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Anticipatory Bail

There are many misconceptions floating around regarding Anticipatory Bail. One such misconception is that a
498a case is an automatic arrest warrant. However, it does not necessarily have to be so. In 498A cases, the
moment you get an anticipatory bail, the police are eliminated as a factor and youve pretty much won the
most difficult part of this fight. Another misconception is that the filing of FIR is a must before getting
Anticipatory Bail. Again, this is simply not true.

Most of the times, lawyers dont fully understand the provision of anticipatory bail given in Section 438 of Cr.
P. C. This article tries to explain the meaning, usage, conditions applicable, regarding Anticipatory Bail with
the help of recent Supreme Court Judgments.

What is Anticipatory Bail?


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 Sessions 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.

As observed in Balchand Jain Vs. State of M.P., `anticipatory bail' means `bail in anticipation of arrest'.
The expression `anticipatory bail' is a misnomer inasmuch as it is not as if bail is presently granted by the
Court in anticipation of arrest. When a competent court grants `anticipatory bail', it makes an order that in
the event of arrest, a person shall be released on bail. 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.

Here is one important point to be kept in mind with regard to anticipatory bail:

The filing of First Information Report (FIR) is not a condition precedent to the exercise of power under
Section 438. The imminence of a likely arrest founded on a reasonable belief can be shown to exist even
if an FIR is not yet filed.

Here is the coverage from The Hindu


The Supreme Court of India explains the meaning of Anticipatory Bail and lays the conditions for granting it.
Here are the 9 guidelines as laid down by a constitution bench, which the Courts are required to keep in mind
while dealing with an application for grant of anticipatory bail:
i)

Though the power conferred under Section 438 of the Code can be described as of an extraordinary

character, but this does not justify the conclusion that the power must be exercised in exceptional cases only
because it is of an extraordinary character. Nonetheless, the discretion under the Section has to be
exercised with due care and circumspection depending on circumstances justifying its exercise.
ii) Before power under sub-section (1) of Section 438 of the Code is exercised, the Court must be satisfied
that the applicant invoking the provision has reason to believe that he is likely to be arrested for a nonbailable offence and that belief must be founded on reasonable grounds. Mere fear is not belief, for
which reason, it is not enough for the applicant to show that he has some sort of vague apprehension that
some one is going to make an accusation against him, in pursuance of which he may be arrested. The grounds
on which the belief of the applicant is based that he may be arrested for a non-bailable offence, must be
capable of being examined by the Court objectively. Specific events and facts must be disclosed by the
applicant in order to enable the Court to judge of the reasonableness of his belief, the existence of which is
the sine qua non of the exercise of power conferred by the Section.
iii) The observations made in Balchand Jains case (supra), regarding the nature of the power conferred by
Section 438 and regarding the question whether the conditions mentioned in Section 437 should be read into
Section 438 cannot be treated as conclusive on the point. There is no warrant for reading into Section 438, the
conditions subject to which bail can be granted under Section 437(1) of the Code and therefore, anticipatory
bail cannot be refused in respect of offences like criminal breach of trust for the mere reason that the
punishment provided for 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.
iv) No blanket order of bail should be passed and the Court which grants anticipatory bail must take care to
specify the offence or the offences in respect of which alone the order will be effective. While granting relief
under Section 438(1) of the Code, appropriate conditions can be imposed under Section 438(2) so as to
ensure an uninterrupted investigation. One such condition can even be that in the event of the police
making out a case of a likely discovery under Section 27 of the Evidence Act, the person released on bail
shall be liable to be taken in police custody for facilitating the recovery. Otherwise, such an order can
become a charter of lawlessness and a weapon to stifle prompt investigation into offences which could not
possibly be predicated when the order was passed.
v) The filing of First Information Report (FIR) is not a condition precedent to the exercise of power
under Section 438. The imminence of a likely arrest founded on a reasonable belief can be shown to exist
even if an FIR is not yet filed.
vi) An anticipatory bail can be granted even after an FIR is filed so long as the applicant has not been
arrested.

