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Principle of grant of Anticipatory bail in non-bailable cases in India.

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;

iii. The possibility of the applicant to flee from justice;

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.

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 implicated with the help of sections 34 and 149 of the Indian 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;

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 unjustified detention of the accused;

ix. The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;

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 normal course of events, the accused is entitled to an order of bail.

 

 

 

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2271 2010. (Arising out of SLP (Crl.) No.7615 of 2009) Siddharam Satlingappa Mhetre …..Appellant Versus

State of Maharashtra and Others …..Respondents JUDGMENT

Dalveer Bhandari, J.

1. Leave granted.

2. This appeal involves issues of great public importance pertaining to the importance of individual’s personal liberty and 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 liberty and the interest of the society. The law of bails dovetails
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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 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:

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 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 Siddharam Mhetre and opposed to the BJP candidate.
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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 Ishwarappa Kore, Bhimashankar Ishwarappa 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 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, 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 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
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Saheb? They asked them to go away and shouted Mhetre Saheb Ki Jai."

6. Baburao Patil and Prakash Patil from the aforementioned group fired from their pistols in order to kill Sidramappa Patil and the other workers of the BJP. Bhima 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 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 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 incident of instigation.

8. The law relating to bail is contained in sections 436 to 450 of chapter XXXIII of the Code of Criminal Procedure, 1973.
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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 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 first time in the Code of Criminal Procedure in 1973.

10. Section 438 of the Code of Criminal Procedure, 1973 reads as under:

"438. Direction for grant of bail to person apprehending arrest.- (1) Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter alia, the following factors, namely:-

(i) the nature and gravity of the accusation; (ii) the antecedents of the applicant including the fact as to whether he has previously

undergone imprisonment on conviction by a

Court in respect of any cognizable offence; (iii) the possibility of the applicant to flee from justice; and

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(iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested,

either reject the application forthwith or issue an interim order for the grant of anticipatory bail: Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub-section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in-charge of a police station to arrest, without warrant, the applicant on the basis of the accusation apprehended in such application. (1-A) Where the Court grants an interim order under sub-section (1), it shall forthwith cause a notice being not less than seven days notice, together with a copy of such order to be served on the Public Prosecutor and the Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court.

(1-B) The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice.

(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 thinks fit, including -

(i) a condition that the person shall make himself available for interrogation by a

police officer as and when required;

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(ii) a condition that the person shall not, directly or indirectly,- make any inducement, threat or promise to any

person acquainted with the facts of the case so 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;

(iv) such other condition as may be imposed under sub-section (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, 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 sub-section (1)."

Why was the provision of anticipatory bail introduced? – Historical perspective

11. The Code of Criminal Procedure, 1898 did not contain any specific provision of anticipatory bail. Under the old Code, there was a sharp difference of opinion amongst the various High Courts on the question as to whether the courts had an inherent power to pass an order of bail in anticipation of arrest, the preponderance of view being that it did not have such power.
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12. The Law Commission of India, in its 41st Report dated September 24, 1969 pointed out the necessity of introducing a provision in the Code of Criminal Procedure enabling the High Court and the Court of Sessions to grant "anticipatory bail". It observed in para 39.9 of its report (Volume I) and the same is set out as under:

"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."

The Law commission recommended acceptance of the suggestion.

13. The Law Commission in para 31 of its 48th Report (July, 1972) made the following comments on the aforesaid clause:
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"The Bill introduces a provision for the grant of anticipatory bail. This is substantially in accordance with the recommendation made by the previous Commission. We agree that this would be a useful addition, though we must add that it is in very exceptional cases that such a power should be exercised.

We are further of the view that in order to ensure that the provision is not put to abuse at the instance of unscrupulous petitioners, the final order should be made only after notice to the Public Prosecutor. The initial order should only be an interim one. Further, the relevant section should make it clear that the direction can be issued only for reasons to be recorded, and if the court is satisfied that such a direction is necessary in the interests of justice. It will also be convenient to provide that notice of the interim order as well as of the final orders will be given to the Superintendent of Police forthwith."

14. Police custody is an inevitable concomitant of arrest for non-bailable offences. The concept of anticipatory bail is that a person who apprehends his 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.

Scope and ambit of Section 438 Cr.P.C.

15. It is apparent from the Statement of Objects and Reasons for introducing section 438 in the Code of Criminal Procedure, 1973 that it was felt imperative to evolve a device by which an alleged accused is not compelled to face ignominy and disgrace
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at the instance of influential people who try to implicate their rivals in false cases.

16. The Code of Criminal Procedure, 1898 did not contain any specific provision corresponding to the present section 438 Cr.P.C. The only two clear provisions of law by which bail could be granted were sections 437 and 439 of the Code. Section 438 was incorporated in the Code of Criminal Procedure, 1973 for the first time.

17. It is clear from the Statement of Objects and Reasons that the purpose of incorporating Section 438 in the Cr.P.C. was to recognize the importance of personal liberty and freedom in a free and democratic country. When we carefully analyze this section, 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 age-old principle that an individual is presumed to be innocent till he is found guilty by the court.

18. The High Court in the impugned judgment has declined to grant anticipatory bail to the appellant and aggrieved by the said
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order, the appellant has approached this Court by filing this appeal.

19. Mr. Shanti Bhushan, learned senior counsel appearing for the appellant submitted that the High Court has gravely erred in declining the anticipatory bail to the appellant. He submitted that section 438 Cr.P.C. was incorporated because sometime influential people 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. He pointed out that in recent times, with the accentuation of political rivalry, this tendency is showing signs of steady increase.

20. Mr. Bhushan submitted that the appellant has been implicated in a false case and apart from that he has already joined the investigation and he is not likely to abscond, or otherwise misuse the liberty while on bail, therefore, there was no justification to decline anticipatory bail to the appellant.

21. Mr. Bhushan also submitted that the FIR in this case refers to an incident which had taken place on the instigation of the appellant about eight days ago. According to him, proper analysis of the averments in the FIR leads to irresistible
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conclusion that the entire prosecution story seems to be a cock and bull story and no reliance can be placed on such a concocted version.

22. Mr. Bhushan contended that the personal liberty is the most important fundamental right guaranteed by the Constitution. He also submitted that it is the fundamental principle of criminal jurisprudence that every individual is presumed to be innocent till he or she is found guilty. He further submitted that on proper analysis of section 438 Cr.P.C. the legislative wisdom becomes quite evident that the legislature wanted to preserve and protect personal liberty and give impetus to the age-old principle that every person is presumed to be innocent till he is found guilty by the court.

23. Mr. Bhushan also submitted that an order of anticipatory bail does not in any way, directly or indirectly, take away from the police their power and right to fully investigate into charges made against the appellant. He further submitted that when the case is under investigation, the usual anxiety of the investigating agency is to ensure that the alleged accused should fully cooperate with them and should be available as and when they require him. In the instant case, when the appellant has already
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joined the investigation and is fully cooperating with the investigating agency then it is difficult to comprehend why the respondent is insistent for custodial interrogation of the appellant? According to the appellant, in the instant case, the investigating agency should not have a slightest doubt that the appellant would not be available to the investigating agency for further investigation particularly when he has already joined investigation and is fully cooperating with the investigating agency.

24. Mr. Bhushan also submitted that according to the General Clauses Act, 1897 the court which grants the bail also has the power to cancel it. The grant of bail is an interim order. The court can always review its decision according to the subsequent facts, circumstances and new material. Mr. Bhushan also submitted that the exercise of grant, refusal and cancellation of bail can be undertaken by the court either at the instance of the accused or a public prosecutor or a complainant on finding fresh material and new circumstances at any point of time. Even the appellant’s reluctance in not fully cooperating with the investigation could be a ground for cancellation of bail.
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25. Mr. Bhushan submitted that a plain reading of the section 438 Cr.P.C. clearly reveals that the legislature has not placed any fetters on the court. In other words, the legislature has not circumscribed court’s discretion in any manner while granting anticipatory bail, therefore, the court should not limit the order only for a specified period till the charge-sheet is filed and thereafter compel the accused to surrender and ask for regular bail under section 439 Cr.P.C., meaning thereby the legislature has not envisaged that the life of the anticipatory bail would only last till the charge-sheet is filed. Mr. Bhushan submitted that when no embargo has been placed by the legislature then this court in some of its orders was not justified in placing this embargo.

26. Mr. Bhushan submitted that the discretion which has been granted by the legislature cannot and should not be curtailed by interpreting the provisions contrary to the legislative intention. The courts’ discretion in grant or refusal of the anticipatory bail cannot be diluted by interpreting the provisions against the legislative intention. He submitted that the life is never static and every situation has to be assessed and evaluated in the context of emerging concerns as and when it arises. It is
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difficult to visualize or anticipate all kinds of problems and situations which may arise in future.

Law has been settled by an authoritative pronouncement of the Supreme Court

27. The Constitution Bench of this Court in Gurbaksh Singh Sibbia and Others v. State of Punjab(1980) 2 SCC 565 had an occasion to comprehensively deal with the scope and ambit of the concept of anticipatory bail. Section 438 Cr.P.C. is an extraordinary provision where the accused who apprehends his/her arrest on accusation of having committed a non-bailable offence can be granted bail in anticipation of arrest. The Constitution Bench’s relevant observations are set out as under: "……..A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hall mark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail".

28. Mr. Bhushan referred to a Constitution Bench judgment in Sibbia’s case (supra) to strengthen his argument that no such
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embargo has been placed by the said judgment of the Constitution Bench. He placed heavy reliance on para 15 of Sibbia’s case (supra), which reads as under: "15. Judges have to decide cases as they come before them, mindful of the need to keep passions and prejudices out of their decisions. And it will be strange if, by employing judicial artifices and techniques, we cut down the discretion so wisely conferred upon the courts, by devising a formula which will confine the power to grant anticipatory bail within a strait-jacket. While laying down cast-iron rules in a matter like granting anticipatory bail, as the High Court has done, it is apt to be overlooked that even judges can have but an imperfect awareness of the needs of new situations. Life is never static and every situation has to be assessed in the context of emerging concerns as and when it arises. Therefore, even if we were to frame a `Code for the grant of anticipatory bail’, which really is the business of the legislature, it can at best furnish broad guide-lines and cannot compel blind adherence. In which case to grant bail and in which to refuse it is, in the very nature of things, a matter of discretion. But apart from the fact that the question is inherently of a kind which calls for the use of discretion from case to case, the legislature has, in terms express, relegated the decision of that question to the discretion of the court, by providing that it may grant bail "if it thinks fit". The concern of the courts generally is to preserve their discretion without meaning to abuse it. It will be strange if we exhibit concern to stultify the discretion conferred upon the courts by law."

29. Mr. Bhushan submitted that the Constitution Bench in Sibbia’s case (supra) also mentioned that "we see no valid reason for rewriting Section 438 with a view, not to expanding
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the scope and ambit of the discretion conferred on the High Court and the Court of Session but, for the purpose of limiting it. Accordingly, we are unable to endorse the view of the High Court that anticipatory bail cannot be granted in respect of offences like criminal breach of trust for the mere reason that the punishment provided therefor is imprisonment for life. Circumstances may broadly justify the grant of bail in such cases too, though of course, the court is free to refuse anticipatory bail in any case if there is material before it justifying such refusal".

30. Mr. Bhushan submitted that the court’s orders in some cases that anticipatory bail is granted till the charge-sheet is filed and thereafter the accused has to surrender and seek bail application under section 439 Cr.P.C. is neither envisaged by the provisions of the Act nor is in consonance with the law declared by a Constitution Bench in Sibbia’s case (supra) nor it is in conformity with the fundamental principles of criminal jurisprudence that accused is considered to be innocent till he is found guilty nor in consonance with the provisions of the Constitution where individual’s liberty in a democratic society is considered sacrosanct.

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31. Mr. Mahesh Jethmalani, learned senior counsel appearing for respondent no. 2, submitted that looking to the facts and circumstances of this case, the High Court was justified in declining the anticipatory bail to the appellant. He submitted that the anticipatory bail ought to be granted in rarest of rare cases where the nature of offence is not very serious. He placed reliance on the case ofPokar Ram v. State of Rajasthan and Others (1985) 2 SCC 597 and submitted that in murder cases custodial interrogation is of paramount importance particularly when no eye witness account is available.

32. Mr. Jethmalani fairly submitted that the practice of passing orders of anticipatory bail operative for a few days and directing the accused to surrender before the Magistrate and apply for regular bail are contrary to the law laid down in Sibbia’s case (supra). The decisions of this Court inSalauddin Abdulsamad Shaikh v. State of Maharashtra (1996) 1 SCC 667, K. L. Verma v. State and Another (1998) 9 SCC 348, Adri Dharan Das v. State of West Bengal (2005) 4 SCC 303 and Sunita Devi v. State of Bihar and Another (2005) 1 SCC 608 are in conflict with the above decision of the Constitution Bench in Sibbia’s case (supra). He submitted that all these orders which
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are contrary to the clear legislative intention of law laid down in Sibbia’s case (supra) are per incuriam. He also submitted that in case the conflict between the two views is irreconcilable, the court is bound to follow the judgment of the Constitution Bench over the subsequent decisions of Benches of lesser strength.

33. He placed reliance on N. Meera Rani v. Government of Tamil Nadu and Another (1989) 4 SCC 418 wherein it was perceived that there was a clear conflict between the judgment of the Constitution Bench and subsequent decisions of Benches of lesser strength. The Court ruled that the dictum in the judgment of the Constitution Bench has to be preferred over the subsequent decisions of the Bench of lesser strength. The Court observed thus:

"…….All subsequent decisions which are cited have to be read in the light of the Constitution Bench decision since they are decisions by Benches comprising of lesser number of judges. It is obvious that none of these subsequent decisions could have intended taking a view contrary to that of the Constitution bench in Rameshwar Shaw’s case (1964) 4 SCR 921"

34. He placed reliance on another judgment of this Court in Vijayalaxmi Cashew Company and Others v. Dy.
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Commercial Tax Officer and Another (1996) 1 SCC 468. This Court held as under:

"……..It is not possible to uphold the contention that perception of the Supreme Court, as will appear from the later judgments, has changed in this regard. A judgment of a Five Judge Bench, which has not been doubted by any later judgment of the Supreme Court cannot be treated as overruled by implication."

35. He also placed reliance on Union of India and Others v. K. S. Subramanian (1976) 3 SCC 677 andState of U.P. v. Ram Chandra Trivedi (1976) 4 SCC 52 and submitted that in case of conflict, the High Court has to prefer the decision of a larger Bench to that of a smaller Bench.

