# • v. STATE OF PUNJAB

- **Citation:** [1980] 3 S.C.R. 383
- **Court:** Supreme Court of India
- **Decided:** 1980-04-09
- **Bench:** Y. V. CllANDRACHUD, P. N. Bhagwati, N. L. Untwalia, 8 R. S. Pathak, 0. Ciunnappa Reddy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/v-state-of-punjab-8053
- **Pages:** 38

## Headnote

Bail-Anticipatory Bail-Section 438 of the Code of Criminal
Procedure
Code, 1913 (Act 2 of 1974), Scope of-Judicial balancing of personal lib<rly
and the investigarional powers of the Police, explained.
The appellant here.in, Sri Gurbaksh Singh Sibbia was a Minister of Irriga..J
C
tion and Power in the Congress Ministry of the Government of Punjab. Grave
allegations of political corruption were made against him and others whereupon
applications were filed in the High Court of Puujab and Haryaua under section
438 of the Criminal Procedure Code, praying that the appellauts be directed to
be relea1!ed. on bail, in the event of their arrest on the aforesaid charges.
Conw
sidering the importance of the matter, a learned single Judge referred the applications to a Full Bench, which by its judgment dated September, 13, 1977 disD
missed them, after summarising, what according to it is the true legal position,
of s. 438 of the Code.of Criminal Procedure, 1973 (Act 2 of 1974) thus:
(l) The power uuder Section 438, Criminal Procedure Code, is of
an extra-ordinary character and must be exercised sparingly in
exceptional cases only.
(2) Neither Section 438 nor any other provision of the Code authorises the grant of blanket anticipatory bail for offences not yet
committed or with regard to accusations not so far levelled.
( 3) The said power is not unguided or uncanalised but all the
limitations imposed in the preceding Section 437, are implicit
E
therein and must be read into Section 438.
F
( 4) In addition to the limitations mentioned in Section 437,
the
petitioner must make out a special case for the exercise of the
power to grant anticipatory bail.
(5)
(6)
Where a legitimate case for the remand of the offender to the
police custody under Section 167 (2) cau be made out by the
investigating agency or a reasonable claim to secure incriminating material from information likely to be received from the
offender under Section 27 of the Evidence Act can be made
out, the power under Section 438 should not be exercised.
The discretion under Section 438 cannot be exercised
with
regard to offences punishable with death or imprisonment for
life unless the Court at that very stage is satisfied that such a
charge appears to be false or groundless.
G
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384
SUPREME COURT REPORTS
[! 980] 3 S.C.Rj
(7) The larger interest of the public and State
demand that in
serious cases like economic offen~s involving blatant corrup·
tion at the higher rungs of the executive and political power,
the discretion under Section 438 of the Code should not be
exercised; and
(8) Mere general allegations of mala
fides
in the petition are
inadequate. The court must be satisfied on materials
before
it that the allegations of mala fides are
substantial
and
the
accusation appears to be false and groundless.
The argument that the appellants were men of substance and position who
\Vere hardly likely to abscond and would be prepared willingly to face trial was
rejected by the Full Bench with the observation that to accord differential treatment to the appellants on account of their status will amount to negation of the
concept of equality before the law and that it could hardly be contended that
every man of status, who was intended to be charged with serious crimes including the one under section 409 was punishable with life imprisonment, "was
entitled to knock at the door of the Court for anticipatory bail". The possession of high status, according to the Full Bench, is not only an irrelevant consideration for granting anticipatory bail, but is, if anything,
an aggravating
circumstance. Hence the appeals by special leave.
The appellants contended : (a) The power conferred by section 438
to
grant anticipatory bail is "not limited to the contigencies" summarised by the
High Court; (b) The power to grant anticipatory bail ought to be left to the
discretion of the Court concerned, depending on the facts and circumstances of
each particular case; ( c) Since the denial of ba

## Text

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.J
383
GURBAKSH: SINGH SIBBIA ETC .
A
•
v.
STATE OF PUNJAB
April 9, 1980
[Y. V. CllANDRACHUD, C.J., P. N. BHAGWATI, N. L. UNTWALIA,
8
R. S. PATHAK AND 0. CIUNNAPPA REDDY, JJ.]
Bail-Anticipatory Bail-Section 438 of the Code of Criminal
Procedure
Code, 1913 (Act 2 of 1974), Scope of-Judicial balancing of personal lib<rly
and the investigarional powers of the Police, explained.