vii) The provisions of Section 438 cannot be invoked after the arrest of the accused. After arrest, the
accused must seek his remedy under Section 437 or Section 439 of the Code, if he wants to be released on
bail in respect of the offence or offences for which he is arrested.
viii) An interim bail order can be passed under Section 438 of the Code without notice to the Public
Prosecutor but notice should be issued to the Public Prosecutor or to the Government advocate forthwith
and the question of bail should be re-examined in the light of respective contentions of the parties. The adinterim order too must conform to the requirements of the Section and suitable conditions should be imposed
on the applicant even at that stage.
ix) Though it is not necessary that the operation of an order passed under Section 438(1) of the Code be
limited in point of time but the Court may, if there are reasons for doing so, limit the operation of the order
to a short period until after the filing of FIR in respect of the matter covered by the order. The applicant
may, in such cases, be directed to obtain an order of bail under Section 437 or 439 of the Code within a
reasonable short period after the filing of the FIR.
Here is the judgment:
SAVITRI AGARWAL & ORS. -- APPELLANT (S)
VERSUS
STATE OF MAHARASHTRA & ANR. -- RESPONDENT (S)
JUDGMENT: D.K. JAIN, J.
Leave granted.
The appellants herein are the mother-in-law, father- in-law, husband and the younger brother of the father-inlaw of the deceased- Laxmi. They are accused of having committed offences punishable under Sections
498A, 304-B read with Section 34 of the Indian Penal Code, 1860 (for short `the IPC') and Sections
3 and 4 of the Dowry Prohibition Act, 1961.
Material facts, leading to the filing of these appeals, are as follows: The deceased-Laxmi got married to
appellant No.3 on 26th January, 2006. On 13th October, 2006, they were blessed with a baby boy. On
6th December, 2007 at about 4.30 p.m., appellant No.2 (father-in-law) is stated to have heard the cries of
Laxmi and when he rushed to the second floor of the house, he saw her burning. He tried to douse the
fire. Laxmi told him that her son was lying in the bathroom. He rushed to the bathroom and found that
the child also had burns. Laxmi and her child were removed to the hospital. At about 6.40 p.m., her
statement was recorded by the Executive Magistrate wherein she stated that she and her son caught
fire when she was pouring kerosene oil in the lamp which accidentally fell down; the oil got spilled
over and both of them got burnt. At about 10.55 p.m., the minor child expired. On receiving the
intimation, parents of Laxmi reached the hospital at about 11.30 p.m. the same night. On 7th December,
2007, at about 1.40 p.m. another statement of Laxmi was recorded by the Executive Magistrate
wherein again she reiterated that she had got burnt accidentally.
On 8th December, 2007, father of Laxmi lodged a complaint with Police against the appellants, inter alia,
alleging that after the marriage of his daughter on 26th January, 2006, the appellants were torturing her
for not meeting dowry demand of Rs.2 lakhs and earlier on 15th July, 2006, due to torture she had left
the matrimonial home, intending to commit suicide but due to intervention of the relatives, she returned

back. On the said complaint, the police registered an FIR against the appellants for offences under
Section 498A read with Section 34, IPC and Sections 3 and 4 of the Dowry Prohibition Act, 1961.
On 6th December, 2007 the appellants applied for grant of anticipatory bail before the Sessions Judge,
Amravati, who, vide order dated 10th December, 2007, initially granted interim protection to them
from arrest till the next date of hearing i.e. 17th December, 2007. On 16th December, 2007, Laxmi
expired and offence under Section 304-B IPC came to be added against the appellants. On 18th
December, 2007, after hearing both sides and upon taking into consideration the said two dying
declarations made by the deceased - Laxmi, statements of the complainant and witnesses and after
perusing the case diary, the learned Sessions Judge confirmed the anticipatory bail granted to the
appellants.
Aggrieved, the State of Maharashtra and the complainant filed petitions before the High Court for cancellation
of anticipatory bail granted to the appellants. As noted earlier, by the impugned order, the High Court
has cancelled the anticipatory bail granted to the appellants, on the ground that the Sessions
Judge had failed to apply his mind to certain vital circumstances viz. - absence of mention of
lantern and match stick in the panchnama; necessity of lantern and its lighting at 4 p.m. in the
afternoon when the house was equipped with an inverter; the daughter-in-law doing such risky
work with one year old child, particularly when elders in the family were present in the house and
had everything been well in the house, there was no occasion for the parents of the deceased to
implicate her in-laws. Inter alia, observing that the evidence, which directly involved the appellants, had
been ignored, rendering the order passed by the Sessions Judge perverse, as noted above, the High Court
has set aside the said order. The High Court has also noted that the offences complained of, being of
serious nature, there was no ground to grant anticipatory bail to the appellants. Being aggrieved,
the appellants are before us in these appeals.
The appellants contended that the High Court has failed to appreciate the factual background of the case,
particularly the fact that in both the dying declarations recorded by the Executive Magistrate, the
deceased had not levelled any allegation against the appellants for demanding any dowry or for
torturing her for any other purpose. It was strenuously urged that the second dying declaration
recorded on 7th December, 2007 at about 1.40 p.m. was in the presence and perhaps at the
instance of the father of the deceased, who admittedly had arrived in the hospital on 6th
December, 2007 at 11.30 p.m., yet the deceased did not level any allegation against the appellants.
Learned counsel argued that the anticipatory bail having been granted by the Sessions Judge upon
consideration of the relevant material placed before him by the prosecution, viz. the dying
declarations, the statements recorded by the investigating officer and the case diary, in the absence
of any complaint by the Investigating Officer that the appellants were not cooperating in the
investigations after the grant of interim protection on 10th December, 2007, or that they had misused
the anticipatory bail granted to them, there was no other overwhelming circumstance before the High
Court, warranting interference with the judicial discretion exercised by the Sessions Judge and
cancellation of bail.
Section 438 of the Code confers on the High Court and the Court of Session, the power to grant `anticipatory
bail' if the applicant has `reason to believe' that he may be arrested on accusation of having committed a
non-bailable offence. The expression `anticipatory bail' has not been defined in the Code. But as
observed in Balchand Jain Vs. State of M.P., `anticipatory bail' means `bail in anticipation of arrest'.
The expression `anticipatory bail' is a misnomer inasmuch as it is not as if bail is presently granted
by the Court in anticipation of arrest. When a competent court grants `anticipatory bail', it makes an
order that in the event of arrest, a person shall be released on bail. 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. The Court went on to observe that the power of granting `anticipatory bail' is
somewhat extraordinary in character and it is only in `exceptional cases' where it appears that a person

