for the arrest of the accused
before the arrest in the case diary, but in exceptional
cases where it becomes imperative to arrest the accused
immediately, the reasons be recorded in the case diary
immediately after the arrest is made without loss of any
G
time so that the court has an opportunity to properly
consider the case for grant or refusal of bail in the light
of reasons recorded by the arresting officer. [Para 129)
[266-D]
H
216 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A
8.6 The exercise of jurisdiction under Section 438
Cr.P.C. is extremely important judicial function of a judge
and must be entrusted to judicial officers with some
experience and good track record. Both individual and
society have vital interest in orders passed by the courts
B in anticipatory bail applications. It is imperative for the
High Courts through its judicial academies to periodically
organize workshops, symposiums, seminars and
lectures by the experts to sensitize judicial officers, police
officers and investigating officers so that they can
c properly comprehend the importance of personal liberty
vis-a-vis social interests. They must learn to maintain fine
balance between the personal liberty and the social
interests. The performance of the judicial officers must be
periodically evaluated on the basis of the cases decided
0 by them. In case, they have not been able to maintain
balance between personal liberty and societal interests,
the lacunae must be pointed out to them and they may
be asked to take corrective measures in future.
Ultimately, the entire discretion of grant or refusal of bail
has to be left to the judicial officers and all concerned
E must ensure that grant or refusal of bail is considered
basically on the facts and circumstances of each case.
[Paras 130, 131 and 132) (266-E-H; 267-A-B]
8.7 The discretion vested in the court in all matters
F should be exercised with care and circumspection
depending upon the facts and circumstances justifying
its exercise. Similarly, the discretion vested with the court
under Section 438 Cr.P.C. should also be exercised with
caution and prudence. It is unnecessary to travel beyond
G it and subject to the wide power and discretion conferred
by the legislature to a rigorous code of self-imposed
limitations. [Para 137] (268-E-F]
H
Joginder Kumar v. State of UP. and Ors. (1994) 4 SCC
260 - referred to.
SIDDHARAM SATLINGAPPA MHETRE v. STATE OF 217
MAHARASHTRA
9.1 The judgments and orders in Salauddin
A
Abdulsamad Shaikh v. State of Maharashtra; K. L. Verma v.
State and Anr.; Adri Dharan Das v. State of West Bengal;
Sunita Devi v. State of Bihar and Anr. and; Naresh Kumar
Yadav v Ravindra Kumar case are clearly contrary to the
law declared by the Constitution Bench of this Court in
B
Sibbia's case. These judgments are also contrary to the
legislative intention. The court would not be justified in
re-writing Section 438 Cr.P.C. [Para 138) [268-G]
9.2 The analysis of English and Indian Law clearly
C
leads to the irresistible conclusion that not only the
judgment of a larger strength is binding on a judgment
of smaller strength but the judgment of a co-equal
strength is also binding on a Bench of judges of co-equal
strength. In the instant case, the judgments by two or
three judges of this. Court in Salauddin Abdulsamad D
Shaikh v. State of Maharashtra; K. L. Verma v. State and Anr.;
Adri Dharan Das v. State of West Bengal; Sunita Devi v. State
of Bihar and Anr. and; Naresh Kumar Yadav v Ravindra
Kumar case have clearly ignored a Constitution Bench
judgment of this Court in Sibbia's case which has
E
comprehensively dealt with all the facets of anticipatory
bail enumerated under Section 438 of Cr.P.C ..
Consequently, the said judgments are per incuriam. [Para
149) [273-D-F]
Salauddin Abdulsamad Shaikh v. State of Maharashtra
(1996) 1 SCC 667; K. L. Verma v. State and Anr. (1998) 9
SCC 348; Adri Dharan Das v. State of West Bengal (2005)
4 SCC 303; Sunita Devi v. State of Bihar and Anr. (2005) 1
SCC 608; Naresh Kumar Yadav v Ravindra Kumar (2008) 1
sec 632 - per incuriam.
Government of A.P. and Anr. v. 8. Satyanarayana Rao
(dead) by LRs. and Ors. (2000) 4 SCC 262; Union of India v.
Raghubir Singh (1989) 2 SCC 754; Thota Sesharathamma
F
G
H
218
SUPREME COURT REPORTS [201 OJ 15 (ADDL.) S.C.R.
A and another v. Thota Manikyamma (Dead) by LRs. and Ors.
(1991) 4 SCC 312; Mst. Karmi v. Amru (1972) 4 SCC 86; R.