The appellant here.in, Sri Gurbaksh Singh Sibbia was a Minister of Irriga..J
C
tion and Power in the Congress Ministry of the Government of Punjab. Grave
allegations of political corruption were made against him and others whereupon
applications were filed in the High Court of Puujab and Haryaua under section
438 of the Criminal Procedure Code, praying that the appellauts be directed to
be relea1!ed. on bail, in the event of their arrest on the aforesaid charges.
Conw
sidering the importance of the matter, a learned single Judge referred the applications to a Full Bench, which by its judgment dated September, 13, 1977 disD
missed them, after summarising, what according to it is the true legal position,
of s. 438 of the Code.of Criminal Procedure, 1973 (Act 2 of 1974) thus:
(l) The power uuder Section 438, Criminal Procedure Code, is of
an extra-ordinary character and must be exercised sparingly in
exceptional cases only.
(2) Neither Section 438 nor any other provision of the Code authorises the grant of blanket anticipatory bail for offences not yet
committed or with regard to accusations not so far levelled.
( 3) The said power is not unguided or uncanalised but all the
limitations imposed in the preceding Section 437, are implicit
E
therein and must be read into Section 438.
F
( 4) In addition to the limitations mentioned in Section 437,
the
petitioner must make out a special case for the exercise of the
power to grant anticipatory bail.
(5)
(6)
Where a legitimate case for the remand of the offender to the
police custody under Section 167 (2) cau be made out by the
investigating agency or a reasonable claim to secure incriminating material from information likely to be received from the
offender under Section 27 of the Evidence Act can be made
out, the power under Section 438 should not be exercised.
The discretion under Section 438 cannot be exercised
with
regard to offences punishable with death or imprisonment for
life unless the Court at that very stage is satisfied that such a
charge appears to be false or groundless.
G
H
B
c
D
F
G
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384
SUPREME COURT REPORTS
[! 980] 3 S.C.Rj
(7) The larger interest of the public and State
demand that in
serious cases like economic offen~s involving blatant corrup·
tion at the higher rungs of the executive and political power,
the discretion under Section 438 of the Code should not be
exercised; and
(8) Mere general allegations of mala
fides
in the petition are
inadequate. The court must be satisfied on materials
before
it that the allegations of mala fides are
substantial
and
the
accusation appears to be false and groundless.
The argument that the appellants were men of substance and position who
\Vere hardly likely to abscond and would be prepared willingly to face trial was
rejected by the Full Bench with the observation that to accord differential treatment to the appellants on account of their status will amount to negation of the
concept of equality before the law and that it could hardly be contended that
every man of status, who was intended to be charged with serious crimes including the one under section 409 was punishable with life imprisonment, "was
entitled to knock at the door of the Court for anticipatory bail". The possession of high status, according to the Full Bench, is not only an irrelevant consideration for granting anticipatory bail, but is, if anything,
an aggravating
circumstance. Hence the appeals by special leave.
The appellants contended : (a) The power conferred by section 438
to
grant anticipatory bail is "not limited to the contigencies" summarised by the
High Court; (b) The power to grant anticipatory bail ought to be left to the
discretion of the Court concerned, depending on the facts and circumstances of
each particular case; ( c) Since the denial of bail amounts to deprivation of
personal liberty; Courts should lean against the imposition of unnecessary restrictions on the scope of Section 438, when no such restrictions are ih:iposed by
the legislature in the terms of that section (d) Section 438 is a procedural provision which is concerned with the personal liberty of an individual who has
not been convicted of the offence in respect of which he seeks bail and who must
be presumed to be innocent. The validity of that section must accordingly be
examined by the test of fairness and which is implicit in Article 21. If the
legislature itself were to impose an unreasonable restriction could have been
struck down as being violative of Article 21. Therefore,
while
determining
the scope of section 438, the Court should not impose any unfair or unreasonable limitation on· the individual's right to obtain an order of anticipatory bail.
Imposition of an unfair or unreasonable limitation would be violative of Article
21 irrespective of whether it is imposed by legislation or by judicial decision.
Allowing the appeals in part, the Court,
HELD : 1. The· society has a vital stake in both of these interests namely,
personal liberty and the investigational power of the police, though their relative
importance at any given time depends upon the complexion and restraints of
political conditions. The Court's task is how best to balance these
interests
while determining the scope of section 438 of the Code of Criminal Procedure.
1973. [393 C-D]
2. The High Court and the Court of Session should he left to exercise their
jurisdiction under section 438 by a wise and careful use of their discretion
( ..
C:l1RBAKSH SINGH v. PUNJAB
385
Vlhich by their long training and experience, they are ideally suited to do. The
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ends of justice will be better served by trusting these courts to act objectively
and in consonance with principles governing the grant of bail whlch an: recognised over the years, than by divesting them of their discretion which the legislature has conferred upon them, by laying down inflexible rules of general application. It is customary, almost chronic, to take a statute as one finds it on the
ground that, after all, "the legislature in its ,visdom" has thought it fit to use a
.particular expression.