might be falsely implicated, or a frivolous case might be launched against him, or "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" that such power may be exercised. The power being rather
unusual in nature, it is entrusted only to the higher echelons of judicial service, i.e. a Court of
Session and the High Court. Thus, the ambit of power conferred by Section 438 of the Code was held
to be limited.
Keeping in view the reports of the Law Commission, Section 438 was inserted in the Code. Sub-section (1) of
Section 438 enacts 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 to the Court of Session
for a direction that in the event of his arrest he shall be released on bail, and the Court may, if it thinks
fit, direct that in the event of such arrest he shall be released on bail. Sub-section (2) empowers the High
Court or the Court of Session to impose conditions enumerated therein. Sub- section (3) states that if
such person is thereafter arrested without warrant by an officer in charge of a police station on such
accusation, he shall be released on bail.
In Gurbaksh Singh Sibbia (supra), the Constitution Bench was called upon to consider correctness or otherwise
of principles laid down by the Full Bench of High Court of Punjab & Haryana in Gurbaksh Singh
Sibbia Vs. State of Punjab. The Full Bench of the High Court summarized the law relating to
anticipatory bail as reflected in Section 438 of the Code and laid down eight principles which were to be
kept in view while exercising discretionary power to grant anticipatory bail.
The Court felt that wide discretionary power conferred by the Legislature on the higher echelons in the
criminal justice delivery system cannot be put in the form of straight-jacket rules for universal
application as the question whether to grant bail or not depends for its answer upon a variety of
circumstances, the cumulative effect of which must enter into the judicial verdict. A circumstance which,
in a given case, turns out to be conclusive, may or may not have any significance in another case. While
cautioning against imposition of unnecessary restrictions on the scope of the Section, because, in its
opinion, over generous infusion of constraints and conditions, which were not to be found in Section 438
of the Code, could make the provision constitutionally vulnerable, since the right of personal freedom,
as enshrined in Article 21 of the Constitution, cannot be made to depend on compliance with
unreasonable restrictions, the Constitution Bench laid down the following guidelines, which the Courts
are required to keep in mind while dealing with an application for grant of anticipatory bail:
i) Though the power conferred under Section 438 of the Code can be described as of an
extraordinary character, but this does not justify the conclusion that the power must be
exercised in exceptional cases only because it is of an extraordinary character. Nonetheless,
the discretion under the Section has to be exercised with due care and circumspection
depending on circumstances justifying its exercise.
ii) Before power under sub-section (1) of Section 438 of the Code is exercised, the Court must be
satisfied that the applicant invoking the provision has reason to believe that he is likely to be
arrested for a non-bailable offence and that belief must be founded on reasonable grounds.
Mere "fear" is not belief, for which reason, it is not enough for the applicant to show that he
has some sort of vague apprehension that some one is going to make an accusation against
him, in pursuance of which he may be arrested. The grounds on which the belief of the
applicant is based that he may be arrested for a non-bailable offence, must be capable of being
examined by the Court objectively. Specific events and facts must be disclosed by the applicant
in order to enable the Court to judge of the reasonableness of his belief, the existence of which
is the sine qua non of the exercise of power conferred by the Section.

iii) The observations made in Balchand Jain's case (supra), regarding the nature of the power
conferred by Section 438 and regarding the question whether the conditions mentioned in
Section 437 should be read into Section 438 cannot be treated as conclusive on the point. There
is no warrant for reading into Section 438, the conditions subject to which bail can be granted
under Section 437(1) of the Code and therefore, anticipatory bail cannot be refused in respect of
offences like criminal breach of trust for the mere reason that the punishment provided for 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.