36. Mr. Jethmalani submitted that not only the decision in Sibbia’s case (supra) must be followed on account of the larger strength of the Bench that delivered it but the subsequent decisions must be held to be per incuriam and hence not binding since they have not taken into account the ratio of the judgment of the Constitution Bench.

37. He further submitted that as per the doctrine of `per incuriam’, any judgment which has been passed in ignorance of or without considering a statutory provision or a binding precedent is not good law and the same ought to be ignored. A
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perusal of the judgments in Salauddin Abdulsamad Shaikh v. State of Maharashtra, K. L. Verma v.State and Another, Adri Dharan Das v. State of West Bengal and Sunita Devi v. State of Bihar and Another (supra) indicates that none of these judgments have considered para 42 of Sibbia’s case (supra) in proper perspective. According to Mr. Jethmalani, all subsequent decisions which have been cited above have to be read in the light of the Constitution Bench’s decision in Sibbia’s case (supra) since they are decisions of Benches comprised of lesser number of judges. According to him, none of these subsequent decisions could be intended taking a view contrary to that of the Constitution Bench in Sibbia’s case (supra).

38. Thus, the law laid down in para 42 by the Constitution Bench that the normal rule is not to limit operation of the order of anticipatory bail, was not taken into account by the courts passing the subsequent judgments. The observations made by the courts in the subsequent judgments have been made in ignorance of and without considering the law laid down in para 42 which was binding on them. In these circumstances, the observations made in the subsequent judgments to the effect that anticipatory bail should be for a limited period of time, must
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be construed to be per incuriam and the decision of the Constitution Bench preferred.

39. He further submitted that the said issue came up for consideration before the Madras High Court reported in Palanikumar and Another v. State 2007 (4) CTC 1 wherein after discussing all the judgments of this court on the issue, the court held that the subsequent judgments were in conflict with the decision of the Constitution Bench in Sibbia’s case (supra) and in accordance with the law of precedents, the judgment of the Constitution Bench is biding on all courts and the ratio of that judgment has to be applicable for all judgments decided by the Benches of same or smaller combinations. In the said judgment of Sibbia’s case (supra) it was directed that the anticipatory bail should not be limited in period of time.

40. We have heard the learned counsel for the parties at great length and perused the written submissions filed by the learned counsel for the parties.

Relevance and importance of personal liberty

41. All human beings are born with some unalienable rights like life, liberty and pursuit of happiness. The importance of
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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.

42. Life bereft of liberty would be 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.

43. Origin of "liberty"’ can be traced in the ancient Greek civilization. The Greeks distinguished between the liberty of the group and the liberty of the individual. In 431 B.C., an Athenian statesman described that the concept of liberty was the outcome of two notions, firstly, protection of group from attack and secondly, the ambition of the group to realize itself as fully as possible through the self-realization of the individual by way of human reason. Greeks assigned the duty of protecting their liberties to the State. According to Aristotle, as the state was a means to fulfil certain fundamental needs of human nature and was a means for development of individuals’ personality in association of fellow citizens so it was natural and necessary to man. Plato found his "republic" as the best source for the achievement of the self-realization of the people.
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44. Chambers’ Twentieth Century Dictionary defines "liberty" as "Freedom to do as one pleases, the unrestrained employment of natural rights, power of free chance, privileges, exemption, relaxation of restraint, the bounds within which certain privileges are enjoyed, freedom of speech and action beyond ordinary civility".

45. It is very difficult to define the "liberty". It has many facets and meanings. The philosophers and moralists have praised freedom and liberty but this term is difficult to define because it does not resist any interpretation. 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, firstly, harmonious balance of personality, secondly, the absence of restraint upon the exercise of that affirmation and thirdly, organization of opportunities for the exercise of a continuous initiative.

46. "Liberty" may be defined as a power of acting according to the determinations of the will. According to Harold Laski, liberty was essentially an absence of restraints and John Stuard Mill
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viewed that "all restraint", qua restraint is an evil". In the words of Jonathon Edwards, the meaning of "liberty" and freedom is: "Power, opportunity or advantage that any one has to do as he pleases, or, in other words, his being free from hindrance or impediment in the way of doing, or conducting in any respect, as he wills."

47. It can be found that "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 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 to the desire of others.

48. As John E.E.D. in his monograph Action on "Essays on Freedom and Power" wrote that Liberty is one of the most essential requirements of the modern man. It is said to be the delicate fruit of a mature civilization.

49. A distinguished former Attorney General for India, M.C. Setalvad in his treatise "War and Civil Liberties" observed that
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the French Convention stipulates common happiness as the end of the society, whereas Bentham postulates the greatest happiness of the greatest number as the end of law. Article 19 of the Indian Constitution averts to freedom and it enumerates certain rights regarding individual freedom. These rights are vital and most important freedoms which lie at the very root of liberty.

50. He further observed that the concept of civil liberty is essentially rooted in the philosophy of individualism. According to this doctrine, the highest development of the individual and the enrichment of his personality are the true function and end of the state. It is only when the individual has reached the highest state of perfection and evolved what is best in him that society and the state can reach their goal of perfection. In brief, according to this doctrine, the state exists mainly, if not solely, for the purpose of affording the individual freedom and assistance for the attainment of his growth and perfection. The state exists for the benefit of the individual.

51. Mr. Setalvad in the same treatise further observed that it is also true that the individual cannot attain the highest in him
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unless he is in possession of certain essential liberties which leave him free as it were to breathe and expand. According to Justice Holmes, these liberties are the indispensable conditions of a free society. The justification of the existence of such a state can only be the advancement of the interests of the individuals who compose it and who are its members. Therefore, 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, of the interests of the state and the individual, is the fundamental basis of the modern Democratic National State. And, 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 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 impose certain restrictions on the activities of the individuals.

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52. Harold J. Laski in his monumental work in "Liberty in the Modern State" observed that liberty always demands a limitation on political authority. Power as such when uncontrolled is always the natural enemy of freedom.

53. Roscoe Pound, an eminent and one of the greatest American Law Professors aptly observed in his book "The Development of Constitutional Guarantee of Liberty" that whatever, `liberty’ may mean today, the liberty is guaranteed by our bills of rights, "is a reservation to the individual of certain fundamental reasonable expectations involved in life in civilized society and a freedom from arbitrary and unreasonable exercise of the power and authority of those who are designated or chosen in a politically organized society to adjust that society to individuals."

54. Blackstone in "Commentaries on the Laws of England", Vol.I, p.134 aptly observed that "Personal liberty consists in the power of locomotion, of changing situation or moving one’s person to whatsoever place one’s own inclination may direct, without imprisonment or restraint unless by due process of law".
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55. According to Dicey, a distinguished English author of the Constitutional Law in his treatise on Constitutional Law observed that, "Personal liberty, as understood in England, means in substance a person’s right not to be subjected to imprisonment, arrest, or other physical coercion in any manner that does not admit of legal justification." [Dicey on Constitutional Law, 9th Edn., pp.207-08]. According to him, it is the negative right of not being subjected to any form of physical restraint or coercion that constitutes the essence of personal liberty and not mere freedom to move to any part of the Indian territory. In ordinary language personal liberty means liberty relating to or concerning the person or body of the individual, and personal liberty in this sense is the antithesis of physical restraint or coercion.

56. Eminent English Judge Lord Alfred Denning observed: "By personal freedom I mean freedom of every law abiding citizen to think what he will, to say what he will, and to go where he will on his lawful occasion without hindrance from any person…. It must be matched, of course, with social security by which I mean the peace and good order of the community in which we live."

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57. Eminent former Judge of this Court, Justice H.R. Khanna in a speech as published in 2 IJIL, Vol.18 (1978), p.133 observed that "liberty postulates the creation of a climate wherein there is no suppression of the human spirits, wherein, there is no denial of the opportunity for the full growth of human personality, wherein head is held high and there is no servility of the human mind or enslavement of the human body". Right to life and personal liberty under the Constitution

58. We deem it appropriate to deal with the concept of personal liberty under the Indian and other Constitutions.

59. 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 the framers of the Constitution. It is to preserve and 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.

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60. The framers of the Indian Constitution followed the American model in adopting and incorporating the Fundamental Rights for the people of India. American Constitution provides that no person shall be deprived of his life, liberty, or property without due process of law. The due process clause not only protects the property but also life and liberty, similarly Article 21 of the Indian Constitution asserts the importance of Article 21. The said Article reads as under:-

"no person shall be deprived for his life or personal liberty except according to procedure established by law"

the right secured by Article 21 is available to every citizen or non-citizen, according to this article, two rights are secured.

1. Right to life

2 Right to personal liberty.

61. Life and personal liberty are the most prized possessions of an individual. The inner urge for freedom is a natural phenomenon of every human being. Respect for life, liberty and property is not merely a norm or a policy of the State but an essential requirement of any civilized society.

62. This court defined the term "personal liberty" immediately after the Constitution came in force in India in the case of A. K.
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Gopalan v. The State of Madras, AIR 1950 SC 27. The expression `personal liberty’ has wider as well narrow meaning. In the wider sense it includes not only immunity from arrest and detention but also freedom of speech, association etc. In the narrow sense, it means immunity from arrest and detention. The juristic conception of `personal liberty’, when used the latter sense, is that it consists freedom of movement and locomotion.

63. Mukherjea, J. in the said judgment observed that `Personal Liberty’ means liberty relating to or concerning the person or body of the individual and it is, in this sense, antithesis of physical restraint or coercion. `Personal Liberty’ means a personal right not to be subjected to imprisonment, arrest or other physical coercion in any manner that does not admit of legal justification. This negative right constitutes the essence of personal liberty. Patanjali Shastri, J. however, said that whatever may be the generally accepted connotation of the expression `personal liberty’, it was used in Article 21 in a sense which excludes the freedom dealt with in Article 19. Thus, the Court gave a narrow interpretation to `personal liberty’. This court excluded certain varieties of rights, as separately mentioned in
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Article 19, from the purview of `personal liberty’ guaranteed by Art. 21.

64. In Kharak Singh v. State of U.P. and Others AIR 1963 SC 1295, Subba Rao, J. defined `personal liberty, as a right of an individual to be free from restrictions or encroachment on his person whether these are directly imposed or indirectly brought about by calculated measure. The court held that `personal liberty’ in Article 21 includes all varieties of freedoms except those included in Article 19.

65. In Maneka Gandhi v. Union of India and Another (1978) 1 SCC 248, this court expanded the scope of the expression `personal liberty’ as used in Article 21 of the Constitution of India. The court rejected the argument that the expression `personal liberty’ must be so interpreted as to avoid overlapping between Article 21 and Article 19(1). It was observed: "The expression `personal liberty’ in Article 21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of a man and some of them have been raised to the status of distinct fundamental rights and given additional protection under Article 19." So, the phrase `personal liberty’ is
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very wide and includes all possible rights which go to constitute personal liberty, including those which are mentioned in Article

19.

66. Right to life is one of the basic human right and not even the State has the authority to violate that right. [State of A.P. v. Challa Ramakrishna Reddy and Others (2000) 5 SCC 712].

67. Article 21 is a declaration of deep faith and belief in human rights. In this pattern of guarantee woven in Chapter III of this Constitution, personal liberty of man is at root of Article 21 and each expression used in this Article 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. [Kartar Singh v. State of Punjab and Others (1994) 3 SCC 569].

68. While examining the ambit, scope and content of the expression "personal liberty" in the said case, it was held that the term is used in this Article as a compendious term to include within itself all varieties of rights which goes to make up the "personal liberties" or man other than those dealt within several clauses of Article 19(1). While Article 19(1) deals with particular
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species or attributes of that freedom, "personal liberty" in Article 21 takes on and comprises the residue.

69. The early approach to Article 21 which guarantees right to life and personal liberty was circumscribed by literal interpretation in A.K. Gopalan (supra). But in course of time, the scope of this application of the Article against arbitrary encroachment by the executives has been expanded by liberal interpretation of the components of the Article in tune with the relevant 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 would include all these aspects of life which would go to make a man’s life meaningful and worth living, such as his tradition, culture and heritage. [Francis Coralie Mullin v. Administrator, Union Territory of Delhi and Others (1981) 1 SCC 608]

70. Article 21 has received very liberal interpretation by this court. It was held: "The right to live with human dignity and same does not connote continued drudging. It takes within its fold some process of civilization which makes life worth living
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and expanded concept of life would mean the tradition, culture, and heritage of the person concerned." [P. Rathinam/Nagbhusan Patnaik v. Union of India and Another (1994) 3 SCC 394.]

71. 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, 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. While invoking the provisions of Article 21, and by referring to the oft-quoted statement of Joseph Addision, "Better to die ten thousand deaths than wound my honour", the Apex court in Khedat Mazdoor Chetana Sangath v. State of M.P. and Others(1994) 6 SCC 260 posed to itself a question "If dignity or honour vanishes what remains of life"? This is the significance of the Right to Life and Personal Liberty guaranteed under the Constitution of India in its third part.

72. This court in Central Inland Water Transport Corporation Ltd. and Another v. Brojo Nath Ganguly and
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Another (1986) 3 SCC 156 observed that the law must respond and be responsive to the felt and discernible compulsions of circumstances that would be equitable, fair and justice, and unless there is anything to the contrary in the statute, Court must take cognizance of that fact and act accordingly.

73. This court remarked that an undertrial prisoner should not be put in fetters while he is being taken from prison to Court or back to prison from Court. Steps other than putting him in fetters will have to be taken to prevent his escape.