A convention may u<;efully grow whereby the High Court
B
nnd the Court of Session may be trusted to e:xercise their discretionary powers in
their wisdom, especially when the discretion is entrusted to their care by the
legislature in its \visdom.
If they err, they are liable to be corrected.
[417 B-D]
3. Section 438(1) of the Code lays down a condition which has to be satis~
fie.cl before anticipatory bail can be granted. The applicant must show that he
C
,has 11reason 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
'belier, 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 accusa~
tiOn 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~
D
bailable effence, 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 a·rm oneself
in perpetuity against a possible arrest.
Otherwise, the number of applications
for anticipatory bail will be as large, as, at any rate, the adult populace. Anticipatory bail is a device to secure the individual's liberty; it is neither a pass~
E
port to the commission of crimes nor a shield against any and all kinds of
nccusation, likely or unlikely. [417 E-H, 418 A]
Secondly, if an application for anticipatory bail is made to the High Court
or the Court of Session it must apply its own mind to the question and decide
whether a case has been made out for granting such relief. It cannot leave the
question for the decision of the Magistrate concerned under Section 437 of the
(i'
Code, as and when an occasion arises. Such a course will defeat the very
object of Section 438.
[418 A-Bl
Thirdly, the filing of a First Information Report is not a condition precedent
to the exercise Of the power under Section 438. The imminence of a likely
arrest founded on a reasonable belief can be shown to exist even if an F.l.R. is
not yet filed.
[418 B-C]
G
Fourthly, anticipatory bail can be granted even after an F.l.R. is
filed,
so
long as the applicant ha-s not been arrested.
[418 CJ
Fifthly, the provisions of Section 438 cannot be invoked after the arrest of
the accused. The grant of ''anticipatory bail" to an accused who is
undP:r
arrest involves a contradiction in terms. in so far as the off.,nce or offences for
which he is arrested, are concerned. After arrest. the accused must seek his
remedy under Section 437 or Section 439 o.f the Code, if he wllnts to be relea«ed
on bail in respect of the offence or offences for which he is arrested. [418 C-E]
H
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386
SUPREME COURT REPORTS
[1980] 3 S.C.R.
4. However, a "blanket order" of anticipatory bail should not generally be
passed.
This flows from the very language of the section which requires the
appellant to show that he has "reason to believe" that he may be arrested. A
belief can be said to be founded on reasonable grounds only if there is something tangible to go by on the· basis of which it can be said that the applicant's
apprehension that he may be arrested is genuine. That is why, normally, a
direction should not issue under Section 438(1) to the effect that the applicant
shall be released on bail "whenever arrested for which ever offence whatsoever".
That is what is meant by a 'blanket order' of anticipatory bail, an order which
t1erves 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 concrtte
information can possibly be bad. The rationale of a direction under Section
438(1) is the belief of the applicant founded on reasonable grounds that he
may be arrested for a non-bailable offence. It is unrealistic to expect the applicant to draw up his aplication 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 judgt: of the
reasonableness of his belief, the existence of which is the sine qua non of the
exercise of power conferred by the section.
[418 E-H, 419 A]
Apart from the fact that the very language of the statute compels iliis consD
traction, 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 then1 can be avoided.
E
F
G
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[419 A·C]
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 invei;;tigation
because, regardless of what kind of offence is alleged to have been conunitted
by the applicant and when, an order of bail which comprehends allegedly unlawfu] activity of any description V.'batsoever, will prevent the police. from arresting
the applicant even if the commits, say, a murder in the presence of the public.
Such an order can then become a charter of lawlessness and weapon to stifle
prompt investigation into offences which could not possibly be predicated 'When
the order was passed. Therefore, the court which grants anticipatory bail mu~t
take care to specify the offence or offences in respect of which alone the order
will be effective. The power should not be exercised in a vacuum.
[419 C-El
S. An order of bail can be passed under section 438(1) of the Code without
notice to the Public Prosecutor.
But notice should issue to the public prosecutor or the Government Advocate forthwith and the question of bail should be
re-examined in the light of the respective contentions of
the parties. The
ad-interim order too must conform to the requirements of the section and suitable conditions should be imposed on the applicant even at that stage. [419 E-Fl
6. Equally the operation of an order passed under section 438 ( 1) need not
necessarily be limited in point of time. The Court may, if there are
rea~on~
for doing so, limit the operation of the order to a short period until after the
filing of an F.l.R. in respect of the matter covered by the order. The applicant
may in such cases be directed to obtain an order of bail under Section 437 or
439 of the Code within a reasonably short period after the filing of the F.I.R.