iv) No blanket order of bail should be passed and the Court which grants anticipatory bail must take
care to specify the offence or the offences in respect of which alone the order will be effective.
While granting relief under Section 438(1) of the Code, appropriate conditions can be imposed
under Section 438(2) so as to ensure an uninterrupted investigation. One such condition can
even be that in the event of the police making out a case of a likely discovery under Section 27
of the Evidence Act, the person released on bail shall be liable to be taken in police custody for
facilitating the recovery. Otherwise, such an order can become a charter of lawlessness and a
weapon to stifle prompt investigation into offences which could not possibly be predicated
when the order was passed.
v) The filing of First Information Report (FIR) is not a condition precedent to the exercise of power
under Section 438. The imminence of a likely arrest 1 founded on a reasonable belief can be
shown to exist even if an FIR is not yet filed.
vi) An anticipatory bail can be granted even after an FIR is filed so long as the applicant has not been
arrested.
vii) The provisions of Section 438 cannot be invoked after the arrest of the accused. After arrest, the
accused must seek his remedy under Section 437 or Section 439 of the Code, if he wants to be
released on bail in respect of the offence or offences for which he is arrested.
viii) An interim bail order can be passed under Section 438 of the Code without notice to the Public
Prosecutor but notice should be issued to the Public Prosecutor or to the Government advocate
forthwith and the question of bail should be re-examined in the light of respective contentions of
the parties. The ad-interim order too must conform to the requirements of the Section and
suitable conditions should be imposed on the applicant even at that stage.
ix) Though it is not necessary that the operation of an order passed under Section 438(1) of the Code
be limited in point of time but the Court may, if there are reasons for doing so, limit the
operation of the order to a short period until after the filing of FIR in respect of the matter
covered by the order. The applicant may, in such cases, be directed to obtain an order of bail
under Section 437 or 439 of the Code within a reasonable short period after the filing of the
FIR.
At this juncture, it would be appropriate to note that the view expressed by this Court in Adri Dharan Das Vs.
State of W.B. to the effect that while dealing with an application under Section 438 of the Code, the
Court cannot pass an interim order restraining arrest as it will amount to interference in the
investigation, does not appear to be in consonance with the opinion of the Constitution Bench in Sibbia's
case (supra). Similarly, the observation that power under Section 438 is to be exercised only in

exceptional cases seems to be based on the decision in Balchand's case (supra), which has not been fully
approved by the Constitution Bench. On this aspect, the Constitution Bench stated thus:
"The observations made in Balchand Jain regarding the nature of the power conferred by Section 438
and regarding the question whether the conditions mentioned in Section 437 should be read into
Section 438 cannot therefore be treated as concluding the points which arise directly for our
consideration. We agree, with respect, that the power conferred by Section 438 is of an
extraordinary character in the sense indicated above, namely, that it is not ordinarily resorted to
like the power conferred by Sections 437 and 439. We also agree that the power to grant
anticipatory bail should be exercised with due care and circumspection but beyond that, it is not
possible to agree with the observations made in Balchand Jain in an altogether different context
on an altogether different point". (Emphasis Supplied)
It would also be of some significance to mention that Section 438 has been amended by the Code of Criminal
Procedure (Amendment) Act, 2005. The amended Section is more or less in line with the parameters laid
down in Sibbia's case (supra). However, the amended provision has not yet been brought into force.
Having considered the case in hand on the touchstone of the aforementioned parameters, we are of the opinion
that the High Court has committed a serious error in reversing the order passed by the Additional
Sessions Judge, Amravati granting anticipatory bail to the appellants. The learned Sessions Judge
passed the order after due consideration of the facts and circumstances of the case, in particular, the
two dying declarations, one recorded in the presence of the parents of the deceased and the
statements of the members of the Women Cell who had dealt with the case when on 15th July, 2006,
the deceased had left the house with intention to commit suicide and therefore, it cannot be said that
the judicial discretion exercised in granting anticipatory bail was perverse or erroneous, warranting
interference by the High Court. The order passed by the Sessions Judge was supported by reasons to
the extent required for exercise of judicial discretion in the matter of grant of bail. It may be true that
some of the circumstances, noticed by the High Court in the impugned order, viz., no reference to
lantern in the spot panchnama or the necessity of cleaning the lantern at 4 p.m. and/or availability of
an inverter in the house etc., could have persuaded the Sessions Judge to take a different view but it
cannot be said that the factors which weighed with the Sessions Judge in granting bail were
irrelevant to the issue before him, rendering the order as perverse. Moreover, merely because the
High Court had a different view on same set of material, which had been taken into consideration by
the Sessions Judge, in our view, was not a valid ground to label the order passed by the Sessions
Judge as perverse.
It also appears to us that the High Court has overlooked the distinction of factors relevant for rejecting bail in a
non-bailable case in the first instance and the cancellation of bail already granted. In Dolat Ram & Ors.
Vs. State of Haryana, while dealing with a similar situation where the High Court had cancelled the
anticipatory bail granted by the Sessions Judge in a dowry death case, this Court had observed that
rejection of bail in a non- bailable case at the initial stage and the cancellation of bail had to be
considered or dealt with on different basis. Very cogent and overwhelming circumstances are necessary
for an order directing the cancellation of bail already granted, which, in our opinion, were missing in
the instant case. Nothing was brought to our notice from which it could be inferred that the appellants
have not co-operated in the investigations or have, in any manner, abused the concession of bail granted
to them. As a matter of fact, Mr. Naphade, learned senior counsel representing the State, stated that
after grant of anticipatory bail to the appellants, no investigation in the case has been conducted.
For the foregoing reasons, in our judgment, the impugned order setting aside the anticipatory bail granted to
the appellants by the learned Additional Sessions Judge, cannot be sustained. Accordingly, the appeals
are allowed; impugned order is set aside and the order dated 18th December, 2007 passed by the
Additional Sessions Judge confirming the ad-interim anticipatory bail to the appellants, is restored. It