74. In Prem Shankar Shukla v. Delhi Administration (1980) 3 SCC 526, this court has made following observations: "……. The Punjab Police Manual, in so far as it puts the ordinary Indian beneath the better class breed (para 26.21A and 26.22 of Chapter XXVI) is untenable and arbitrary. Indian humans shall not be dichotomised and the common run discriminated against regarding handcuffs. The provisions in para 26.22 that every under-trial who is accused of a non-bailable offence punishable with more than 3 years prison term shall be routinely handcuffed is violative of Articles 14, 19 and 21. The nature of the accusation is not the criterion. The clear and present danger of escape breaking out of the police control is the determinant. And for this there must be clear material, not glib assumption, record of reasons and judicial oversight and summary hearing and direction by the court where the victim is produced. … Handcuffs are not summary punishment vicariously imposed at police level, at
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once obnoxious and irreversible. Armed escorts, worth the salt, can overpower any unarmed under- trial and extra guards can make up exceptional needs. In very special situations, the application of irons is not ruled out. The same reasoning applies to (e) and (f). Why torture the prisoner because others will demonstrate or attempt his rescue? The plain law of under-trial custody is thus contrary to the unedifying escort practice. (Para 31)

Even in cases where, in extreme circumstances, handcuffs have to be put on the prisoner, the escorting authority must record contemporaneously the reason for doing so. Otherwise, under Article 21 the procedure will be unfair and bad in law. The minions of the police establishment must make good their security recipes by getting judicial approval. And, once the court directs that handcuffs shall be off, no escorting authority can overrule judicial direction. This is implicit in Article 21 which insists upon fairness, reasonableness and justice in the very procedure which authorities stringent deprivation of life and liberty. (Para 30) It is implicit in Articles 14 and 19 that when there is no compulsive need to fetter a person’s limbs, it is sadistic, capricious, despotic and demoralizing to humble a man by manacling him. Such arbitrary conduct surely slaps Article 14 on the face. The minimal freedom of movement which even a

detainee is entitled to under Article 19 cannot be cut down cruelly by application of handcuffs or other hoops. It will be unreasonable so to do unless the State is able to make out that no other practical way of forbidding escape is available, the prisoner being so dangerous and desperate and the

circumstances so hostile to safekeeping. (Para 23) Whether handcuffs or other restraint should be imposed on a prisoner is a matter for the decision of the authority responsible for his custody. But there is room for imposing supervisory regime over the
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exercise of that power. One sector of supervisory jurisdiction could appropriately lie with the court trying the accused, and it would be desirable for the custodial authority to inform that court of the circumstances in which, and the justification for, imposing a restraint on the body of the accused. It should be for the court concerned to work out the modalities of the procedure requisite for the purpose of enforcing such control."

75. After dealing with the concept of life and liberty under the Indian Constitution, we would like to have the brief survey of other countries to ascertain how life and liberty has been protected in other countries.

UNITED KINGDOM

76. Life and personal liberty has been given prime importance in the United Kingdom. It was in 1215 that the people of England revolted against King John and enforced their rights, first time the King had acknowledged that there were certain rights of the subject could be called Magna Carta 1215. In 1628 the petition of rights was presented to King Charles-I which was the 1st step in the transfer of Sovereignty from the King to Parliament. It was passed as the Bill of Rights 1689.

77. In the Magna Carta, it is stated "no free man shall be taken, or imprisoned or disseised or outlawed or banished or any ways
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destroyed, nor will the King pass upon him or commit him to prison, unless by the judgment of his peers or the law of the land".

78. Right to life is the most fundamental of all human rights and any decision affecting human right or which may put an individual’s life at risk must call for the most anxious scrutiny. See: Bugdaycay v. Secretary of State for the Home Department (1987) 1 All ER 940. The sanctity of human life is probably the most fundamental of the human social values. It is recognized in all civilized societies and their legal system and by the internationally recognized statements of human rights. See: R on the application of Pretty v. Director of Public Prosecutions (2002) 1 All ER 1.

U.S.A.

79. The importance of personal liberty is reflected in the Fifth Amendment to the Constitution of U.S.A. (1791) which declares as under :-

"No person shall be…..deprived of his life, liberty or property, without due process of law." (The `due process’ clause was adopted in s.1(a) of the Canadian Bill of Rights Act, 1960. In the Canada Act, 1982, this expression has been substituted by `the principles of fundamental justice’ [s.7].
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80. The Fourteenth Amendment imposes similar limitation on the State authorities. These two provisions are conveniently referred to as the `due process clauses’. Under the above clauses the American Judiciary claims to declare a law as bad, if it is not in accordance with `due process’, even though the legislation may be within the competence of the Legislature concerned. Due process is conveniently understood means procedural regularity and fairness. (Constitutional Interpretation by Craig R. Ducat, 8 th Edn. 2002 p.475.).

WEST GERMANY

81. Article 2(2) of the West German Constitution (1948) declares:

"Everyone shall have the right to life and physical inviolability. The freedom of the individual shall be inviolable. These rights may be interfered with only on the basis of the legal order."

Though the freedom of life and liberty guaranteed by the above Article may be restricted, such restriction will be valid only if it is in conformity with the `legal order’ (or `pursuant to a law, according to official translation). Being a basic right, the freedom guaranteed by Article 2(2) is binding on the legislative, administrative and judicial organs of the State [Article 1(3)]. This
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gives the individual the rights to challenge the validity of a law or an executive act violative the freedom of the person by a constitutional complaint to the Federal Constitutional Court, under Article 93. Procedural guarantee is given by Articles 103(1) and 104. Article 104(1)-2(2) provides: "(1) The freedom of the individual may be restricted only on the basis of a formal law and only with due regard to the forms prescribed therein………. (2) Only the Judge shall decide on the admissibility and continued deprivation of liberty."

82. These provisions correspond to Article 21 of our Constitution and the court is empowered to set a man to liberty if it appears that he has been imprisoned without the authority of a formal law or in contravention of the procedure prescribed there.

JAPAN

83. Article XXXI of the Japanese Constitution of 1946 says : "No person shall be deprived of life or liberty nor shall any other criminal penalty be imposed, except according to procedure established by law." This article is similar to Article 21 of our Constitution save that it includes other criminal penalties, such as fine or forfeiture within its ambit.

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CANADA

84. S. 1(1) of the Canadian Bill of Rights Act, 1960, adopted the `Due Process’ Clause from the American Constitution. But the difference in the Canadian set-up was due to the fact that this Act was not a constitutional instrument to impose a direct limitation on the Legislature but only a statute for interpretation of Canadian status, which, again, could be excluded from the purview of the Act of 1960, in particular cases, by an express declaration made by the Canadian Parliament itself (s.2). The result was obvious : The Canadian Supreme Court in R. v. Curr (1972) S.C.R. 889 held that the Canadian Court would not import `substantive reasonableness’ into s.1(a), because of the unsalutary experience of substantive due process in the U.S.A.; and that as to `procedural reasonableness’, s.1(a) of the Bill of Rights Act only referred to `the legal processes recognized by Parliament and the Courts in Canada’. The result was that in Canada, the `due process clause’ lost its utility as an instrument of judicial review of legislation and it came to mean practically the same thing as whatever the Legislature prescribes, – much the same as `procedure established by law’ in Article 21 of the Constitution of India, as interpreted in A.K. Gopalan (supra).
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BANGADESH

85. Article 32 of the Constitution of Bangladesh, 1972 [3 SCW 385] reads as under:

"No person shall be deprived of life or personal liberty save in accordance with law."

This provision is similar to Article 21 of the Indian Constitution. Consequently, unless controlled by some other provision, it should be interpreted as in India.

PAKISTAN

86. Article 9 Right to life and Liberty. – "Security of Person : No person shall be deprived of life and liberty save in accordance with law."

NEPAL

87. In the 1962 – Constitution of Nepal, there is Article 11(1) which deals with right to life and liberty which is identical with Article 21 of the Indian Constitution.

INTERNATIONAL CHARTERS

88. Universal Declaration, 1948. – Article 3 of the Universal Declaration says:

"Everyone has the right to life, liberty and security of person."

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Article 9 provides:

"No one shall be subjected to arbitrary arrest, detention or exile."

Cl.10 says:

"Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him." [As to its legal effect, see M. v. Organisation Belge, (1972) 45 Inter, LR 446 (447, 451, et. Sq.)]

89. Covenant on Civil and Political Rights – Article 9(1) of the U.N. 1966, 1966 says:

"Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law."

90. European Convention on Human Rights, 1950. – This Convention contains a most elaborate and detailed codification of the rights and safeguards for the protection of life and personal liberty against arbitrary invasion.

91. In every civilized democratic country, liberty is considered to be the most precious human right of every person. The Law Commission of India in its 177th Report under the heading `Introduction to the doctrine of "arrest" has described as follows:
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"Liberty is the most precious of all the human rights". It has been the founding faith of the human race for more than 200 years. Both the American Declaration of Independence, 1776 and the French Declaration of the Rights of Man and the Citizen, 1789, spoke of liberty being one of the natural and inalienable rights of man. The universal declaration of human rights adopted by the general assembly on United Nations on December 10, 1948 contains several articles designed to protect and promote the liberty of individual. So does the international covenant on civil and political rights, 1996. Above all, Article 21 of the Constitution of India proclaims that no one shall be deprived of his right to personal liberty except in accordance with the procedure prescribed by law. Even Article 20(1) & (2) and Article 22 are born out of a concern for human liberty. As it is often said, "one realizes the value of liberty only when he is deprived of it." Liberty, along with equality is the most fundamental of human rights and the fundamental freedoms guaranteed by the Constitution. Of equal importance is the maintenance of peace, law and order in the society. Unless, there is peace, no real progress is possible. Societal peace lends stability and security to the polity. It provides the necessary conditions for growth, whether it is in the economic sphere or in the scientific and technological spheres."

92. Just as the Liberty is precious to an individual, so is the society’s interest in maintenance of peace, law and order. Both are equally important.

93. It is a matter of common knowledge that a large number of undertrials are languishing in jail for a long time even for allegedly committing very minor offences. This is because section 438 Cr.P.C. has not been allowed its full play. The
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Constitution Bench in Sibbia’s case (supra) clearly mentioned that section 438 Cr.P.C. is extraordinary because it was incorporated in the Code of Criminal Procedure, 1973 and before that other provisions for grant of bail were sections 437 and 439 Cr.P.C. It is not extraordinary in the sense that it should be invoked only in exceptional or rare cases. Some courts of smaller strength have erroneously observed that section 438 Cr.P.C. should be invoked only in exceptional or rare cases. Those orders are contrary to the law laid down by the judgment of the Constitution Bench in Sibbia’s case (supra). According to the report of the National Police Commission, the power of arrest is grossly abused and clearly violates the personal liberty of the people, as enshrined under Article 21 of the Constitution, then the courts need to take serious notice of it. When conviction rate is admittedly less than 10%, then the police should be slow in arresting the accused. The courts considering the bail application should try to maintain fine balance between the societal interest vis-`-vis personal liberty while adhering to the fundamental principle of criminal jurisprudence that the accused that the accused is presumed to be innocent till he is found guilty by the competent court.

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94. 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 court should also examine the fact 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 the investigating officer is established then action be taken against the investigating officer in accordance with law.

95. 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 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 court.

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96. 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 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.

97. A great ignominy, humiliation and disgrace is attached to the arrest. Arrest leads to many serious consequences not only for the accused but for the entire family and at times for the entire community. Most people do not make any distinction between arrest at a pre-conviction stage or post-conviction stage. Whether the powers under section 438 Cr.P.C. are subject to limitation of section 437 Cr.P.C.?

98. The question which arises for consideration is whether the powers under section 438 Cr.P.C. are unguided or uncanalised or are subject to all the limitations of section 437 Cr.P.C.? The Constitution Bench in Sibbia’s case (supra) has clearly observed that there is no justification for reading into section 438 Cr.P.C. and the limitations mentioned in section 437 Cr.P.C. The Court
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further observed that the plentitude of the section must be given its full play. The Constitution Bench has also observed that the High Court is not right in observing that the accused must make out a "special case" for the exercise of the power to grant anticipatory bail. This virtually, reduces the salutary power conferred by section 438 Cr.P.C. to a dead letter. The Court observed that "We do not see why the provisions of Section 438 Cr.P.C. should be suspected as containing something volatile or incendiary, which needs to be handled with the greatest care and caution imaginable."

99. As aptly observed in Sibbia’s case (supra) that a wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.
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100. The Constitution Bench in the same judgment also observed that a person seeking anticipatory bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints and conditions on his freedom, by the acceptance of conditions which the court may deem fit to impose, in consideration of the assurance that if arrested, he shall enlarged on bail.

101. The proper course of action 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 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 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.

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102. The order granting anticipatory bail for a limited 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 (supra).

103. It is a settled legal position that 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 finding new material or circumstances at any point of time.

104. 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 (supra) has clearly stated that grant and refusal is discretionary and it should depend on the facts and circumstances of each case. The Constitution Bench in the said case has aptly observed that we must respect the wisdom of the Legislature entrusting this power to the superior courts namely, the High Court and the Court of Session. The Constitution Bench observed as under:
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"We would, therefore, prefer to leave the High Court and the Court of Session to exercise their jurisdiction under Section 438 by a wise and careful use of their discretion which, by their long training and experience, they are ideally suited to do. The ends of justice will be better served by trusting these courts to act objectively and in consonance with principles governing the grant of bail which are recognized 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 grounds that, after all "the legislature in, its wisdom" has thought it fit to use a particular expression. A convention may usefully grow whereby the High Court and the Court of Session may be trusted to exercise their discretionary powers in their wisdom, especially when the discretion is entrusted to their care by the legislature in its wisdom. If they err, they are liable to be corrected."

GRANT OF BAIL FOR LIMITED PERIOD IS CONTRARY TO THE LEGISLATIVE INTENTION AND LAW DECLARED BY THE CONSTITUTION BENCH:

105. The court which grants the bail has the right to cancel the bail 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.

106. The judgment in Salauddin Abdulsamad Shaikh (supra) is contrary to legislative intent and the spirit of the very provisions of the anticipatory bail itself and has resulted in an
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artificial and unreasonable restriction on the scope of enactment contrary to the legislative intention.

107. 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. The added observation is nowhere found in the enactment and bringing in restrictions which are not found in the enactment is again an unreasonable restriction. It would not stand the test of fairness and reasonableness which is implicit in Article 21 of the Constitution after the decision in Maneka Gandhi’s case (supra) in which the court observed that in order to meet the challenge of Article 21 of the Constitution the procedure established by law for depriving a person of his liberty must be fair, just and reasonable.

108. 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 anticipatory bail is a direction specifically to release the accused on bail in the event of his arrest. Once such a direction of anticipatory bail is executed by the accused and he is released on bail, the
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concerned court would be fully justified in imposing conditions including direction of joining investigation.

109. The court does not use the expression `anticipatory bail’ but it provides for issuance of direction for the release on bail by the High Court or the Court of Sessions in the event of arrest. According to the aforesaid judgment of Salauddin’s case, the accused has to surrender before the trial court and only thereafter he/she can make prayer for grant of bail by the trial court. The trial court would release the accused only after he has surrendered.

110. 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 and again apply for regular bail.

111. 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 concerned agency may not otherwise arrest that applicant who has applied for anticipatory bail but just because he makes an
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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 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. The applicant who may not have otherwise lost his liberty loses it because he chose to file application of anticipatory bail on mere apprehension of being arrested on accusation of having committed a non-bailable offence. No arrest should be made because it is lawful for the police officer to do so. The existence of power to arrest is one thing and the justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so. This finding of the said judgment (supra) is contrary to the legislative intention and law which has been declared by a Constitution Bench of this court in Sibbia’s case (supra).