I
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.,
GUI.BAKSH SINGH v. PUNJAB
387
as aforesaid. But this need not be followed as an invariable rule. The normal
A
rule should be. not to limit the operation of, the order in relation to a period of
time. [419 F-H]
7. Bail is basically release from restraint, more particularly release from the
custody of the police. The act of arrest directly affects freedom of movement
of the person arrested by the police, and speaking generally, an order of bail
gives back to the accused that freedom on condition that he will appear to take
his trial.
Personal recognizance
suretyship bonds and
such other modalities
B
are the means by which an assurance is secured from the accused that though
he has been released on bail, he will present himself as the trial of ofience or
offences of which he is charged and for which he. was arrested.
[397 ErG!
'fhe 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
C
arrest and is therefore effective at the very mqment of arrest. Police custocly
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. ht 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
D
be released on bail. Section 46(1) of the Code of Criminal Procedure which
deals \Vith 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 <tction".
A <lire-ction under section 438 is intended to confer conditional immunity from this 'touch' or confinement. [397 G-H, 398 A-BJ
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 polic.e custody. But, society has come to accept and acquiesce in all
that follows upon a police arrest with a certain amount of sang-froid, in so far
as the ordinary rut of criminal investigation is concerned. It
is the normal
day-to-day 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 criminal to needless
harassment.
But
the
crinlt's, the criminals and even the complaints can occasionally pm;sess
extra01dinary features.
When the even fl.ow of life becomes turbid, the police can
be called upon to inquire into charges arising out of political antagonism. The
pO\verful 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 inconveni~nce, har:issment and humiliation. That can even take the form of the paradmg of a respectable person in hand-cuffs, apparently on way to a court of justice. The
foul deed is done lNhen 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 pov.1e~ to grant anticipatory bail was introduced into the Code of 1973.
[398 C-F]
9. Clause (!) of Section 438 is couched in terms, broad and unqualified.
By any known canon of construction, words of width and amplitude ought not
5-289'SC!f80
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388
SUPREME COURT Rlll>O'RTS
[1980] 3 S.C.R.
generally to be cut down so as to read into the language of the statute restraints
and conditions which the legislature itself did not think it proper or necessary
to impose. 'This is especially true when the statutory provision \Vhich falls for
i:e;nsideration is designed to secure a valuable right like the right to personal
freedom and involves the application of a presumption as salutary and deepgrained in our Criminal Jurisprudence as the presumption of innocence.
[401 A-CJ
The legislature conferred a wide djscretion on the High Court and the Court
ot Session to grant anticipatory bail because it evidently felt,
firstly,
that it
would be difficult to enumerate the conditions under which anticipatory bail
should or should not be granted and secondly; because the intention was to
allow the higher courts in the echelon a somewhat free hand in the grant of relief
in the nature Of anticipatory bail. That is why, departing from the terms Of
Sections 437 and 439, Section 438 (1) uses the language that the High Court or
the Court of Session "may, if it thinks fit" direct thn.t the applicant be· released
on bail. SUb-section (2) of Section 438 is a further and clearer manifestation
of the same legislative intent to confer a wide discretionary power to grant
anticipatory bail. It provides that the High Court or the Court of Session,
while issuing a direction for the grant of anticipatory bail, "may include such
conditions in such directions. in the light of the facts of the particular case. as
it may think fi.C' including the conditions which are set out in clauses (i) to (iv)
of sub-section (2). The proof of legisla•tive intent can best be found in the
language which the legislature use.<;.
Ambiguities can undoubtedly be resolved
by resort to extraneous aids but words, as wide and e;xplicit as have1 been used
in Section 438, must be given their full effect, especially when to refuse to do
so will result in undue impairment of the freedom of the indivk1ual and the presumption of innocence. It has to b.e borne in mind that anticipatory bail is sought
when there is- a mere apprehension of arrest on thei accusation that the applicant
has committed a non-bailable offence. A person who has yet to lose his freedom
by being arrested asks for freedom in the event of arrest That is the stage at
which it is imperative to protect his freedom? in so far as one· may, and to give
tull play to the presumption that he is innocent. In fact. the stage at which
anticipatory bail is generally sought brings about its striking dissimilarity with
the situatiori in which a person who is arrested for the commission of a nonbailable offences asks for bail. In the latter situation, adequate data is avaiable
to the Court, or can be called for by it, in the light of which it can grant or .