goes without saying that nothing said by the High Court or by us hereinabove shall be construed as
expression of any opinion on the merits of the case.
Both the appeals stand disposed of, accordingly.
..................................J. (D.K. JAIN)
..................................J. (R.M. LODHA)
NEW DELHI;
JULY 10, 2009.

BALCHAND JAIN Vs. STATE OF MADHYA PRADESH


Coram: BHAGWATI, P.N.
05/11/1976
,,,,

Subject
Defence and Internal Security of India Rules, 1971--r. 184--If supersedes S. 438. Cr. P.C. 1973.

Head Notes
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 contained
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 application 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 contravention.
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 approached the Sessions Judge for an anticipatory bail
under s. 438 of the Code of Criminal Procedure, 1973. The Sessions Judge rejected the application.
Dismissing his appeal, 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. This somewhat extraordinary power is exercised
only in exceptional cases and is entrusted to the higher echelons of the judicial service namely the court
of Sessions and the High Court. [55H]
2. Rule 184 postulates the existence of power in the court under the Code and seeks to place a curb
on its exercise 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. Rule 184 does
not lay down a self-contained code for grant of bail. 1t cannot be construed as displacing altogether 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]
An application under s. 438 is an application on an apprehension of arrest. On such an
application, the direction that may be given under s. 438 is that in the event of his arrest the applicant
shall be released on bail.
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 expressly stated that the provisions of s. 438 shall not apply to offences contemplated by r. 184.
Therefore, the Legislature 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.
3. (a) Section 438 does not contain unguided or uncanalised 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 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. 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 mentioned in r. 184, would
have to be impliedly imported into s. 436 which deals with orders for bail regarding bailable offences. [69D]

GURBAKSH SINGH SIBBIA ETC. Vs. STATE OF PUNJAB


Coram: CHANDRACHUD, Y.V. (CJ), BHAGWATI, P.N., UNTWALIA, N.L., PATHAK, R.S., REDDY,
O. CHINNAPPA (J)
09/04/1980
1980 AIR 1632, 1980( 3 )SCR 383, 1980( 2 )SCC 565, ,

Subject
Bail-Anticipatory Bail-Section 438 of the Code of Criminal Procedure Code, 1973
(Act 2 of
1974), Scope of Judicial balancing of personal liberty and the investigational powers of the Police, explained.

Head Notes
The appellant herein, Sri Gurbaksh Singh Sibbia was a Minister of Irrigation and Power in the Congress
Ministry of the Government of Punjab. Grave allegations of political corruption were made against him
and others whereupon applications were filed in the High Court of Punjab and Haryana under section 438

of the Criminal Procedure Code, praying that the appellants be directed to be released on bail, in the event of
their arrest on the aforesaid charges.
Considering the importance of the matter, a learned single Judge referred the applications to a Full
Bench, which by its judgment dated September, 13, 1977 dismissed them, after summarising, what according
to it is the true legal position, of s. 438 of the Code of Criminal Procedure, 1973 (Act 2 of 1974) thus:
(1)
The power under Section 438, Criminal Procedure Code, is of an extra-ordinary
character and must be exercised sparingly in exceptional cases only.
(2)
Neither Section 438 nor any other provision of the Code authorizes the grant of blanket
anticipatory bail for offences not yet committed or with regard to accusations not so far levelled.
(3)
The said power is not unguided or uncanalised but all the limitations imposed in the
preceding Section 437, are implicit therein and must be read into Section 438.
(4)
In addition to the limitations mentioned Section 437, the petitioner must make out
special case for the exercise of the power to grant anticipatory bail.
(5) Where a legitimate case for the remand of the offender to the police custody under Section
167(2) can be made out by the investigating agency or a reasonable claim to secure incriminating
material from information likely to be received from the offender under Section 27 of the Evidence
Act can be made out, the power under Section 438 should not be exercised.
(6)
The discretion under Section 438 cannot be exercised with regard to offences
punishable with death or imprisonment for life unless the Court at that very stage is satisfied
that such a charge appears to be false or groundless.
(7)
The larger interest of the public and State demand that in serious cases like economic
offences involving blatant corruption at the higher rungs of the executive and political power, the
discretion under Section 438 of the Code should not be exercised; and
(8) Mere general allegations of mala fides in the petition are inadequate. The court must be
satisfied on materials before it that the allegations of mala fides are substantial and the accusation
appears to be false and groundless.
The argument that the appellants were men of substance and position who were hardly likely
to abscond and would be prepared willingly to face trial was rejected by the Full Bench with the
observation that to accord differential treatment to the appellants on account of their status will
amount to negation of the concept of equality before the law and that it could hardly be contended that
every man of status, who was intended to be charged with serious crimes including the one under section 409
was punishable with life imprisonment, "was entitled to knock at the door of the Court for anticipatory
bail". The possession of high status, according to the Full Bench, is not only an irrelevant consideration for
granting anticipatory bail, but is, if anything, an aggravating circumstance. Hence the appeals by special
leave.
The appellants contended: (a) The power conferred by section 438 to grant anticipatory bail is "not
limited to the contigencies" summarised by the High Court; (b) The power to grant anticipatory bail
ought to be left to the discretion of the Court concerned, depending on the facts and circumstances of
each particular case; (c) Since the denial of bail amounts to deprivation of personal liberty; Courts