Thiruvirkolam v. Presiding Officer and Anr. (1997) 1 SCC 9;
Gujarat Steel Tubes Ltd. v. Mazdoor Sabha (1980) 2 SCC
593; P.H. Kalyani v. Air France (1964) 2 SCR 104; Bharat
B Petroleum Corporation Ltd. v. Mumbai Shramik Sangra and
Ors. (2001) 4 SCC 448; Central Board of Dawoodi Bohra
Community v. State of Maharashtra (2005) 2 SCC 673;
Official Liquidator v. Dayanand and Ors. (2008) 10 SCC 1;
State of Kamataka and Ors. v. Umadevi (3) and Ors. (2006) 4
c SCC 1; Subhash Chandra and Anr. v. Delhi Subordinate
Services Selection Board and Ors. (2009) 15 SCC 458 -
referred to.
Young v. Bristol Aeroplane Company Limited (1994) All
ER 293; Huddersfield Police Authority v. Watson (1947) 2 All
D ER 193 - referred to.
9.3 In case there is no judgment of a Constitution
Bench or larger Bench of binding nature and if the court
doubts the correctness of the judgments by two or three
E judges, then the proper course would be to request
Hon'ble the Chief Justice to refer the matter to a larger
Bench of appropriate strength. [Para 150] [273-G]
Pokar Ram v. State of Rajasthan and Ors. (1985) 2 SCC
F 597; N. Meera Rani v. Government of Tamil Nadu and Anr.
(1989) 4 SCC 418; Vijayalaxmi Cashew Company and Ors.
v. Dy. Commercial Tax Officer and Anr. (1996) 1 SCC 468;
Union of India and Ors. v. K. S. Subramanian (1976) 3 SCC
677; State of U.P. v. Ram Chandra Trivedi (1976) 4 SCC 52;
Palanikumar and Anr. v. State 2007 (4) CTC 1 - referred to.
G
Case Law Reference:
(1980) 2 SCC 565
Referred to
H
Para 119,
149, 151
SIDDHARAM SATLINGAPPA MHETRE v. STATE OF 219
MAHARASHTRA
(1985) 2 sec 597
Referred to
Para 31
A
(1989) 4 sec 418
Referred to
Para 33
(1996) 1 sec 468
Referred to
Para 34
(1976) 3 sec 677
Referred to
Para 35
B
(1976) 4 sec 52
Referred to
Para 35
2007 (4) CTC 1
Referred .to
Para 39
AIR 1950 SC 27
Relied on
Para 62, 69 c
AIR 1963 SC 1295
Relied on
Para 64
(1978) 1 sec 248
Relied on
Para 65
(2000) 5 sec 112
Relied on
Para 66
(1994) 3 sec 569
Relied on
Para 66
D
(1981) 1 sec 608
Relied on
Para 69
(1994) 3 sec 394
Relied on
Para 70
(1994) 6 sec 260
Relied on
Para 71
E
(1986) 3 sec 156
Relied on
Para 72
(1980) 3 sec 526
Relied on
Para 74
(1987) 1 All ER 940 Referred to
Para 78
F
(2002) 1 All ER 1
Referred to
Para 78
(1972) S.C.R. 889
Referred to
Para 84
(1994) 4 sec 260
Referred to
Para 120
(2008) 1 sec 632
Referred to
Para 136
G
(1994) All ER 293
Referred to
Para 139
(1947) 2 All ER 193 Referred to
Para 140
(2000) 4 sec 262
Referred to
Para 141
H
220 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A
(1989) 2 sec 754
Referred to
Para 142
(1991) 4 sec 312
Referred to
Para 143
(1972) 4 sec 86
Referred to
Para 143
B
(1997) 1 sec 9
Referred to
Para 144
(1980) 2 sec 593
Referred to
Para 144
(1964) 2 SCR 104
Referred to
Para 144
(2001) 4 sec 448
Referred to
Para 145
c
(2005) 2 sec 673
Referred to
Para 146
(2008) 1 o sec 1
Referred to
Para 147
(2006) 4 sec 1
Referred to
Para 147
D
(2009) 15 sec 458 Referred to
Para 148
(1996) 1 sec 667
Per incuriam
Para 149
(1998) 9 sec 348
Per incuriam
Para 149
E
(2005) 4 sec 303
Per incuriam
Para 149
(2005) 1 sec 608
Per incuriam
Para 149
(2008) 1 sec 632
Per incuriam
Para 149
F
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 2271 of 2010.
From the Judgment & Order dated 06.10.2009 of the High
Court of Judicature at Bombay in Criminal Application No.
4465 of 2009.
G
Shanti Bhushan, Mahesh Jethmalani, Naveen Chomal,
Sudhir Halli, A. Raghunath, Pravin Satale, Pranav Badheka,
Priyal Sardha, Rajiv Shankar Dvivedi, Arun R. Pednekar,
Sanjay Kharde, Shankar Chillarge, Asha Gopalan Nair, Rajeev
H K. Dubey, Kamlendra Mishra for the appearing parties.