refuse relief and while granting it, modify it by the imposition of an or any of
the conditions mentioned in SectionJ 437. [404 A-G]
10. The amplitude of judicial discretion which is given to the High Court
a·nd the Court of Sessions, to impose such conditions as they may think fit while
granting anticip~tory bail, should not be cut down, by a process of construction,
by reading irito the statute conditions which are not to be found therein like
those evolved by the High Court. The High Court and the Court of Session to
whom the application for anticipatory bail is made ought to be left free in the
exercise of their judicial discretion to grant bail if they consider it flt so to do
on the particular facts and circumstances of the case and on such coil.ditioris 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 collJSidered to be relevant under
Section 439 of the Code. [405 B-D]
GURBAKSH SINGH V. PUNJAB
389
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 t\\'o cases are
alike on facts and therefore, Conrts have to be allowed a little free play iii tho
joints if the conferment of discretionary power is to be meaningful. There is
no risk involved in entrusting a wide discretion to the Court of Session and the
High Court in granting anticipatory bail because, firstly these are higher courts
manned by experienced persons, secondly their order are not final but are open
to appellate or revisional scrutiny and above all because, discretion has always
to be exercised by courts judicially and not according to whim, caprice or fancy.
On the other band, 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·.
[405 D-G]
Hyman and Anr. v. Rose, 1912 A.C. 623; referred to
11. Judges have to decide cases as they come before them, mindful of the
need to keep passions and prejudices out of their decisions. And it will be
strange if, by employing judicial artifices and techniques, this Court cuts down
the discretion so wisely conferred upon the Courts, by devising a formula which
A
B
c
will confine the power to grant anticipatory bail within a strait-jacket. While
B
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
CVery situation has to be assessed in the context of emerging concerns as and
when it arises. Therefore, even if this Court were to frame a 'Code for the
grant of anticipatory bail', which really is the business of the legislatun~, it can
at best furnish broad guidelines and cannot compel blind adherence. Jn which
E
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 ball "if it thinks fit". The concern
ef the Collrts generally is to preserve their discretion without meaning to abuse
it. It will be strange if the Court exhibits concern to stultify the discretion conF
ferred upon the Courts by law. [406 D-H]
_l.
Discretion, therefore, ought to be permitted to remain in the· domain of discretion, to be execrised objectively and open to correction by the higher courts.
The safety of discretionary power lies in this twin protection which provides a
safeguard against its abuse. [ 407 F-G]
12. It is true that the functions of judiciary and the police are in a s"nse
complementary and not overlapping. An order of anticipatory bail does not
in any way, directly or indirectly, take away from the police their right to
investigate into charges made or to be made against the person released on bail.
In fact, two of the usual conditions incorporated in a direction issued under
section 438(1) are those recommended in Sub-section (2)(i) and (ii)
which
require the applicant to co-operate with the police and to assure that he shall
not tamper with the witnesses during and after the investigation. While· granting relief
under Section 438(1),
appropriate conditions
can be
imposed
uuder Section 438(2), so as to ensure an uninterrupted investigation. One of
G
n
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390
SUPREME COURT REPORTS
[1980] 3 S.C.R.
such conditions can even be
that
in the
event
of the
police
making
out a case
of a likely discovery under Section 27 of the Evidence Act,
the person released on bail shall be liable to be taken in police custody for
facilitating the discovery. Besides, if and when the occasion arises, it may be
possible for the prosecution to claim the be-nefit of Section 27 of the Evidence
Act in regard to a discovery of facts made in pursuance of information supplied
by a peraon released on bail.
[409 D, 41() A-DJ
King
Emperor v. Khwaja
Nazir Ahmed, 71 I.A., 203, State of U.P. v.
Deoman Upadhyaya, [1961] 1 S.C.R. p. 14 @ 26; referred to.
13. In Balchand Jain v. State of Madhya Pradesh, [1977] 2 SCR 52,
this
Court was considering whether the provisions of Section 438 relating to antici~
patory bail stand overruled or repealed by virtue of Rule 184 of the Defence
C
and Internal Security of India Rules, 1971 or whether both the provisions can
by rule of harmonious interpretion, exist side by side. It was in that context
that it was observed that "As section 438 immediately
fo11ows
Section 437
which is the main provision for bail in respect of non-bailable offences, it
is
manifest that the conditions imposed by s. 437 ( 1) are implicitly contained in
Section 438 of the Code"~ These observations regarding the nature
of the
power conferred by section 438 and regarding the question whether the condiD
tions mentioned in Section 437 should be read into section 438 cannot, therefore be treated as the ratio of the decision.