should lean against the imposition of


unnecessary restrictions on the scope of Section 438, when no
such restrictions are imposed by the legislature in the terms of that section (d) Section 438 is a
procedural provision which is concerned with the personal liberty of an individual who has not been
convicted of the offence in respect of which he seeks bail and who must be presumed to be innocent.
The validity of that section must accordingly be examined by the test of fairness and which is implicit in
Article 21. Imposition of an unfair or unreasonable limitation would be violative of Article 21
irrespective of whether it is imposed by legislation or by judicial decision. Allowing the appeals in part,
the Court,
HELD: 1. The society has a vital stake in both of these interests namely, personal liberty and the
investigational power of the police. The Court's task is how best to balance these interests while
determining the scope of section 438 of the Code of Criminal Procedure, 1973. [393 C-D]
2. The High Court and the Court of Session should be left 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. [417 B-D]
3. Section 438(1) of the Code lays down a condition which has to be satisfied before anticipatory bail
can be granted. The applicant must show that he has "reason to believe" that he may be arrested for a
non-bailable offence. The use of the expression "reason to believe" shows that the belief that the
applicant may be so arrested must be founded on reasonable grounds. Mere 'fear' is not 'belief', for
which reason it is not enough for the applicant to show that he has
some sort of a vague
apprehension that some one is going to make an accusation against him, in pursuance of
which he may be arrested. The grounds on which the belief of the applicant is based that he may be
arrested for a non-bailable offence, must be capable of being examined by the court objectively, because it
is then alone that the court can determine whether the applicant has reason to believe
that he may be so arrested. Section 438(1), therefore, cannot
be invoked on the basis of vague
and general allegations, as if to arm oneself in perpetuity against a possible arrest. Otherwise, the
number of applications for anticipatory bail will be as large, as, at any rate, the adult populace.
Anticipatory bail is a device to secure the individual's liberty; it is neither a passport to the
commission of crimes nor a shield against any and all kinds of accusation, likely or unlikely. [417 E-H,
418 A]
Secondly, if an application for anticipatory bail is made to the High Court or the Court of Session it
must apply its own mind to the question and decide whether a case has been made out for granting
such relief. It cannot leave the question for the decision of the Magistrate concerned under Section 437 of the
Code, as and when an occasion arises. Such a course will defeat the very object of Section 438.
[418 A-B]
Thirdly, the filing of a First Information Report is not a condition precedent to the exercise of the
power under Section 438. The imminence of a likely arrest founded on a reasonable belief can be shown
to exist even if an F.I.R. is not yet filed. [418 B-C]
Fourthly, anticipatory bail can be granted even after an F.I.R. is filed, so long as the applicant has
not been arrested. [418 C]

Fifthly, the provisions of Section 438 cannot be invoked after the arrest of the accused. The
grant of "anticipatory bail" to an accused who is under arrest involves a contradiction in terms, in so
far as the offence or offences for which he is arrested, are concerned. After arrest, the accused must seek
his remedy under Section 437 or Section 439 of the Code, if he wants to be released on bail in respect
of the offence or offences for which he is arrested. [418 C-E]