112. The validity of the restrictions imposed by the Apex Court, namely, that the accused released on anticipatory bail must submit himself to custody and only thereafter can apply for regular bail. This is contrary to the basic intention and spirit of section 438 Cr.P.C. It is also contrary to Article 21 of the
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Constitution. The test of fairness and reasonableness is implicit under Article 21 of the Constitution of India. Directing the accused to surrender to custody after the limited period amounts to deprivation of his personal liberty.

113. It is a settled legal position crystallized by the Constitution Bench of this court in Sibbia’s case (supra) that the courts should not impose restrictions on the 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.

114. It is unreasonable to lay down strict, inflexible and rigid rules for exercise of such discretion by limiting the period of which an order under this section could be granted. We deem it appropriate to reproduce some observations of the judgment of the Constitution Bench of this court in the Sibbia’s case (supra).

"The validity of that section must accordingly be examined by the test of fairness and reasonableness which is implicit in Article 21. If the legislature itself were to impose an unreasonable restriction on the grant of anticipatory bail, such a 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

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unreasonable limitation on the individual’s right to obtain an order of anticipatory bail. Imposition of an unfair or unreasonable limitation, according to the learned Counsel, would be violative of Article 21, irrespective of whether it is imposed by legislation or by judicial decision.

xxx xxx xxx

Clause (1) of Section 438 is couched in terms, broad and unqualified. By any known canon of construction, words of width and amplitude ought not 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 which falls for consideration is designed to secure a valuable right like the right to personal freedom and involves the application of a presumption as salutary and deep grained in our criminal jurisprudence as the presumption of innocence."

xxx xxx xxx

"I desire in the first instance to point out that the discretion given by the section is very wide. . . Now it seems to me that when the Act is so expressed to provide a wide discretion, … it is not advisable to lay down any rigid rules for guiding that discretion. I do not doubt that the rules enunciated by the Master of the Rolls in the present case are useful maxims in general, and that in general they reflect the point of view from which judges would regard an application for relief. But I think it ought to be distinctly understood that there may be cases in which any or all of them may be disregarded. If it were otherwise, the free discretion given by the statute would be fettered by limitations which have nowhere been enacted. It is one thing to decide what is the true meaning of the language contained in an Act of Parliament. It is quite a different thing to place
59

conditions upon a free discretion entrusted by statute to the court where the conditions are not based upon statutory enactment at all. It is not safe, I think, to say that the court must and will always insist upon certain things when the Act does not require them, and the facts of some unforeseen case may make the court wish it had kept a free hand."

xxx xxx xxx

"The concern of the courts generally is to preserve their discretion without meaning to abuse it. It will be strange if we exhibit concern to stultify the discretion conferred upon the courts by law."

115. The Apex Court in Salauddin’s case (supra) held that anticipatory bail should be granted only for a limited period and on the expiry of that duration it should be left to the regular court to deal with the matter is not the correct view. The reasons quoted in the said judgment is that anticipatory bail is granted at a stage when an investigation is incomplete and the court is not informed about the nature of evidence against the alleged offender.

116. The said reason would not be right as the restriction is not seen in the enactment and bail orders by the High Court and Sessions Court are granted under sections 437 and 439 also at such stages and they are granted till the trial.
60

117. The view expressed by this Court in all the above referred judgments have to be reviewed and 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 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.

SCOPE AND AMBIT OF ANTICIPATORY BAIL:

118. A good deal of misunderstanding with regard to the ambit and scope of section 438 Cr.P.C. could have been avoided in case the Constitution Bench decision of this court in Sibbia’s case (supra) was correctly understood, appreciated and applied.

119. This Court in the Sibbia’s case (supra) laid down the following principles with regard to anticipatory bail: a) Section 438(1) 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.

c) Order under section 438 would not affect the right of police to conduct investigation.

d) Conditions mentioned in section 437 cannot be read into section 438.

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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." Powers are discretionary to be exercised in light of the circumstances of each case.

f) 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.

120. The Law Commission in July 2002 has severely criticized the police of our country for the arbitrary use of power of arrest which, the Commission said, is the result of the vast discretionary powers conferred upon them by this Code. The Commission expressed concern that there is no internal mechanism within the police department to prevent misuse of law in this manner and the stark reality that complaint lodged in this regard does not bring any result. The Commission intends to suggest amendments in the Criminal Procedure Code and has invited suggestions from various quarters. Reference is made in this Article to the 41st Report of the Law Commission wherein the Commission saw `no justification’ to require a person to submit to custody, remain in prison for some days and then apply for
bail even when there are reasonable grounds for holding that the person accused of an offence is not likely to abscond or otherwise misuse his liberty. Discretionary power to order anticipatory bail is required to be exercised keeping in mind these sentiments and spirit of the judgments of this court in Sibbia’s case (supra) and Joginder Kumar v. State of U.P. and Others (1994) 4 SCC 260.

Relevant consideration for exercise of the power

121. No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail. We are clearly of the view that 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 the legislative intention the grant or refusal of anticipatory bail should necessarily depend on facts and circumstances of each case. As aptly observed in the Constitution Bench decision in Sibbia’s case (supra) that the High Court or the Court of Sessions to exercise their jurisdiction under section 438 Cr.P.C. by a wise and careful use of their discretion which by their long training and experience they are ideally suited to do. In any event, this is
63

the legislative mandate which we are bound to respect and honour.

122. 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;

iii. The possibility of the applicant to flee from justice; 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.

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 implicated with the help of sections 34 and 149 of the Indian 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;

viii. While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be
64

caused to the free, fair and full investigation and there should be prevention of harassment,

humiliation and unjustified detention of the accused;

ix. The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;

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 normal course of events, the accused is entitled to an order of bail.

123. The arrest should be the last option and it should be restricted to those exceptional cases where arresting the accused is imperative in the facts and circumstances of that case.

124. 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 circumstances on record.

125. These are some of the factors which should be taken into consideration while deciding the anticipatory bail applications. These factors are by no means exhaustive but they are only illustrative in nature because it is difficult to clearly visualize all situations and circumstances in which a person may pray for
65

anticipatory bail. If a wise discretion is exercised by the concerned judge, after consideration of entire material on record then most of the grievances in favour of grant of or refusal of bail will be taken care of. The legislature in its wisdom has entrusted the power to exercise this jurisdiction only to the judges of the superior courts. In consonance with the legislative intention we should accept the fact that the discretion would be properly exercised. In any event, the option of approaching the superior court against the court of Sessions or the High Court is always available.

126. Irrational and Indiscriminate arrest are gross violation of human rights. In Joginder Kumar’s case (supra), a three Judge Bench of this Court has referred to the 3rd report of the National Police Commission, in which it is mentioned that the quality of arrests by the Police in India mentioned power of arrest as one of the chief sources of corruption in the police. The report suggested that, by and large, nearly 60% of the arrests were either unnecessary or unjustified and that such unjustified police action accounted for 43.2% of the expenditure of the jails.
66

127. 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. 128 In case, the State consider 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 are only illustrative and not exhaustive.

1) Direct the accused to join investigation and only when the accused does not cooperate with the investigating agency, then only the accused be arrested.

2) Seize either the passport or such other related 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.

5) The accused be directed to furnish undertaking 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.

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129) In case the arrest is imperative, according to the 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 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.

130. Exercise of jurisdiction under section 438 of 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 in anticipatory bail applications.

131. 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 properly comprehend the importance of personal liberty vis-`-vis social
68

interests. They must learn to maintain fine balance between the personal liberty and the social interests.

132. The performance of the judicial officers must be periodically evaluated on the basis of the cases decided 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 must ensure that grant or refusal of bail is considered basically on the facts and circumstances of each case.

133. In our considered view, the Constitution Bench in Sibbia’s case (supra) has comprehensively dealt with almost all aspects of the concept of anticipatory bail under section 438 Cr.P.C. A number of judgments have been referred to by the learned counsel for the parties consisting of Benches of smaller strength where the courts have observed that the anticipatory bail should be of limited duration only and ordinarily on expiry of that duration or standard duration, the court granting the anticipatory bail should leave it to the regular court to deal with
69

the matter. This view is clearly contrary to the view taken by the Constitution Bench in Sibbia’s case (supra). In the preceding paragraphs, it is clearly spelt out that no limitation has been envisaged by the Legislature under section 438 Cr.P.C. The Constitution Bench has aptly observed that "we see no valid reason for rewriting section 438 with a view, not to expanding the scope and ambit of the discretion conferred on the High Court or the Court of Session but, for the purpose of limiting it".

134. In view of the clear declaration of law laid down by the Constitution Bench in Sibbia’s case (supra), it would not be 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 limitation has not been envisaged by the legislature. The Constitution Bench in Sibbia’s case (supra) clearly observed that 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.

70

135. The ratio of the judgment of the Constitution Bench in Sibbia’s case (supra) perhaps was not brought to the notice of their Lordships who had decided the cases of Salauddin Abdulsamad Shaikh v. State of Maharashtra, K. L. Verma v. State and Another, Adri Dharan Das v. State of West Bengal and Sunita Devi v. State of Bihar and Another (supra).

136. In Naresh Kumar Yadav v. Ravindra Kumar (2008) 1 SCC 632, a two-Judge Bench of this Court observed "the power exercisable under section 438 Cr.P.C. is somewhat extraordinary in character and it should be exercised only in exceptional cases. This approach is contrary to the legislative intention and the Constitution Bench’s decision in Sibbia’s case (supra).

137. We deem it appropriate to reiterate and assert that discretion vested in the court in all matters 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 it and subject to the wide power
71

and discretion conferred by the legislature to a rigorous code of self-imposed limitations.

138. The judgments and orders mentioned in paras 135 and 136 are clearly contrary to the law declared by the Constitution Bench of this Court in Sibbia’s case (supra). These judgments and orders are also contrary to the legislative intention. The Court would not be justified in re-writing section 438 Cr.P.C.

139. Now we deem it imperative to examine the issue of per incuriam raised by the learned counsel for the parties. In Young v. Bristol Aeroplane Company Limited (1994) All ER 293 the House of Lords observed that `Incuria’ literally means `carelessness’. In practice per incuriam appears to mean per ignoratium. English courts have developed this principle in relaxation of the rule of stare decisis. The `quotable in law’ is avoided and ignored if it is rendered, `in ignoratium of a statute or other binding authority. The same has been accepted, approved and adopted by this court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law.

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"……… In Halsbury’s Laws of England (4th Edn.) Vol. 26: Judgment and Orders: Judicial Decisions as Authorities (pp. 297-98, para 578) per incuriam has been elucidated as under:

"A decision is given per incuriam when the court has acted in ignorance of a

previous decision of its own or of a court of coordinate jurisdiction which covered

the case before it, in which case it must

decide which case to follow (Young v.

Bristol Aeroplane Co. Ltd., 1944 KB 718

at 729 : (1944) 2 All ER 293 at 300.

In Huddersfield Police Authority v.

Watson, 1947 KB 842 : (1947) 2 All ER

193.); or when it has acted in ignorance

of a House of Lords decision, in which

case it must follow that decision; or when the decision is given in ignorance of the

terms of a statute or rule having

statutory force."

140. Lord Godard, C.J. in Huddersfield Police Authority v. Watson (1947) 2 All ER 193 observed that where a case or statute had not been brought to the court’s attention and the court gave the decision in ignorance or forgetfulness of the existence of the case or statute, it would be a decision rendered in per incuriam.

141. This court in Government of A.P. and Another v. B. Satyanarayana Rao (dead) by LRs. and Others (2000) 4 SCC 262 observed as under:

73

"The rule of per incuriam can be applied where a court omits to consider a binding precedent of the same court or the superior court rendered on the same issue or where a court omits to consider any statute while deciding that issue."

142. In a Constitution Bench judgment of this Court in Union of India v. Raghubir Singh (1989) 2 SCC 754, Chief Justice Pathak observed as under:

"The doctrine of binding precedent has the merit of promoting a certainty and consistency in judicial decisions, and enables an organic development of the law, besides providing assurance to the individual as to the consequence of transactions forming part of his daily affairs. And, therefore, the need for a clear and consistent enunciation of legal principle in the decisions of a court."

143. In Thota Sesharathamma and another v. Thota Manikyamma (Dead) by LRs. and others (1991) 4 SCC 312 a two Judge Bench of this Court held that the three Judge Bench decision in the case of Mst. Karmi v. Amru (1972) 4 SCC 86 was per incuriam and observed as under: "…It is a short judgment without adverting to any provisions of Section 14 (1) or 14(2) of the Act. The judgment neither makes any mention of any argument raised in this regard nor there is any mention of the earlier decision in Badri Pershad v. Smt. Kanso Devi. The decision in Mst. Karmi cannot be considered as an authority on the ambit and scope of Section 14(1) and (2) of the Act."
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144. In R. Thiruvirkolam v. Presiding Officer and Another (1997) 1 SCC 9 a two Judge Bench of this Court observed that the question is whether it was bound to accept the decision rendered inGujarat Steel Tubes Ltd. v. Mazdoor Sabha (1980) 2 SCC 593, which was not in conformity with the decision of a Constitution Bench in P.H. Kalyani v. Air France (1964) 2 SCR 104. J.S. Verma, J. speaking for the court observed as under:

"With great respect, we must say that the above-quoted observations in Gujarat Steel at P. 215 are not in line with the decision in Kalyani which was binding or with D.C. Roy to which the learned Judge, Krishna Iyer, J. was a party. It also does not match with the underlying juristic principle discussed in Wade. For the reasons, we are bound to follow the Constitution Bench decision in Kalyani, which is the binding authority on the point."

145. In Bharat Petroleum Corporation Ltd. v. Mumbai Shramik Sangra and others (2001) 4 SCC 448 a Constitution Bench of this Court ruled that a decision of a Constitution Bench of this Court binds a Bench of two learned Judges of this Court and that judicial discipline obliges them to follow it, regardless of their doubts about its correctness.
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146. A Constitution Bench of this Court in Central Board of Dawoodi Bohra Community v. State of Maharashtra (2005) 2 SCC 673 has observed that the law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or coequal strength.