[413 C-D, E]
.£
F
G
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The power conferred by section 438 is of an "extra ordinary" character
only in the sense that it is not ordinarily resorted to like the power conferred
by sections 437 and 439.
[413 E-FJ
Bal Chand Jain v. State of M.P., 11977] 2 S.C.R. 52, distinguished .
14. Since denial of bail amounts to deprivation of personal liberty. the Court
should lean against the imposition of unnecessary restrictions on the scope of
section 438, especially when no
such restrictions have
been imposed by the
Jegislature 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 over·-generous infllsion of constraints and conditions which
are not to be found in Section 438 can make its
provisions constitutionally
"ulnerable since the right to personal freedom cannot be made to depend on
compliance with unreasonable restrictions.
[413 F-H, 414 A]
Maneka Gandhi v. Union of India, [1978] 1 S.C.C. 248; applied.
15. In regard to anticipatory bail, if the proposed accusation appears to stem
not from motives of furthering the ends of justice but from some
ulterior
inotive, the object being to injure and humiliate the applicant by having him
arrested a direction for the release of the applicant on bail in the event of his
arrest would generally, be made.
On the other hand, if it
appears
likely
considering the antecedents of the applicant, that taking advantage of the order
of anticipatory bail he will flee from justice, such an order would not be made.
:Sut the con.verse of these propositions is not necessarily true. That is to say
it cannot be laid down as an inexorable rule that anticipatory bail cannot be
granted unless the proposed accusation appears to be actuated by mala fides;
-~
I
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GURBAKSH SINGH V. PUNJAB
391
and, equally, that anticipatory bail must be granted if there is no fear that the
A
applicant will abscond.
There are several other considerations, too numerous
to enumerate the combined effect of which must
weigh with the court while
granting or rejecting anticipatory bail. The nature and seriousness of the pro--
posed charges, the context of the events likely to lead to the making of the
charges, a reasonable possibility of the applicant's presence not being secured at
the trial, a reasonable apprehension that witnesses will be tampered with and "the
larger interests of the public or the state" are some of the considerations which
B
the court has to keep in mind while deciding an application for anticipatory bail.
[415 G-H, 416 A·C]
State v. Captain Jagjit Singh, [1962] 3 S.C.R. 622, fo!lowed.
CRIMINAL APPELLATE JURISDICTION : Criminal Appeals Nos. 335,
336, 337, 338, 339, 346, 347, 350, 351, 352, 365, 366, 367, 383, c
396, 397, 398,
399, 406, 415, 416, 417, 418, 419, 420,430, 431,
438, 439, 440, 4d7, 448, 449, 463, 473, 474, 477, 498, 506, 508, 512,
511 of 1977, 1, 15, 16, 38, 53, 69, 70 of 1978, 4691499 of 1977, 40,
41, 81, 82, 98, 109, 130, 141, 142, 145, 149, 153 and 154 of 1978.
AND
Special Leave Petitions (Criminal) Nos. 260, 272, 273, 274,
383, 388 & 479 of 1978.
Appeals by Special leave from the Judgment~ and Orders
dated
13-9-77, 13-9-77, 13-9-77, 15-9-77, 13-9-77, 21-9-77, 19-9-77,
23-9-77, 23-9-77, 23-9-77, 26-9-77, 26-9-77, 30-9-77, 7-10-77, 16-9-77
9-9-77, 20-9-77, 5-10-77, 20-10-77, 26-9-77, 20-10-77, 20-10-77,
19-10-77, 24-10-77, 25-10-77, 14-9-77, 24-10-77, 2-11-77, 2-11-77,
3-11-77, 2-9-77, 7-9-77, 2-9-77, 9-11-77, 22-11-77, 23-11-77,
24-11-77,
13-12-77, 11-11-77,
23-11-77, 14-12-77,
13-12-77,
20-12-77,
3-1-78, 4-1-78,
5-1-78,
16-1-78,
18-1-78, 30-1-78,
25-1-78, 18-11-77,
13-12-77, 10-1-78, 13-1-78,
1-2-78, 1-2-78,
8-2-78, 21-12-77, 1-3-78, 3-3-78, 3-3-78, 10-3-78, 8-3-78, 20-3-78,
17-3-78, 15-2-78, 17-2-78, 17-2-78, 24-1-78, 14-3-78, 14-3-78 and
27-3-78 of the Punjab and Haryana High Court in Cr!. Misc. Nos.