4. However, a "blanket order" of anticipatory bail should not generally be passed. This flows from
the very language of the section which requires the appellant to show that he has "reason to believe"
that he may be arrested. A belief can be said to be founded on reasonable grounds only if there is
something tangible to go by on the basis of which it can be said that the applicant's apprehension that
he may be arrested is genuine. That is why, normally, a direction should not issue under Section 438(1)
to the effect that the applicant shall be released on bail "whenever arrested for which ever offence
whatsoever". That is what is meant by a 'blanket order' of anticipatory bail, an order which serves as a
blanket to cover or protect any and every kind of allegedly unlawful activity, in fact any eventuality,
likely or unlikely regarding which, no concrete information can possibly be bad. The rationale of a
direction under Section 438(1) is the belief of the applicant founded on reasonable grounds that he may
be arrested for a non-bailable offence. It is unrealistic to expect the applicant to draw up his
application with the meticulousness of a pleading in a civil case and such is not requirement of the
section. But specific events and facts must be disclosed by the applicant in order to enable the court to
judge of the reasonableness of his
belief, the existence of which is the sine qua non of the exercise
of power conferred by the section. [418 E-H, 419 A]
A blanket order of anticipatory bail is bound to cause serious interference with both the right and
the duty of the police in the matter of investigation because, regardless of what kind of offence is
alleged to have been committed by the applicant and when, an order of bail which comprehends
allegedly unlawful activity of any description whatsoever, will prevent the police from arresting the
applicant even if the commits, say, a murder in the presence of the public. Such an order can then
become a charter of lawlessness and weapon to stifle prompt Investigation into offences which could not
possibly be predicated when the order was passed. Therefore, the court which grants anticipatory bail
must take care to specify the offence or offences in respect of which alone the order will be effective.
The power should not be exercised in a vacuum. [419 C-E]
5. An order of bail can be passed under section 438(1) of the Code without notice to the Public
Prosecutor. But notice should issue to the public prosecutor or the Government Advocate forthwith
and the question of bail should be re-examined in the light of the respective contentions of the
parties. The ad-interim order too must conform to the requirements of the section and suitable
conditions should be imposed on the applicant even at that stage. [419 E-F]
6. Equally the operation of an order passed under section 438(1) need not necessarily be limited in point
of time. The Court may, if there are reasons for doing so, limit the operation of
the order to a
short period until after the filing of an F.I.R. in respect of the matter covered by the order. The
applicant may in such cases be directed to obtain an order of bail under Section 437 or 439 of theCode
within a reasonably short period after the filing of the F.I.R. as aforesaid. But this need not be
followed as an invariable rule. The normal rule should be not to limit the operation of the order in relation to a
period of time. [419 F-H]
7. Bail is basically release from restraint, more particularly release from the custody of the police.
The act of arrest directly affects freedom of movement of the person arrested by the police, and
speaking generally, an order of bail gives back to the accused that freedom on condition that he will
appear to take his trial. Personal recognizance suretyship bonds and such other modalities are the means

by which an assurance is secured from the accused that though he has been released on bail, he will present
himself as the trial of offence or offences of which he is charged and for which he was arrested. [397 E-G]
The distinction between an ordinary order of bail and an order of anticipatory bail is that whereas
the former is granted after arrest and therefore means release from the custody of the police, the latter
is granted in anticipation of arrest and is therefore effective at the very moment of arrest. Police
custody is an inevitable concomitant of arrest for non-bailable offences. An order of anticipatory bail
constitutes, so to say, an insurance against police custody following upon arrest for offence or
offences in respect of which the order is issued. In other words, unlike a post-arrest order of bail, it is a
pre-arrest legal process which directs that if the person in whose favour it is issued is thereafter
arrested on the accusation in respect of which the direction is issued, he shall be released on bail.
Section 46(1) of the Code of Criminal Procedure which deals with how arrests are to be made, provides
that in making the arrest the police officer or other person making the arrest "shall actually touch or
confine the body of the person to be arrested, unless there be a submission to the custody by word or
action". A direction under section 438 is intended to confer conditional immunity from this 'touch' or
confinement. [397 G-H. 398 A-B]

The legislature conferred a wide discretion on the High Court and the Court of Session to grant
anticipatory bail because it evidently felt, firstly, that it would be difficult to
enumerate the
conditions under which anticipatory bail should or should not be granted and secondly; because the
intention was to allow the higher courts in the echelon a somewhat free hand in the grant of relief in the
nature of anticipatory bail. That is why, departing from the terms of Sections 437 and 439, Section 438(1)
uses the language that the High Court or the Court of Session "may, if it thinks fit" direct that the applicant be
released on bail. Sub-section (2) of Section 438 is a further and clearer manifestation of the same
legislative intent to confer a wide discretionary power to grant anticipatory bail. It provides that the High
Court or the Court of Session, while issuing a direction for the grant of anticipatory bail, "may include such
conditions in such directions in the light of the facts of the particular case, as it may think fit" including the
conditions which are set out in clauses (i) to (iv) of sub-section (2). The proof of legislative intent can best be
found in the language which the legislature uses. Ambiguities can undoubtedly be resolved by resort to
extraneous aids but words, as wide and explicit as have been used in Section 438, must be given their full
effect, especially when to refuse to do so will result in undue impairment of the freedom of the individual and
the presumption of innocence. It has to be borne in mind that anticipatory bail is sought when there is a
mere apprehension of arrest on the accusation that the applicant has committed a non-bailable offence. A
person who has yet to lose his freedom by being arrested asks for freedom in the event of arrest. That is the
stage at which it is imperative to protect his freedom, in so far as one may, and to give full play to the
presumption that he is innocent. In fact, the stage at which anticipatory
bail is generally sought brings
about its striking dissimilarity with the situation in which a person who is arrested for the commission
of a non-bailable offences asks for bail. In the latter situation, adequate data is available to the Court, or can
be called for by it, in the light of which it can grant or refuse relief and while granting it, modify it by the
imposition of all or any of the conditions mentioned in Section 437. [404 A-G]
10. The amplitude of judicial discretion which is given to the
High Court and the Court of Sessions, to
impose such conditions as they may think fit while granting anticipatory bail, should not be cut down, by a
process of construction, by reading into the statute conditions which are not to be found therein like those
evolved by the High Court. The High Court and the Court of Session to whom the application for anticipatory
bail is made ought to be left free in the exercise of their judicial discretion to grant bail if they consider it
fit so to do on the particular facts and circumstances of the case and on such conditions as the case may
warrant. Similarly, they must be left free to refuse bail if the circumstances of the case so warrant, on
considerations similar to those mentioned in Section 437 or which are generally considered to be relevant
under Section 439 of the Code. [405 B-D]