147. A three-Judge Bench of this court in Official Liquidator v. Dayanand and Others (2008) 10 SCC 1 again reiterated the clear position of law that by virtue of Article 141 of the Constitution, the judgment of the Constitution Bench in State of Karnataka and Others v. Umadevi (3) and Others (2006) 4 SCC 1 is binding on all courts including this court till the same is overruled by a larger Bench. The ratio of the Constitution Bench has to be followed by Benches of lesser strength. In para 90, the court observed as under:- "We are distressed to note that despite several pronouncements on the subject, there is substantial increase in the number of cases involving violation of the basics of judicial discipline. The learned Single Judges and Benches of the High Courts refuse to follow and accept the verdict and law laid down by coordinate and even larger Benches by citing minor difference in the facts as the ground for doing so. Therefore, it has become necessary to reiterate that disrespect to the constitutional ethos and breach of discipline have grave impact on the
76

credibility of judicial institution and encourages chance litigation. It must be remembered that predictability and certainty is an important hallmark of judicial jurisprudence developed in this country in the last six decades and increase in the frequency of conflicting judgments of the superior judiciary will do incalculable harm to the system inasmuch as the courts at the grass roots will not be able to decide as to which of the judgments lay down the correct law and which one should be followed."

148. In Subhash Chandra and Another v. Delhi Subordinate Services Selection Board and Others(2009) 15 SCC 458, this court again reiterated the settled legal position that Benches of lesser strength are bound by the judgments of the Constitution Bench and any Bench of smaller strength taking contrary view is per incuriam. The court in para 110 observed as under:-

"Should we consider S. Pushpa v. Sivachanmugavelu (2005) 3 SCC 1 to be an obiter following the said decision is the question which arises herein. We think we should. The decisions referred to hereinbefore clearly suggest that we are bound by a Constitution Bench decision. We have referred to two Constitution Bench decisions, namely, Marri Chandra Shekhar Rao v. Seth G.S. Medical College (1990) 3 SCC 139 and E.V.

Chinnaiah v. State of A.P. (2005) 1 SCC 394. Marri Chandra Shekhar Rao (supra) had been followed by this Court in a large number of decisions including the three-Judge Bench decisions. S. Pushpa (supra) therefore, could not have ignored either Marri Chandra Shekhar Rao
77

(supra) or other decisions following the same only on the basis of an administrative circular issued or otherwise and more so when the constitutional scheme as contained in clause (1) of Articles 341 and 342 of the Constitution of India putting the State and Union Territory in the same bracket.Following Official Liquidator v. Dayanand and Others (2008) 10 SCC 1 therefore, we are of the opinion that the dicta in S. Pushpa (supra) is an obiter and does not lay down any binding ratio."

149. The analysis of English and Indian Law clearly 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, judgments mentioned in paragraphs 135 and 136 are by two or three judges of this court. These judgments have clearly ignored a Constitution Bench judgment of this court in Sibbia’s case (supra) which has comprehensively dealt with all the facets of anticipatory bail enumerated under section 438 of Cr.P.C.. Consequently, judgments mentioned in paragraphs 135 and 136 of this judgment are per incuriam.

150. 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 judges, then the
78

proper course would be to request Hon’ble the Chief Justice to refer the matter to a larger Bench of appropriate strength.

151. In the instant case there is a direct judgment of the Constitution Bench of this court in Sibbia’s case (supra) dealing with exactly the same issue regarding ambit, scope and object of the concept of anticipatory bail enumerated under section 438 Cr.P.C. The controversy is no longer res integra. We are clearly bound to follow the said judgment of the Constitution Bench. The judicial discipline obliges us to follow the said judgment in letter and spirit.

152. In our considered view the impugned judgment and order of the High Court declining anticipatory bail to the appellant cannot be sustained and is consequently set aside.

153. We direct the appellant to join the investigation and fully cooperate with the investigating agency. In the event of arrest the appellant shall be released on bail on his furnishing a personal bond in the sum of Rs.50,000/- with two sureties in the like amount to the satisfaction of the arresting officer.

154. Consequently, this appeal is allowed and disposed of in terms of the aforementioned observations.

79

………………………………………..J. (Dalveer Bhandari)

……………………………………….J. (K.S. Panicker

Radhakrishnan)

New Delhi;

December 2, 2010

 

BALCHAND JAIN

Vs.

RESPONDENT:

STATE OF MADHYA PRADESH

DATE OF JUDGMENT05/11/1976

BENCH:

BHAGWATI, P.N.

BENCH:

BHAGWATI, P.N.

GUPTA, A.C.

FAZALALI, SYED MURTAZA

CITATION:

1977 AIR 366 1977 SCR (2) 52

1976 SCC (4) 572

CITATOR INFO :

RF 1980 SC1632 (24,25)

R 1982 SC 149 (1223)

RF 1988 SC 922 (21,22)

R 1991 SC 558 (7)

ACT:

Defence and Internal Security of India Rules, 1971–r. 184–If supersedes S. 438. Gr. P.C. 1973.

HEADNOTE:

Section 438 of the Code of Criminal Procedure, 1973 provides that when any person has reason to believe that he may be arrested on an accusation of having committed a non- bailable offence, he may apply to the High Court or the Court of Session for a direction under this Section. Rule 184 of the Rules made under Defence and Internal Security of India Act, 1971 enacts that notwithstanding anything con- tained in the Code of Criminal Procedure, 1898, no person accused or convicted of a contravention of the Rules or orders made thereunder shall, if in custody, be released on bail or on his own bond unless (a) the prosecution has been given an opportunity to oppose the application for such release and (b) where the prosecution opposes the applica- tion and the contravention is of any such provision of the Rules or orders made thereunder as the Central Government or the State Government may, by notified order specify in this behalf, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such contra- vention.

A Food Inspector raided the shop of the appellant, who was a merchant dealing in kiryana goods and kerosene oil etc., and seized his account books. Apprehending that he might be arrested on a charge of non-bailable offence for contravention of the provisions of the Defence and Internal Security of India Act and the Rules, the appellant ap- proached the Sessions Judge for an anticipatory bail under s. 438 of the Code of Criminal Procedure, 1973. The Ses- sions Judge rejected the application. Dismissing his ap- peal, the High Court held that the express provisions of r. 184 of the Rules superseded s. 438 of the Code in so far as offences set out in r. 184 were concerned. Allowing the appeal and remanding the case to the High Court:

HELD: (P. N. Bhagwati and A.C. Gupta,JJ.) Section 438 and r. 184 operate at different stages, one prior to arrest.and the other after arrest and there is no overlapping between these two provisions. Rule 184 does not stand in the way of a Court of Sessions or a High Court granting anticipatory bail under s. 438. [57G]

1. The term ‘anticipatory bail’ is a misnomer. It is not as if the bail is presently granted by the court in anticipation of arrest. When the court grants anticipatory bail it makes an order that in the event of arrest a person shall be released on bail. Thin somewhat extraordinary power is exercised only in exceptional cases and is entrust- ed to the higher echelons of the judicial service namely the court of Sessions and the High Court. [55H]

2. (a) Rule 184 postulates the existence of power in the court under the Code and seeks to place a curb on its exer- cise by providing that a person accused or convicted of contravention of any rule or order, if in custody, shall not be released on bail unless the conditions mentioned in the rule are satisfied. When the two conditions are satisfied the fetters placed on the exercise of the power are removed and the power of granting bail possessed by the court under the Code revives and becomes exercisable. [56H] (b) The non-obstante clause is intended to restrict the power of granting bail under the Code and not to confer a new power exercisable only on certain conditions. [57B] 53

(c) Rule 184 does not lay down a self-contained code for grant of bail. 1t cannot be construed as displacing alto- gether the provisions of the Code in regard to bail. The provisions of the Code must be read alongwith r. 184 and full effect must be given to them except in so far as they are by reason of the non-obstante clause overridden by r.

184. [57B-C]

(d) An application under s. 438 is an application on an apprehension of arrest. On such an application, the direc- tion that may be given under s. 438 is that in the event of his arrest the applicant shall be released on bail. Rule 184 operates at a subsequent stage when a person is accused or convicted of contravention of any rule or order made under the Rules and is in custody. It is only the release of such a person on bail that is conditionally prohibited by r. 184.

[57E]

If these are the conditions provided by the rule-making authority for releasing on bail a person arrested on an accusation of having committed contravention of any rule or order made under the Rules it must follow a fortiori that the same conditions must provide the guidelines while exer- cising the power to grant anticipatory bail to a person apprehending arrest on such accusation though they would not be strictly applicable. [58C]

(Fazal Ali, J.)

Section 438 of the Code has not been repealed by r. 184 of the Rules, but both have to be read harmoniously. Rule 184 is only supplemental to 8. 438 and contains guidelines which have to be followed by the Court in passing orders for anticipatory bail in relation to cases covered by r. 184. [70A]

1. (a) Section 438 of the Cede is an extraordinary remedy and should be resorted to only in special cases. [70C]

(b) Section 438 applies only to non-bailable offences. Anticipatory bail being an extraordinary remedy available in special cases, this power has been conferred on the higher echelons of judicial service, namely, the Court of Sessions or the High Court. What the section contemplates is not anticipatory bail but merely an order releasing an accused on bail in the event of his arrest. There can be no question of bail unless a person is under detention or custody. The object of s. 438 is that the moment a person is arrested, if he had already obtained an order from the Sessions Judge or the High Court, he would be released immediately without having to undergo the rigours of jail even for a few days. [63B-D]

2. (a) While interpreting statutes, the Court must infer repeal of a former statute by the latter only if it causes inconvenience or where it is couched in negative terms. The legislature does not intend to keep contradictory enactments on the statute book and, therefore, a construction should be accepted which offers an escape from it. [66A-C] Aswini Kumar Ghosh and Anr. v. Arabinda Bose and Anr. [1953] S.C.R. 1 referred to.

2. (b) If the intention of r. 184 were to override the provisions of s 438, then the Legislature should have ex- pressly stated that the provisions of s. 438 shall not apply to offences contemplated by r. 184. Therefore, the Legisla- ture in its wisdom left it to the Court to bring about a harmonious construction of the two statutes so that the two may work and stand together. [65F-G]

Northern India Cateres Pvt. Ltd. & Anr. v. State of Punjab and Anr. [1967] 3 S.C.R. 399 followed. (c) There is no real inconsistency between s. 438 and r. 184 and, therefore. the non-obstante clause cannot be inter- preted in a manner so as to reveal or override the provi- sions of s. 438 in respect of cases where r. 184 applies. The conditions required by r. 184 must be impliedly imported in s. 438 so as to form the main guidelines to be followed while the Court exercises its power under s. 438 in offences contemplated by r. 184. Such an interpretation would meet the ends of justice, avoid all possible anomalies and would ensure and protect the liberty of the subject which is the real intention of the Legislature in enacting s.438 as a new provision for the first time in the Code. [66E-F] 54

3. (a) Section 438 does not contain unguided or uncana- lised power to pass an order for anticipatory bail; but such an order being of an exceptional type can only be passed if, apart from the conditions mentioned in s. 437. there is a special case for passing the order. The words ‘for a direc- tion under this section’ and ‘Court may, if it thinks fit, direct’ clearly show that the Court has to be guided by a large number of considerations, including those mentioned in s. 437. When a Court is dealing with offences contemplated by r. 184 it is obvious that though the offences are not punishable with death or imprisonment for life so as to attract the provisions of s. 437, the conditions laid down by r. 184 would have to be complied with before an order under s. 438 could be passed. [67A-B]

In re V. Bhuvaraha Iyengar, A.I.R. [1942] Mad. 221, 223, In re Surajlal Harilal Majumdar & others, A.I.R. 1943 Bom. 82, and Saligram Singh & Ors. v. Emperor, AIR 1945 Pat. 69 distinguished.

(b) The scope of r. 184. is wider than that of s. 438 inasmuch as while s. 438 can be invoked only in cases of non-bailable offences and not in cases of bailable offences, r. 184 is applied not only to non-bailable offences but also to bailable offences and, therefore, the conditions men- tioned in r. 184, would have to be impliedly imported into s. 436 which deals with orders for bail regarding bailable offences. [69D]

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 325 of 1975.

Appeal by Special Leave from the Judgment and Order dated the 30th September, 1975 of the Madhya Pradesh High Court in Criminal Misc. Case No. 1112 of 1975. V.M. Tarkunde and Pramod Swarup for the Appellant. Ram Panjwani, H.S. Parihar and I. N. Shroff for the Respond- ent.

The Judgment of P. N. Bhagwati and A.C. Gupta J.J. was delivered by Bhagwati, J. Fazal Ali, J. gave a separate concurring opinion.

BHAGWATI, J. The facts giving rise to this appeal are set out in the judgment about to be delivered by our learned brother S. Murtaza Fazal All and it is, therefore, not necessary to reiterate them. The question which arises for determination on these facts is a short once and it is: whether an order of ‘anticipatory bail’ can be competently made by a Court of Session or a High Court under section 438 of the Code of Criminal Procedure, 1973 in case of offences falling under Rule 184 of the Defence and Internal Security of India Rules, 1971 made under the Defence and Internal Security of India Act, 1971 (hereinafter referred as the Act).

There was at one time conflict of decisions amongst different High Courts in India about the power of a court to grant ‘anticipatory bail’. The majority view was that there was no such power in the court under the old Criminal Procedure Code. The Law Commission, in its Forty First Report pointed out:

“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

55

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.”,

and recommended introduction of a provision for grant of ‘anticipatory bail’. This recommendation was accepted by the Central Government and clause (447) was introduced in the draft Bill of the new Code of Criminal Procedure conferring express power on a Court of Session or a High Court/to grant ‘anticipatory bail’. Commenting on this provision in the draft Bill, the Law Commission observed in paragraph 31 of its Forty-Eighth Report:

“The Bill introduces a provision for the grant of anticipatory bail. This is substantially in accordance with the recommendations made by the previous Commission (41st Report). We agree that this would be a useful addition, though we must add that it is in very exceptional cases that such a power should be exercised.

We are further of the view that in order to ensure that the provision is not put to abuse at the instance of unscrupulous petitioners, the final order should be made only after notice to the public prosecutor. The initial order should only be an interim one. Further the relevant section should make it clear that the direction can be issued only for reasons to be recorded, and if the Court is satisfied that such a direction is necessary in the interests of justice.”

Clause (447) became section 438 when the Bill was enacted into the new Code of Criminal Procedure. That section is in the following terms:

“(1) When any person has reason to

believe that he may be arrested on an accusation of having committed a nonbailable offence, he may apply to the High Court or the Court of Session for 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.

X X X X

X

We do not find in this section the words ‘anticipatory bail’, but that is clearly the subject with which the section deals. In fact ‘anticipatory bail’ is a misnomer. It is not as if bail is presently granted by the Court in anticipation of arrest. When the Court grants ‘anticipatory bail’ what it does is to make an order that in the event of arrest, a person shall be released on bail.. Manifestly there is no question of release on bail unless a person is arrested and, therefore,, it is only on arrest that the order granting ‘anticipatory bail’ becomes operative. Now, this power of granting ‘anticipatory bail’ is somewhat extraordinary in character and it is only in exceptional cases where it appears 56

that a person might be falsely implicated, or a frivolous case might be launched against him, or “there are reasonable grounds for ho1ding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail” that such power is to be exercised. And this power being rather of an unusual nature, it is entrusted only to the higher echelons of judicial service, namely, a Court of Session and the High Court. It is a power exercisable in case of an anticipated accusation of nonbailable offence and there is no limitation as to the category of nonbailable offence in respect of which the power can be exercised by the appropriate court.