3753 M, 3719 M, 3720 M, 3916 M, 3718 M, 3793 M, 3565 M,
3892 M, 3595 M, 3596 M, 4359 M, 3563 M, 3484 M, 4627 M,
3893 M, 3894 M, 3587 M, 4540 M, 4908 M, 3031 M, 4934 M,
4916 M, 4888 M, 4964 M, 4992 M, 3688 M, 4907 M, 5176 M,
5177 M, 5197 M, 3564 M, 3716 M, 3717 M, 5344 M, 5558 M,
50"9 M, 5613 M, 5905 M, 5254 M, 5253 M, 5919 M, 5907 M,
6005 M of 1977, 45 M, 68 M, 102 M, 246 M of 1978, 6114 M of
1977, 462 M, 248 M of 1978, 5240 M, 5892 M of 1977, 19/78,
956/77, 104 M/78, 104 M/178, 605/78, 5995 M/77, 941 M/78, 904
Ml78, 1005 M/78, 1137 M/78, 819 M/78, 1260 M/78, 866 M/78
D
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p
G
H'
392
SUPREME COURT REPORTS
[1980] 3 S.C.R.
A
& 541 M/78, 4897 M/77, 4758 M/77, 364 M/78, 1167/78,
1168 M/78 and 1381 M/78.
M. C. Bhandare, Gobind Das, K. S. Thapar,
Dilip Singh, Mrs.
Sunanda Bhandare, A. N. Karkhanis, Deepak Thapar and Miss Malini
for the Appellants in Cr!. A. No$. 335, 365, 430, 431, 506, 508,
B
499i77, 150, 141, 142, 153, 154 and for the Petitioners in SLPs
272-274 of 1978.
Frank Anthony, V. C. Mahajan, 0. P. Sharma and R. C. Bhatia
for the Appellants in Cr!. A. Nos. 336, 337, 338, 350, 396, 397-399,
473, 474/77 and 1, 15, 16, 17, 69, 70, 81, 82, 98 and 149 and 109
C
of 1978.
D
E
Harjinder Singh for the Appellant in Cr!. A. 339 of 1977.
B. S. Bindra, S. M. Ashri and Mrs. Lakshmi Arvind for the Appellants in Crl. AJ;. Nos. 348, 366, 415, 420, 477, 511, 512, 469/77
and 145 of 1978.
P. R. Mridul, H. K. Puri, Aruneshwar Prasad and Vivek Sethi for
the Appellant in Cr!. A No. 346 of 1977.
L. N. Sinha, R. P. Singh, L. R. Singh, Suman Kapoor, Sukumar
Sahu and M. C. Bhandare, P. P. Singh and R. K. Jain for tho Appellants in Cr!. A. Nos. 351, 352, 406, 438-40, 463/77.
S. K. Jain for the Appellant in Crl. A. No. 53/78.
V. M. Tarkunde, M. M. L. Srivastava, R. Satish and E. C. Agrawa/a for the Appellant in Crl. A. Nos. 367 /77 and SLP 383/78.
V. C. Mahajan, Harbhagwan Singh, S. K. Mehta, K. R. Nagaraja
and P. N. Purl for the Appellant in Cr!. A. Nos. 383/78 and 498177.
K. K. Mohan for the Petitioner in SLP 260/78.
A. K. Sen and Rathin Dass for the Appellant in Crl. A. Nos. 40,
41/78.
M. M. L. Srivastava for the Petitioner in SLP 388/78.
G
L. M. Singhvi and N. S. Das Behl for the Appellants in Cd. A. No.
38/78 and for the Petitioner in SLP 479178.
Soli. J. Sorabjee, Addi. Sol. Genl. Bishamber Lal Khanna, liardev
Singh, R. s. Sodhi and B. B. Sinf!h for the Appellants in Cr!. As. Nos.
477-449/77 and respondents in Cr!. A. Nos. 335-339, 347, 350, 352 ••
H
366, 367, 388, 396-398, 406, 415-420, 438-440, 463, 473, 474, 477,
498, 511/77, 1, 15-17/78, 469, 510/77, 109/78 and for the Petitioners in SLP Nos. 388/78, Cr!. A. No. 98 /78 & SLP 260/78.
f
GURBAKSF! SINGH v. PUNJAB (Chandrachud, C.J.)
393
Sol1. J. Sorabjee Add!. Sol. Genl., Thakur Naubat Singh Adv.
Genl. Haryana, S. N. Anand and R. N. Sachthey for the Respondent~
in Cr!. A. Nos. 365, 430, & 431/77, 508, 499/78 and 38, 141 and
142/78.
M. M. Kshatriya and G. S. Chat1erjee for Respondents in Cr!. A.
Nos. 40 and 41 of 1978.
M. M. Kshatriya and G. S. Chatterjee for Respondents in Cr!. A.
346/77.