SIDDHARAM SATLINGAPPA MHETRE v. STATE OF 221
MAHARASHTRA
The Judgment of the Court was delivered by
DALVEER BHANDARI, J. 1. Leave granted.
A
2. This appeal involves issues of great public importance
pertaining to the importance of individual's personal liberty and
8
the society's interest.
3. The society has a vital interest in grant or refusal of bail
because every criminal offence is the offence against the State.
The order granting or refusing bail must reflect perfect balance
between the conflicting interests, namely, sanctity of individual
C
liberty and the interest of the society. The law of bails dovetails
two conflicting interests namely, on the one hand, the
requirements of shielding the society from the hazards of those
committing crimes and potentiality of repeating the same crime
while on bail and on the other hand absolute adherence of the o
fundamental principle of criminal jurisprudence regarding
presumption of innocence of an accused until he is found guilty
and the sanctity of individual liberty.
4. Brief facts which are necessary to dispose of this appeal
are recapitulated as under:
E
The appellant, who belongs to the Indian National Congress
party {for short 'Congress party') is the alleged accused in this
case. The case of the prosecution, as disclosed in the First
Information Report (for short 'FIR'), is that Sidramappa Patil
F
was contesting election of the State assembly on behalf of the
Bhartiya Janata Party (for short 'BJP'). In the FIR, it is
incorporated that Baburao Patil, Prakash Patil, Mahadev Patil,
Mallikarjun Patil, Apparao Patil, Yeshwant Patil were supporters
of the Congress and so also the supporters of the appellant
G
Siddharam Mhetre and opposed to the BJP candidate.
5. On 26.9.2009, around 6.00 p.m. in the evening,
Sidramappa Patil of BJP came to the village to meet his party
workers. At that juncture, Shrimant lshwarappa Kore,
H
222
SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A Bhimashankar lshwarappa Kore, Kallapa Gaddi, Sangappa
Gaddi, Gafur Patil, Layappa Gaddi, Mahadev Kore, Suresh
Gaddi, Suresh Zhalaki, Ankalgi, Sarpanch of village Shivmurti
Vijapure met Sidramappa Patil and thereafter went to worship
and pray at Layavva Devi's temple. After worshipping the
B Goddess when they came out to the assembly hall of the
temple, these aforementioned political opponents namely,
Baburao Patil, Prakash Patil, Gurunath Patil, Shrishail Patil,
Mahadev Patil, Mallikarjun Patil, Annarao @ Pintu Patil,
Hanumant Patil, Tammarao Bassappa Patil, Apparao Patil,
c Mallaya Swami, Sidhappa Patil, Shankar Mhetre, Usman
Sheikh, Jagdev Patil, Omsiddha Pujari, Panchappa Patil,
Mahesh Hattargi, Siddhappa Birajdar, Santosh Arwat,
Sangayya Swami, Anandappa Birajdar, Sharanappa Birajdar,
Shailesh Chougule, Ravi Patil, Amrutling Koshti, Ramesh Patil
0 and Chandrakant Hattargi suddenly came rushing in their
direction and loudly shouted, "why have you come to our village?
Have you come here to oppose our Mhetre Saheb? They asked
them to go away and shouted Mhetre Saheb Ki Jai."
6. Baburao Patil and Prakash Patil from the
E aforementioned group fired from their pistols in order to kill
Sidramappa Patil and the other workers of the BJP. Shima
Shankar Kore was hit by the bullet on his head and died on
the spot. Sangappa Gaddi, Shivmurti Vjapure, Jagdev Patil,
Layappa Patil, Tammaro Patil were also assaulted. It is further
F mentioned in the FIR that about eight days ago, the appellant
Siddharam Mhetre and his brother Shankar Mhetre had gone
to the village and talked to the abovementioned party workers
and told them that, "if anybody says anything to you, then you
tell me. I will send my men within five minutes. You beat
G anybody. Do whatever."
7. According to the prosecution, the appellant along with
his brother instigated their party workers which led to killing of
Bhima Shanker Kora. It may be relevant to mention that the
alleged incident took place after eight days of the alleged
H incident of instigation.
SIDDHARAM SATLINGAPPA MHETRE v. STATE OF 223
MAHARASHTRA [DALVEER BHANDARI, J.]
8. The law relating to bail is contained in sections 436 to
A
450 of chapter XXXlll of the Code of Criminal Procedure, 1973.
Section 436 deals with situation, in what kind of cases bail
should be granted. Section 436 deals with the situation when
bail may be granted in case of a bailable offence. Section 439
deals with the special powers of the High Court or the Court of
B
Sessions regarding grant of bail. Under sections 437 and 439
bail is granted when the accused or the detenu is in jail or
under detention.
9. The provision of anticipatory bail was introduced for the
C
first time in the Code of Criminal Procedure in 1973.
10. Section 438 of the Code of Criminal Procedure, 1973
reads as under:
"438.