Having examined the historical background and context of section 438 of the new Code of Criminal Procedure and the language in which it is couched, let us turn to Rule 184 of the Defence and Internal Security of India Rules, 1971. That is the Rule with which we are concerned in this appeal and it runs as follows:

“Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (V of 1898), no person accused convicted of a contravention of these Rules or orders made thereunder shall, if in custody, be released on bail or his own bond unless–

(a) the prosecution has been given an opportunity to oppose the application for such release, and

(b) where the prosecution opposes the application and the contravention is of any such provision of these Rules or orders made thereunder as the Central Government or the State Government may by notified order specify in this behalf, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such contravention.” This Rule commences on a non-obstante clause and in its operative part imposes a ban on release on bail of a person accused or convicted of a contravention of the Rules or orders made thereunder, if in custody, unless two conditions are satisfied. The first condition is that the prosecution must be given an opportunity to oppose the application for such release and the second condition is that when the contravention is of any such provision of the Rules or orders made thereunder as the Central Government or the State Government may by notified order specify in this behalf, the Court must be satisfied that there are reasona- ble grounds for believing that be is not guilty of such contravention. If either of these two conditions is not satisfied. the ban operates and the person concerned cannot be released on bail. The Rule, on its plain terms, does not confer any power on the Court to release a person accused or convicted of contravention of any Rule or order made under the Rules, on bail. It postulates the existence of power in the Court under the Code of Criminal Procedure and seeks to place a curb on its exercise by providing that a person accused or convicted of contravention of any Rule or order made under the rules, if in custody. shall not be released on bail unless the aforesaid two conditions are satisfied. It imposed fetters on the exercise of the power of 57

granting bail in certain kinds of cases and removes such fetters on fulfilment of the aforesaid two conditions. When these two conditions are satisfied, the fetters are removed and the power of granting bad possessed by the Court under the Code of Criminal Procedure revives and becomes exercisa- ble. The non-obstante clause at the commencement of the Rule also emphasises that the provision in the Rule is intended to restrict the power of granting bail under the Code of Criminal Procedure and not to confer a new power exercisable only on certain conditions. It is not possible to read Rule 184 as laying down a self-contained code for grant of bail in case of a person accused or convicted of contravention of any Rule or order made under the Rules so that the power to grant bail in such case must be found only in Rule 184 and not in the Code of Criminal Procedure. Rule 184 cannot be construed as displacing altogether the provi- sions of the Code of Criminal Procedure in regard to bail in case of a person accused or convicted of contravention of any Rule or order made under the Rules. These provisions of the Code of Criminal Procedure must be read along with Rule 184 and full effect must be given to them except in so far as they are, by reason of the non-obstante clause overridden by rule 184.

We must, therefore, proceed to consider whether on a true and harmonious construction, section 438 of the Code of Criminal Procedure, which provides for grant of ‘anticipato- ry bail can stand side by side with Rule 184 or there is any inconsistency between them so that to the extent of incon- sistency, it must be regarded as overridden by that rule. Now section 438 contemplates an application to be made by a person who apprehends that he may be arrested on an accusa- tion of having committed a nonbailable offence. It is an application on an apprehension of arrest that invites the exercise of the powers under section 438. And on such an application, the direction that may be given. under section 43 8 is that in the event of his arrest, the applicant shall be released on bail. Rule 184, on the other hand, deals with a different situation and operates at a subsequent stage when a person is accused or convicted of contravention of any Rule or order made under the Rules and is in custody. It is only the release of such a person on bail that is conditionally prohibited by Rule 184. If a person is not in custody but is merely under an apprehension of arrest and he applies for grant of ‘anticipatory bail’ under section 438, his case Would clearly be outside the mischief of Rule 184, because when the Court makes an order for grant of ‘antici- patory bail’, it would not be directing release of a person who is in custody. It is an application for release of a person in custody that is contemplated by Rule 184 and not an application for grant of ‘anticipatory bail’ by a person apprehending arrest. Section 438 and Rule 184 thus operate at different stages, one prior to arrest and the other, after arrest and there is no overlapping between these two provisions so as to give rise to a conflict between them. And consequently. it must follow as a necessary corollary that Rule 184 does not stand in the way of a Court of Ses- sion or a High Court granting ‘anticipatory bail’ under section 438 to a person apprehending arrest on an accusation of having committed contravention of any Rule or order made under the Rules.

But even if Rule 184 does not apply in such a case, the policy behind this Rule would have to be borne in mind by the Court while exercising

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its power to grant ‘anticipatory bail’ under section 438. The rule making authority obviously thought offences arising out of contravention of Rules and orders made thereunder were serious offences as they might imperil the defence of India or civil defence or internal security or public safety or maintenance of public order or hamper maintenance of supplies and. services to the life of the community and hence it provided in Rule 184 that no person accused or convicted of contravention of any Rule or order made under the Rules, shall be released on bail unless the prosecution is given an opportunity to oppose the application for such release and in case the contravention is of a Rule or order specified in this behalf in a notified order, there are reasonable grounds for believing that the person concerned is not guilty of such contravention. If these are the condi- tions provided by the Rule making authority for releasing on bail a person arrested on an accusation of having committed contravention of any Rule or order made under the Rules, it must follow a fortiori that the same conditions must provide the guidelines while exercising the power to grant ‘antici- patory bail’ to a person apprehending arrest on such accusation, though they would not be strictly applicable. When a person apprehending arrest on an accusation of having committed contravention of any Rule or order made under the Rules applies to the Court for a direction under 438, the Court should not ordinarily grant him ‘anticipatory bail’ under that section unless a notice has been issued to the prosecution giving it an opportunity to oppose the applica- tion and in case the contravention is of a Rule or order specialty notified in this behalf, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such contravention. These would be reasonably effective safeguards against improper exercise of power of granting ‘anticipatory bail’ which might in conceivable cases turn out detrimental against public interest. When we say this, we must, of course, make it clear that we do not intend to lay down that in no case should an exparte order of ‘anticipatory bail’ be made by the Court. There may be facts and circumstances in a given case which may justify the making of an exparte interim order of ‘anticipatory bail’ but in such an event, a short dated notice should be issued and the final order should be passed after giving an opportunity to the prosecution to be heard in opposition. Here in the present case, the High Court took the view, following its earlier decisions in Criminal Revision No. 285 of 1973 (State v. Shantilal & Ors.) and Criminal Revision No. 286 of 1973 (State v. Manoharlal & Ors.), that the Court of Session had no jurisdiction to grant ‘anticipatory, bail’ by reason of Rule 184 and on this view, did not consider the application of the appellant for ‘anticipatory bail’ on merits. Since we are taking the view that the power con- ferred on a Court of Session or a High Court under section 438 to grant ‘anticipatory bail’ is not taken away by Rule 184 in case of persons apprehending arrest on an accusation of having committed contravention of any Rule or order made under the Rules, we must set aside the order of the High Court and send the matter back to the High Court for decid- ing the appellant’s application for ‘anticipatory bail’ on merits.

We accordingly allow the appeal, set aside the order made by the High Court and remand the case to the High Court with a direction

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that the application of the appellant for ‘anticipatory bail’ should be decided on merits after hearing the parties in the light of the observations made in this judgment. The parties are directed to appear before the High Court on 25 November 1976 so as to enable the High Court to take up the application for hearing. The appellant is already on bail and we direct that until his application for ‘anticipatory bail’ is disposed of by the High Court, he will continue on bail.

FAZAL ALI, J. This is an appeal by special leave against the order of the Madhya Pradesh High Court dated September 30, 1975 dismissing the application of the petitioner in limine. In fact the High Court of Madhya Pradesh, following an earlier decision of that Court given in Criminal Revision No. 285/74 and No. 286/74 dated April 15, 1975, held that as the matter was fully covered by those two authorities, the petition merited summary rejection. Thereafter the peti- tioner field an application for special leave which, having been granted, the appeal has now been placed before us. The circumstances under which the appeal arises may be detailed as follows:

The petitioner was a businessman of Nowgong Cantonment carrying of the retail business of Kirana merchandise and other things for a large number of years and had been maintaining proper accounts regarding the sale of kero- sene-oil and other articles. On July 23, 1975 a Magistrate along with the Food Inspector and a number of police officers visited the shop of the petitioner and took posses- sion of his account books and started verifying their cor- rectness. The same party made a second visit to the shop of the petitioner on July 25, 1975 and took away Bahi-Khatas and Rokar kept in the shop of the petitioner. After prepar- ing a seizure memo, a copy of the same was given to one Nathuram a relation of the petitioner, the petitioner being absent on that day. Having regard to these facts, the petitioner who had a genuine apprehension that he might be arrested, for contravention of the provisions of the Defence of India Act and the Rules made thereunder which admitted- ly was a non-bailble offence, approached the Sessions Judge for passing an order for anticipatory bail under the provi- sions of s. 438 of the Code of Criminal Procedure, 1973. This application having been rejected by the Sessions Judge, the petitioner moved the High Court and that too unsuccess- fully. Hence this appeal by special leave. We are not at all concerned in this appeal regarding the merits of the case because the High Court has not gone into merits but has rejected the application on the ground that it was not maintainable as held by the Division Bench deci- sion of the Madhya Pradesh High Court. Thus the only point which arises for consideration before us is: “Whether the provisions of s. 438 of the Code of Criminal Procedure relating to anticipatory bail stand overruled and repealed by virtue of r. 184 of the Defence and Internal

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Security of India Rules, 1971, or on the rule of harmonious interpretation of statutes r. 184 of the Defence and Internal Security of India, Rules, 1971 is not in any way incon- sistent with s. 438 of the Code of Criminal Procedure, 1973, and both the provisions can exist side by side.”

The Madhya Pradesh High Court has taken the view that the Defence and Internal Security 0f India Act, 1971–hereinaf- ter referred to as ‘the Act’ and the Defence and Internal Security of India Rules.1971-hereinafter referred to as ‘the Rules’ made thereunder being a sort of emergency legislation are special law which repeals and overrides the provisions of the Code of Criminal Procedure, 1973—herein after referred to as ‘the Code’–insofar as they are inconsistent with the provisions of the Rules. In other words, the High Court thought that in view of the express provisions of r. 184 (a) & (b) of the Rules, no question of anticipatory bail arose, and, therefore, s. 438 of the Code stood superseded insofar as offences under r. 184(a) & (b) were concerned Mr. V.M. Tarkunde learned counsel for the appellant has contended that the view taken by the Madhya Pradesh High Court legally erroneous and is based on a wrong interpreta- tion of the two provisions in question. He submitted that s. 438 of the Code. and r. 184 of the Rules cannot be read in isolation but in conjunction with the conditions laid down in r. 184 clauses (a) and (b) of the Rules and once this is done there would be no real inconsistency between the two provisions and the question of one repealing the other would not arise. Mr. Ram Panjwani, learned counsel for the respondent, however, supported the stand taken by the High Court of Madhya Pradesh and argued that having regard to the scheme of the Act and the Rules made thereun- der, this was a summary legislation with a completely exhaustive and self-contained Code and there was absolutely no justification for applying the provisions of the Code of Criminal Procedure which was the general law. In order to appreciate the contentions raised by coun- sel for the parties it may be necessary for us to examine the object and scheme of the Code as also of the Act and the Rules made thereunder particularly with respect to the impugned provisions. So far as the Act is concerned, this Act was passed by Act XLII of 1971 on December 4, 1971 at a time when the proclamation of emergency had already been issued by the President under el. (1) of Art. 352 of the Constitution. The preamble to the Act reads thus: “And whereas it is necessary to provide for special members to ensure the public safety and interest, the de- fence of India and civil defence and internal security and for the trial of certain offences and for’ matters connected therewith :”

It is, therefore. clear that the Act was meant to be a temporary measure in order to ensure public safety and interest and enable the Government to take immediate steps to protect the internal security

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and integrity of the country and for trial’ of offences committed under the Act or the Rules made thereunder. Sec- tion 34 of the Act is the provision which authorises the Central Government to make Rules under the Act and under s. 35 of the Act the Rules have to be laid before both Houses of Parliament with such modification or annulment as the Houses may be pleased to make. Section 36 of the Act gives colour of finality to certain orders passed by an authority which is not a Court. Section 37 of the Act runs thus: “37. The provisions of this Act or any rule made thereunder or any order made under any such rule shall have effect notwithstanding anything inconsistent

therewith contained in any enactment other than this Act or in any instrument having effect by virtue of any enactment other than this Act.”

This section thus expressly overrules or repeals any provision which is inconsistent with the Act or the Rules. Another important provision which must be noticed is s. 38 of the Act which runs thus:

“38. Any authority or person acting in

pursuance of this Act shall interfere with the ordinary avocations of life and the enjoyment of property as little as may be consonant with the purpose of ensuring the public safety and interest and the defence of India and civil defence and the internal security.”

The effect of s. 38 which contains a mandate to the authori- ty acting under the provisions of the Act from interfering with the ordinary avocations of life and enjoyment of property as little as possible clearly shows that the ri- gours of the Act have been softened to a great extent by limiting the actions of the authorities within the four corners of the express provisions of the Act. Legislature never intended that any drastic action should be taken by the authorities which may interfere with the liberty of the subject unless it was absolutely essential. We have re- ferred to this provision particularly because the question with which we are concerned involves the interpretation and applicability of s. 438 which relates to the liberty of the citizen visa vis the provisions of the Act and the Rules. Against the background of this important provision of the Act, we have to follow the rule of harmonious construction so as to avoid an interpretation which makes this provision (which is for protection of the liberty. of the citizen) come into conflict with the Act or the Rules made thereun- der, unless such intention is clearly expressed or implied by the Legislature. The Act further contains provisions for constitution of Special Courts to try particular type of offences, but the procedure is the same as provided for in the Code. As, however, no such Courts have been constituted in the State of Madhya Pradesh, it is not necessary for us to dilate on this point. Suffice it to say, that apart from the non obstante clause in r. 184 of the Rules, we are not concerned with any other provision of the Code which may have been repealed either directly or indirectly by r. 184. The question, therefore, that arises in this case is whether or not r. 184 of the Rules overrides the provisions of ss. 435 and 438 of the Code. In other words, we have to decide whether r. 184 of the

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Rules is in any way inconsistent with the provisions of ss. 436 and 438 of the Code. It may be mentioned here that even the offences created under the Act or the Rules made there- under are to be tried under the general law, namely, the Code with certain modifications, and even in respect of these offences the general law has not been repealed. The Defence of India Act was amended by Ordinance 5 of 1975 dated June 30, 1975 which was later replaced by Act XLII of 1971 dated August 1, 1975 and the Act was now known as the Defence and Internal Security of India Act, 1971, Rule 184 of the Rules runs thus:

“184. Notwithstanding anything

contained in the Code of Criminal Procedure, 1898 (V of 1898), no person accused or convicted of a contravention of these Rules or orders made thereunder shall, if in custody, be released on bail or his own bond unless :– (a) the prosecution has been given an opportunity to oppose the application for such release, and

(b) where the prosecution opposes the application and the contravention is of any such provision of these Rules or orders made thereunder as the Central Government or the State Government may by notified order specify in this behalf the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such contravention.”