J. K. Gupta, B. R. Agarwala and Janendra Lal for the ViceA
B
Chancellor, Pwijab University in Cr!. A. No. 346 /77.
c
The Judgment of the Court was delivered by
CHANDRACHUD, C.J.-These appeals by Special Leave involve a
question of great public importance bearing, at once,
on personal
liberty and the investigational powers of the police. The society.. has
a vital stake in both of these interests, though their relative importance
at any given time depeni:ls upon the complexion and restraints of political conditions.
Our task in these appeals is how best to balance
these interests while detennining the scope of Section 438 of the Code
of Criminal Procedure, 1973 (Act No. 2 of 1974).
Section 438 provides for the issuance of direction for the grant
of bail to a person who apprehends arrest. It reads thus :
"438. (1) When any person has reason to believe that
he may be arrested on an accusation of having connnitted a
non-bailable offence, he may apply to the High Court or the
Court of Session liar a direction under this section; and that
Court may, if it thinks fit, direct that in the event of such
arrest, he shall be released on bail.
(2) When the High Court or the Court of Session makes
a direction under sub-section (1 ) , it maY include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including-
( i) a condition that the person shall make himself available for interrogation by a police officer as and when
required;
D
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G
(ii) a condition that the person ihall not, directly or inH
directly, make any inducement, threat or promise to
any person acquainted with the facts of the case so
394
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SUPREME COURT REPORTS
[1980) 3 S.C.R.
as to dissuade him from disclosing such facts to the
Court or to any police officer;
(iii) a condition that the person shall not leave India without the previous permission of the Court;
B
(iv) such other condition as may be imposed under subsection (3) of section 437, as if the bail were granted
under that section.
(3) If such person is thereafter arrested without warrant
by an officer in charge of a police station on such accusation,
C
and is prepared either at the time of arrest or at any time
while in the custody of such officer to give bail, he shall be
released on bail; and if a Magistrate taking cognizance of
such offence decides that a warrant should issue in the first
instance against that person, he shall) issue a bailable warrant
in conformity with the direction of the Court under subD
section ( 1) . "
E
G
B
Criminal Appeal No. 335 of 1975 which is the first of the many
appeals before us, arises out of a judgment dated September 13, 1977
of a Full Bench of the High Court of Punjab and Haryana.
The
appellant herein, Shri Gurbaksh Singh Sibbia, was a Min:,.:er of Irrigation and Power in the Congress Ministry of the Government of
Punjab. Grave allegations of political corruption were made against
him and others whereupon, applications were filed in the High Court
of Punjab and Haryana under Section 438, praying that the appellants
be directed to be released on bail, in the event of their arrest on the
aforesaid charges. Considering the importance of the matter, a learned
Single Judge referred the applications to a Full Bench, which by its
judgment dated September 13, 1977 dismissed them.
The Code of Criminal Procedure, 1898 did not contain any specific
provision corresponding to the present Section 438.
Under. the old
Code, there was a sharp difference of opinion amongst the various
High Courts on the question as to whether courts had the inherent
power to pass an order of bail_in anticipation of arrest, the preponderance of view being that it did not bave such power. The need for
extensive amendments to the Code of Criminal Procedure was felt for
a long time and various suggestions were made in different quarters in
order to make the Code more effective and comprehensive_ The Law
Commission of India, in its 4lst Report dated September 24, 1969
pointed out the necessity of introducing a provision in the Code en-
--i-
GURBAKSH SINGH v. PUNJAB (Chandrachud, C.J.)
395
abling the High Court and the Court of Session to grant "anticipatory
bail". It observed in paragraph 39.9 of its report (Volume I) :
"39 .9. The suggestion for directing the release of a person on bail prior to his arrest (commonly known as "anticipatory bail") was carefully 'considered by us. Though there
is a conflict of judicial opinion about the power of a Court
to grant anticipatory bail, the majority view is that there is
no such power under the existing provisions of the Code.
The necessity for granting anticipatory bail arises mainly
because sometimes influential persons try to implicate their
rivals in false cases for the purpose of disgracing them or for
other purposes by getting them detained in jail for some days,
In recent times, with the accentuation of political rivalry, this
tendency is showing signs of steady increase.
Apart from
false cases, where 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 seems no
justification to require him first to submit to custody, remain
in prison for some days and then apply for bail.
We recommend the acceptance of this suggestion.
We
are further of the view that this special power should be
conferred only oo the High Court and the Court of Session,
and that the order should take effect at the time of arrest or
thereafter.
In order to settle the details of this suggestion, the
following draft of a. new section is placed for consideration :
"497 A.