An analysis of this rule would reveal a few important features, namely:

(1) This provision does not in terms confer any power on any Court to pass orders for bail;

(2) it merely lays down certain conditions which have to be followed before an order for bail could be passed in favour of an accused; and

(3) that unlike s. 438 of the Code this rule applies not only to non-bailable offences but also to bailable offences.

The High Court was of the opinion that in view of this particular distinction between bailable and non-bailable offences which have been expressly made in s. 438 of the Code, and having regard to the conditions incorporated in r. 184(a)&(b), s. 438 of the Code is repealed by this rule as being inconsistent with it. We are, however unable to agree with the conclusion reached by the High Court for the reasons which we shall give hereafter.

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To begin with s. 438 of the Code applies only to non- bailable offences. Secondly, the only authorities which are empowered under this section to grant bail are the Court of Session or the High Court. In view of the fact that an order for anticipatory bail is an extraordinary remedy available in special cases, this power has been conferred on the higher echelons of judicial service, namely, the Court of Session or the High Court. Another important considera- tion which flows from the interpretation of s. 438 of the Code is that this section does not contain any guidelines for passing an order of anticipatory bail. We might, however, mention here that the term ‘anticipatory bail is really a misnomer, because what the section contemplates is not anticipatory bail, but merely an order releasing an accused on bail in the event of his arrest. It is manifest that there can be no question of bail, unless a person is under detention or custody. In these circumstances, there- fore, there can be no question of a person being released on bail if he has not been arrested or placed in police custo- dy. Section 438 of the Code expressly prescribes that any order passed under that section would be effective only after the accused has been arrested. The object which is sought to be achieved by s. 438 of the Code is that the moment a person is arrested, if he has already obtained an order from the Sessions Judge or the High Court, he would be released immediately without having to undergo the ri- gours of jail even for a few days which would necessarily be taken up if he has to apply for bail after arrest. Before, however, we dwell on the real concept of s. 438 of the Code, we would like to indicate the circumstances in which this section was added to the new Code of Criminal Procedure, 1973. Prior to the new Code there was no provi- sion for an order of anticipator), bail in the Code, and there appeared to be a serious divergence of judicial opin- ion on the question whether or not a Court had the power to pass an order for anticipatory bail. Some of the High Courts held that the Courts did possess the power, while the other High Courts held that the Court did not. It is not necessary for us now to decide as to which view is correct. The controversy that existed before has now been set at rest by enacting s. 438 in the new Code of Criminal Procedure. While the Bill in the Lok Sabha, Shri Ram Niwas Mirdha the concerned Minister detailed the various objects of the amendments and one of the observations made by him was that by virtue of the new amendment there was liberali- sation of bail provisions. The relevant part in paragraph-2 of the Statement of Objects and Reasons pub- lished in the Gazette of India Extraordinary Part II-Section 2 dated December 10, 1970 at p. 1309 runs thus: “2. The first Law Commission presented its Report (the Fourteenth Report) on the Reform of Judicial Administration, both civil and criminal, in 1958; it was not concerned with detailed scrutiny of the provisions of the Code of Criminal Procedure, but it did make some recommendation in regard to the law of criminal procedure, some of which required amendments to the Code.”

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Apart from this, the clause-wise objects and reasons with respect to s. 438 of the Code (which was clause 447 in the Bill) run thus:

“As recommended by the Commission, a new provision is being made enabling the superior courts to grant anticipatory bail, i.e., a direction to release a person on bail issued even before the person is arrested.. With a view to avoid the possibility of the person hampering the investigatition, special provision is being made that the court granting anticipatory bail may impose such conditions as it thinks fit. These conditions may be that a person shall make himself available to the Investigating Officer as and when required and shall not do anything to hamper investigation.”

This clause clearly refers to the recommendations made by the Law Commission in its Forty-first Report which read as follows.

“39.9. Though there is a conflict of judicial opinion about the power of a Court to grant anticipatory ball, 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 some-times 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.”

In its Forty-eighth Report the Law Commission while commenting on the bail provision observed in paragraph 31 as follows:

“31. The Bill introduces a provision for the grant of anticipatory bail. This is substantially in accordance with the recommendations made by the previous Commission (41st Report). We agree that this would be a useful addition, though we must add that it is in very exceptional cases that such a power should be exercised.

We are further of the view that in order to ensure that the provision is not put to abuse at the instance of unscrupulous petitioners, the final order should be made only after notice to the public prosecutor. The initial order should only be an interim one. Further the relevant section should make it clear that the direction can be issued only for reasons to be recorded, and if the Court is satisfied that such a direction is necessary in the interests of justice.”

It would thus appear that while the Law Commission recommended that provision for an order of anticipatory bail to be effective when

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a person is arrested should be made at the same time it stressed that this being an extra-ordinary power should be exercised sparingly and only in special cases. It also recommended that this power should not be exercised without giving notice to. the other side. We think, this is why the Legislature has entrusted this power to high authorities like the Sessions Judge and the High Court and we also feel that in the interests of justice it would be desirable if a final order is made only after hearing the prosecution. Although this condition is not mentioned in s. 438 of the Code, but having regard to the setting in which the section is placed and the statement of the objects and reasons which is actually based on the recommendations of the Law Commis- sion, we think that rule of prudence requires that notice should be given to the other side before passing a final order for anticipatory bail so that wrong order of anticipa- tory bail is not obtained by a party by placing incorrect or misleading facts or suppressing material facts. We hope that in future the Courts will exercise this power keeping our observations in view. We may of course point out that in emergent cases the Courts may make an interim order of anticipatory bail before issuing notice to the other side. From what has been said it is clear that the intention of the legislature in enshrining the salutary provision in s. 438 of the Code which applies only to non-bailable offences was to see that the liberty of the subject is not put in jeopardy on frivolous grounds at the instance of unscrupu- lous or irresponsible persons or officers who may some times be in charge of prosecution. Now if the intention of the Legislature were that the provisions of s. 438 should not be applicable in cases falling within r. 184, it is diffi- cult to see why the Legislature should not have expressly saved r. 184 which was already there when the new Code of 1973 was enacted and excepted r. 184 out of the ambit of s.

438. In other words, if the intention of provision of r. 184 of the Rules were to override the provisions of s. 438 of the Code, then the Legislature should have expressly stated in so many words that the provisions of s. 438 of the Code shall not apply to offences contemplated by r. 184 of the Rules. There is, however, no such provision in the Code. In these circumstances, therefore, the Legislature in its wisdom left it t9 the Court to bring about a harmonious construction of the two statutes so that the two may world. and stand together. This is also fully in consonance with the principles laid down by this Court in construing the non obstante clauses in the statutes. In Northern India Caters Pvt. Ltd & Anr. v. State of Punjab and Anr.,(1) this Court observed thus:

“A latter Act which confers a new right would repeal an earlier right if the fact of the two rights co-existing together produces inconvenience, for, in such a case it is legitimate to infer that the legislature did not intend such a consequence. If the two Acts are general enactments and the latter of the two is couched in negative terms, the inference would be that the earlier one was impliedly repealed. Even if the latter statute is in affirmative terms, it is often found to involve that negative which makes it fatal to the earlier enactment.”

(1) [1967] 3 S.C.R. 399.

6 –1458SCI/76

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Thus one of the main tests pointed out by the Court was that the Court while interpreting the statutes concerned must infer repeal by the latter statute only if it causes incon- venience or where it is couched in affirmative or negative terms. Maxwell on Interpretation of Statutes, 11th Edn., p. 162 observes:

“A sufficient Act ought not to be held

to be repealed by implication without some strong reason.”

We think it is reasonable to presume that the Legislature does not intend to keep contradictory enactments on the statute book and, therefore, a construction should be ac- cepted which offers an escape from it. Similarly in an earlier case in Aswini Kumar Ghosh and Anr v.Arabinda Bose and Anr(1) this Court laid down the proper approach in interpreting a non obstante clause and observed thus: “It should first be ascertained what the enacting part of the section provides on a fair construction of the words used according to their natural and ordinary meaning, and the non obstante clause is to be understood as operating to set aside as no longer valid anything contained in relevant existing laws which is inconsistent with the new enactment.” Having regard to the principles enunciated above, we feel that there does not appear to be any direct conflict between the provisions of r. 184 of the Rules and s. 438 of the Code. However, we hold that the conditions required by r. 184 of the Rules must be impliedly imported in s. 438 of the Code so as to form the main guidelines which have to be followed while the Court exercises its power under s. 438 of the Code in offences contemplated by r. 184 of the Rules. Such an interpretation would meet the ends of justice, avoid all possible anomalies and would at the same time ensure and protect the liberty of the subject which appears to be the real intention of the Legislature in enshrining s. 438 as a new provision for the first time in the Code. We think that there is no real inconsistency between s. 438 of the Code and r. 184 of the Rules and, therefore, the non obstante clause cannot be interpreted in a manner so as to repeal or override the provisions of s. 438 of the Code in respect of cases where r. 184 of the Rules applies. We have already stated that s. 438 of the Code does not contain the conditions on which the order for anticipatory bail could be passed. As section 438 immediately follows s. 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 s. 438 of the Code. Otherwise the result would be that a person who is accused of murder can get away under s. 438 by obtaining an order for anticipatory bail without the necessity of proving that there were reasonable grounds for believing that he was not guilty of offence punishable with death or imprisonment for life. Such a course would render the provisions of s. 437 nugatory and will give a free licence to the accused persons charged with non-bailable offences to get easy bail by approaching the Court under s. 438 and by passing s. 437 of the Code. This, we

(1) [1953] S.C.R. 1.

67

feel, could never have been the intention of the Legisla- ture. Section 438 does not contain unguided or uncanalised powers to pass an order for anticipatory bail, but such an order being of an exceptional type can only be passed if, apart from the conditions mentioned in s. 437, there is a special case made out for passing the order. The words “for a direction under this section” and “Court may, if it thinks fit, direct” clearly show that the Court has to be guided by a large number of considerations including those mentioned in s. 437 of the Code. When a Court is dealing with of- fences contemplated by r. 184 of the Rules, then it is obvious that though the offences are not punishable with death or imprisonment for life so as to attract the provi- sions of s. 437, the conditions laid down by r. 184 of the Rules would have to be complied with before an order Under s. 438 of the Code could be passed. In other words, the words “for a direction under this section” and “Court may, if it thinks fit, direct” would impliedly contain a statuto- ry mandate to the Court in the shape of conditions mentioned in clauses (a) and (b) of r. 184 of the Rules, viz., (1 ) that an opportunity would be given to the prosecution to oppose the application for anticipatory bail; and (2) the Court must be satisfied that there are reasonable grounds for believing that the accused is not guilty of the contra- vention of the Rules. While giving finding on this the Court will have to take into consideration that under the provi- sions of the Rules once contravention is alleged the onus lies on the accused to prove that there has been no such contravention. If we construe the two provisions in this manner, then there would be really no inconsistency between s. 438 of the Code and r. 184 of the Rules and both the provisions can co-exist without coming into conflict with each other. Further more, r. 184 would apply the moment the accused person is taken in custody and as an order passed under s. 438 of the Code cannot be effective until the person is taken in custody. It is therefore obvious that the conditions mentioned in r. 184 clauses (a) & (b) start applying the moment the accused is taken in custody, and if an order under s. 438 of the Code has been passed in his favour he would be released at once.

The Legislature never intended that while in Such seri- ous offences like murder or those punishable with death or imprisonment for life the accused should have the facility of an order of anticipatory bail, in offences of a less severe kind he should be denied benefit of s. 438 of the Code is by invoking r. 184 of the Rules. The learned counsel for the appellant strongly relied on a decision of the Calcutta High Court in Badri Prasad v. State(1) where the Court was considering the provisions of s. 13A of the Essential Supplies (Temporary Powers) Act, 1946 which were couched almost in the same language as r. 184(b) of the Rules and the Court pointed out that there was no conflict between s. 13A and s. 497 of the Code of Crimi- nal Procedure and s. 13A can only be regarded as an exten- sion of s. 497 of the Code by incorporating the conditions mentioned therein in s. 497 of the Code. In this connection the Court observed as follows:

“Under s. 497, Criminal P.C., therefore, the Court has also to consider reasonable grounds for belief …… But in a

(1) A.I.R. [1953] Cal. 28,

68

case, however, under s. 13A, Essential Supplies Act, it is the converse and more difficult case of reasonable ground for believing that the applicant for bail is not guilty …. Its effect is that s. 13A, Essential Supplies Act, represents a new species of non-bailable offence with its own rules for bail and that section, therefore, is an extension of s. 497, Criminal P.C.”

As against this Mr. Ram Panjwani relied on a few deci- sions of the Madras, Bombay and Patna High Courts in support of the view that the previous section in the Defence of India Rules which was couched almost in the same language as r. 184 of the Rules was held to have overruled the provi- sions of s. 497 of the old Code of Criminal Procedure. Reliance was placed on In re V. Bhuvarha Iyengar(1) where the Court was dealing with r. 130A of the old Defence of India Rules and observed as follows:

“In respect of offences which come

within the rules framed under the Defence of India Act that Act governs all other statutory provisions and therefore the provisions of the Code of Criminal Procedure with regard to bail do not here apply if R. 130A is intra vires, which we hold it to be.”

This case is clearly distinguishable, because in the first place in the old Code of Criminal Procedure there was no provision for anticipatory bail at all and, therefore, the question that falls for consideration in the present case never arose in that case at all. Secondly, the Court has not considered the aspect which we have pointed out in the present case by holding that in view of the object of the new Code the provisions of r. 184 clauses (a) & (b) have to be impliedly imported into s. 438 of the Code. In these circumstances, therefore, this decision does not appear to be of any assistance to the counsel for the respondent. Reliance was then placed on a decision of the Bombay High Court in In re Surajlal Harilal Malumdar and others(2) and particularly to the following observations: “In my opinion the effect of that rule

is to repeal the provisions of S. 496, Criminal P.C., in so far as it divests the Court of its discretion in the matter of refusing bail in cases of bailable offences. All that R. 130A says in effect is that notwithstanding the provisions of S. 496 no person accused or convicted of a contravention of the rules under the Defence of India Act shall be released unless an opportunity is given to the prosecution to oppose the application for such release. There is nothing left to implication. The Legislature may impliedly repeal penal Acts by a later enactment like any other statute even if the repeal introduces stringency of procedure or takes away a privilege.”

Here also the Court does not expressly hold that the provi- sions of s. 496 were completely repealed by r. 130A of the old Defence of India Rules, but merely held that the said rule will be overruled only to the extent that the Court would have to give an opportunity to the prosecu- I,R. 1942 Mad. 221, 223. (2) A.I.R. 1943 Born. 82. 69

tion to oppose the application before granting.bail. This decision, therefore, does not take the view contrary to me one which we have taken in this case.

Lastly reliance was placed on a decision of the Patna High Court in Saltgram Singh and Ors v. Emperor(1) which also took almost the same view as the Bombay High Court. At any rate, these decisions have absolutely no bearing on the specific question which we are considering in this partic- ular case, because the provision of s. 438 of the Code is an absolutely new one and did not at all exist when the cases cited by the learned counsel for the respondent were decid- ed. We might like to indicate clearly that in the instant case we are only considering whether the provisions of r. 184 clauses (a) & (b) of the Rules are inconsistent with s. 438 of the Code and the question whether provisions of r. 184 are inconsistent with any other provision of the Code does not fall for determination in this case. Lastly we might point out that the scope of r. 184 of the Rules is wider than that of s. 438 of the Code inasmuch as while s. 438 can be invoked only in cases of non-bailable offences and not in cases of bailable offences, r. 184 of the Rules would apply not only to non-bailable offences but also to bailable offences and in these circumstances, there- fore, the conditions mentioned in r. 184 would have to be impliedly imported into s. 436 of the Code which deals with orders for bail regarding bailable offences. In other words, the position is that where a person who is an accused for offences contemplated by r. 184 of the Rules and which are bailable, yet he cannot get bail as a matter of right under s. 436 of the Code unless the Court complies with the conditions laid down in r. 184 clauses (a) and (b). We have already made it clear that so far as the question of anticipatory bail is concerned that does not apply to bailable offences at all. We have, therefore, interpreted the provisions of ss. 436 and 438 of the Code and r. 184 of the Rules in a harmonious manner so as to advance the object of both the statutes and to effectuate the intention of the Legislature.

Mr. Panjwani submitted that as the offences under the Rules are socio-economic offences which deserve to be curbed and dealt with severely, that is why, such a provision like r. 184 has been enshrined in the Rules. That might be so, but then on the interpretation placed by us it does not in any way soften the rigours imposed by the Act or the Rules made thereunder for such offences, because in any case the Court would have to comply with the conditions mentioned in clauses (a) & (b) of r. 184. The argument of the respondent may assume some importance if r. 184 of the Rules had contained a provision by which no bail under any circumstances could be granted to persons accused of of- fences contemplated by this provision. This, however, is not the case here.

For the reasons given above, we hold as under: (1) that s. 438 of the Code has not been repealed or overruled by r. 184 of the Rules but the two have

(1) A.I.R. 1945 Pat. 69.

70

to be read harmoniously without interfering with the sphere contemplated by each of those provisions. In fact r. 184 of the Rules is only supplemental to s. 438 of the Code and contains the guidelines which have to be followed by the Court in passing orders for anticipatory bail in relation to cases covered by r. 184 of the Rules;

(2) that there is no real inconsistency between s. 438 of the Code and r. 184 of the Rules;

(3) that s. 438 of the Code is an extra-ordinary remedy and should be resorted to only in special cases. It would be desirable if the Court before passing an order under s. 438 of the Code issues notice to the prosecution to get a clear picture of the entire situation; and

(4) that in cases covered by r. 184 of the Rules the Court exercising power under s. 436 or s. 438 of the Code has got to comply with the conditions mentioned in clauses (a) & (b) of r. 184 and only after the Court has complied with those conditions that an

order under any of these sections of the Code in respect of such offences could be passed.

For these reasons, therefore, we think that the High Court of Madhya Pradesh in the instant case, as also in its Division Bench decisions in Criminal Revision No. 285/74 (State v. Shantilal & Others) and Criminal Revision No. 286/74 (State v. Manoharlal & Ors) mentioned in the order under appeal, was wrong in law, and therefore these deci- sions are hereby overruled.

I, therefore, concur with the judgment proposed by my brother Bhagwati, J., and accordingly allow this appeal, set aside the order of the High Court dismissing the application of the petitioner in limine and direct the High Court to re-admit the petition and decide the same on merits in the light of the observations made by us. The parties are di- rected to appear before the High Court which shall hear the petition and dispose it of. Until the decision of the High Court on merits, the appellant will continue on bail. P.B.R. Appeal

allowed.

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IN THE HIGH COURT OF DELHI AT NEW DELHI + BAIL APPLN. Nos. 1355/2009, 1588/2009 &1926/2009 % Reserved on: 11th December, 2009 Date of Decision: 14th December, 2009 # DEEPA DEVI ….. Petitioners DAYA RAM and

JAGDISH

Through:Mr. S.D. Singh and Mr. Rahul

Kumar Singh, Advocates

!

versus

$ STATE OF NCT OF DELHI ….. Respondent Through:Mr. Amit Sharma, APP for the

State, Insp. J.S. Mishra, PS Burari.

* CORAM:

HON’BLE MR. JUSTICE V.K. JAIN

1. Whether the Reporters of local papers

may be allowed to see the judgment? Yes

2. To be referred to the Reporter or not? Yes

3. Whether the judgment should be

reported in the Digest? Yes : V.K. JAIN, J.

1. These are three petitions for grant of anticipatory bail. The petitioner Daya Ram is the father-in-law, Deepa Devi is the mother-in-law and Jagdish is the brother-in-law of the deceased Savita, who was married to Purshottam on 13th April, 2006 and BAIL APPLN. Nos. 1355/2009, 1588/2009 &1926/2009 Page 1 of 9 who committed suicide on 31st May, 2009, within 7 years of her marriage.

2. Prakash, brother-in-law of the deceased Savita was granted anticipatory bail by this court on 11.12.2009.

3. As per the status report filed by the respondent, the evidence collected during investigation shows that the deceased Savita was physically and mentally tortured by the petitioners as well as her husband. It has been further stated in the status report that during the course of investigation raids were conducted but all of them are absconding and concealing themselves deliberately in order to avoid investigation and arrest. The bail application of the petitioners have already been dismissed by the learned Addl. Sessions Judge.

4. During the course of arguments, the learned Addl. Public Prosecutor placed on record the photocopy of the process issued by Shri J.P. Nahar, Metropolitan Magistrate, Delhi against the petitioners Deepa Devi, Daya Ram and Jagdish under section 82 of the Code of Criminal Procedure. The report of the process server shows that after public proclamation, one copy of the process was affixed on the spot and another copy was affixed on the notice board of Tis Hazari Courts. One copy of the process BAIL APPLN. Nos. 1355/2009, 1588/2009 &1926/2009 Page 2 of 9 was also affixed at the gate of ISBT, Kashmiri Gate. The learned MM had also directed that the process issued against the petitioner under section 82 of Cr.PC be also executed by way of publication in English and Hindi national newspapers. Though the copy of the newspaper publishing proclamation has not been placed on record, the learned Addl. Public Prosecutor, on instructions from the Investigating Officer who was present in the court, stated that the proclamation has been duly published in the newspaper in terms of the order of the learned MM. A copy of the order issued by the office of the Commissioner of Police, Delhi seeking publication of proclamation in Times of India and Amar Ujala has also been placed on record. Though the learned counsel for the petitioners disputed the issue and publication of the process under section 82 of Cr.PC , considering the documents filed by the prosecution, I do not see any reason to disbelieve the statement made by the learned Addl. Public Prosecutor on instructions from the IO. I am, therefore, satisfied that a process under section 82 of Cr.PC was issued against the petitioners.

5. In my view, a person who is absconding despite rejection of his application for anticipatory bail by the court of Sessions and BAIL APPLN. Nos. 1355/2009, 1588/2009 &1926/2009 Page 3 of 9 despite issue and publication of process against him under section 82 of Cr.PC, is not entitled to grant of anticipatory bail save in an exceptional case, justifying departure from this principle. But for existence of peculiar and special facts and circumstances of a given case, the Court would not be justified in considering the anticipatory bail application of such a person on merits. A person who is found to be absconding, ordinarily, is not entitled to grant of such a discretionary relief. He must surrender before the concerned court and seek regular bail. If anticipatory bail is granted to a person who is evading the process of law by absconding, despite rejection of his petition for grant of anticipatory bail and publication of proclamation against him under section 82 of Cr.PC, that would encourage the criminals to go underground, evade the process of law by adopting dubious means.

6. In Jagtar Singh vs. Satendra Kaur 2002(6) Scale, the Hon’ble Supreme Court observed that normally when the accused are absconding, there is no question of granting anticipatory bail or regular bail. In State of Maharashtra vs. Mohd. Sajid Hussain 2008(1) SCC (Crl.) 176, the Hon’ble Supreme Court, while examining the principles governing grant of anticipatory bail, BAIL APPLN. Nos. 1355/2009, 1588/2009 &1926/2009 Page 4 of 9 held that one of the four factors relevant for considering the application for grant of anticipatory bail is the possibility of the applicant, if granted anticipatory bail fleeing from justice. If a person is found to be absconding despite raids conducted by the police, benefit of anticipatory bail by the Sessions court and issue and publication of process against him under section 83 of Cr.PC, the prosecution would not be unjustified in claiming that no anticipatory bail is granted to such a person who is not likely to attend the trial and may flee from justice. Therefore, in the absence of exceptional and peculiar circumstances, the court would not be justified in granting anticipatory bail to such a person.

7. After the order had been reserved, the learned counsel for the petitioners has, in the afternoon, submitted photocopies of the following judgments, without supplying copies or list of judgments to the Addl. Public Prosecutor:

i). JT 2008 (7) SC 407 -Suresh Chander Raman Lal vs. State of Gujarat & Anr.

ii). 98(2002) DLT 181 – Dalmiya Resorts Int. Pvt. Ltd. vs. Deepa Gupta.

iii). 93(2001) DLT 804 – Sunil Kumar vs. State & Anr. BAIL APPLN. Nos. 1355/2009, 1588/2009 &1926/2009 Page 5 of 9 iv). 106 (2003) DLT 439 – G. Sagar Suri vs. State & Anr. v). 132 (2006) DLT 692 -Sanjay Chaturvedi vs. State. vi). 143(2007) DLT 744 -Rohit Kumar @Raju vs. State of NCT of Delhi; and

vii). Order dt. 8.4.2009 passed in Criminal Revision Petition No.645 of 2007 passed by this Hon’ble Court.

8. In the case of Sureshchandra Ramanlal (supra), the medical report on the health of the appellant showed that he was suffering from Lumbar Canal Stenosis with severe Lumber Sodalities of L2-3-4 and L5S1. He had sustained fracture of ankle for which he was operated. He was a known heavy diabetic on oral anti-diabetic and was severally obese. He was not in a position to do his daily activities without at least two assistants and was absolutely bad ridden. There were 49 accused in the case and each one of them had already been enlarged on bail. The charge against the appellant was under section 406,409,420,439,471 and120B of IPC. The Chairman, Vice-Chairman, Managing Director, a number of officers and 30 loanees of the bank had been enlarged on bail. In the facts and circumstances of the case, more particularly having regard to the health of the appellant, anticipatory bail was granted to him. The facts of the BAIL APPLN. Nos. 1355/2009, 1588/2009 &1926/2009 Page 6 of 9 present case are altogether different. None of the petitioners is suffering from such an acute illness. Moreover, in the present case, the process issued against the petitioners under section 82 Cr.PC has already been executed by proclamation, affixation and publication and has not been challenged in any proceedings.

9. In the case of Dalmiya Resorts Int. Pvt. Ltd.(supra) this Court noted that absconding does not necessarily imply change of place and the petitioner being a company the question of absconding does not exist. This was the case of non-performance of section 82(1) and (2) of Cr.PC and the process was issued against the accused persons without noticing the report of their warrants. The judgment has absolutely no applicability to the facts and circumstances of the present case. Moreover, the process issued under section 82 of Cr.PC is not under challenge before this court.

10. In the case of Sunil Kumar (supra), no effort had been made to serve the warrant on the address given in the FIR and the court did not record satisfaction that the petitioner was concealing himself. In these circumstances the order issuing proclamation was set aside. Again the judgment has no application to the present case.

BAIL APPLN. Nos. 1355/2009, 1588/2009 &1926/2009 Page 7 of 9

11. In G. Sagar Suri (supra), this Court observed that it is mandatory for the Metropolitan Magistrate to issue summons before issuing coercive process of warrant of arrest and initiating process under section 82 and 83 of Cr.PC. Again this judgment has no applicability as the petitioners have not filed any petition challenging the process under section 82 of Cr.PC

12. In the case of Sanjay Chatruvedi(supra), the petitioner was not absconding and was in fact appearing through his counsel. In these circumstances, this court took the view that non-bailable warrant could not have been issued and process under section 82 and 83 of Cr.PC could not have been issued against him. The facts of the present case are altogether different.

13. In the case of Rohit Kumar(supra) this court held that an attachment warrant could be issued only after issuance of proclamation under section 82 Cr.PC and that there must be a report of absconding or concealment, before a process under section 82 can be issued. Again, this judgment is of no help to the petitioner as they have not challenged the process issued against them. This judgment does not help the petitioners in any manner.

14. In the case of Yogender Pratap Singh (supra) an effort was BAIL APPLN. Nos. 1355/2009, 1588/2009 &1926/2009 Page 8 of 9 made by the petitioner to appear through his counsel without seeking bail and his application for that purpose was rejected by the trial court. Again, this judgment has no applicability, in the facts of the present case.

15. For the reasons given in the preceding paragraphs, I am of the considered view that since the petitioners are absconding and these are no exceptional circumstances, entitling them to this relief, despite their being absconders, they are not entitled to anticipatory bail. The bail application Nos. 1355/2009, 1588/2009 and 1926/2009 are hereby dismissed.

V.K. JAIN,J

DECEMBER 14, 2009

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