Generalisations on matters which rest on discretion and the attempt to discover formulae of universal
application when facts are bound to differ from case to case frustrate the very purpose of conferring
discretion. No two cases are alike on facts and therefore, Courts have to be allowed a
Little free play in the joints if the conferment of discretionary power is to be meaningful. There is no risk
involved in entrusting a wide discretion to the Court of Session and the High Court in granting anticipatory
bail because, firstly these are higher courts manned by experienced persons, secondly their order are not
final but are open to appellate or revisional scrutiny and above all because, discretion has always to be
exercised by courts judicially and not according to whim, caprice or fancy. On the other hand, there is a risk
in foreclosing categories of cases in which anticipatory bail may be allowed because life throws up unforeseen
possibilities and offers new challenges. Judicial discretion has to be free enough to be able to take these
possibilities in its stride and to meet these challenges. [405 D-G] Hyman and Anr. v. Rose, 1912 A.C. 623;
referred to
11. Judges have to decide cases as they come before them, mindful of the need to
keep passions
and prejudices out of their decisions. And it will be strange if, by employing judicial artifices and
techniques, this Court cuts down the discretion so wisely conferred upon the Courts, by devising a formula
which 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
this Court 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 guidelines 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 the Courts generally is to preserve their discretion without
meaning to abuse it. It will be strange if the Court exhibits concern to stultify the discretion conferred
upon the Courts by law. [406 D-H]
Discretion, therefore, ought to be permitted to remain in the domain of discretion, to be exercised
objectively and open to correction by the higher courts. The safety of discretionary power lies in this
twin protection which provides a safeguard against its abuse. [407 F-G]
12. It is true that the functions of judiciary and the police are in a sense complementary and not
overlapping. An order of anticipatory bail does not in any way, directly or indirectly, take away
from
the police their right to investigate into charges made or to be made against the person released on bail.
In fact, two of the usual conditions incorporated in a direction issued under section 438(1) are those
recommended in Sub-section (2)(i) and (ii) which require the applicant to co-operate with the police and to
assure that he shall not tamper with the witnesses during and after the investigation. While granting relief
under Section 438(1), appropriate conditions can be imposed under Section 438(2), so as to ensure an
uninterrupted investigation. One of such conditions can even be that in the event of the police making out a
case of a likely discovery under Section 27 of the Evidence Act, the person released on bail shall be liable to
be taken in police custody for facilitating the discovery. Besides, if and when the occasion arises, it may be
possible for the prosecution to claim the benefit of Section 27 of the Evidence Act in regard to a discovery
of facts made in pursuance of information supplied by a person released on bail. [409 D, 410 A-D] King
Emperor v. Khwaja Nazir Ahmed, 71 I.A., 203, State of U.P. v. Deoman Upadhyaya, [1961] 1 S.C.R. p. 14
@ 26; referred to.
13. In Balchand Jain v. State of Madhya Pradesh, [1977] 2 SCR 52, this Court was considering whether the
provisions of Section 438 relating to anticipatory bail stand overruled or repealed by virtue of Rule 184 of
the Defence and Internal Security of India Rules, 1971 or whether both the provisions can by rule of

harmonious interpretion, exist side by side. It was in that context that it was observed that "As section 438
immediately follows Section 437 which is the main provision for bail in respect of non-bailable offences, it is
manifest that the conditions imposed by s. 437(1) are implicitly contained in Section 438 of the Code". These
observations regarding the nature of the power conferred by section 438 and regarding the question whether
the conditions mentioned in Section 437 should be read into section 438 cannot, therefore be treated as the
ratio of the decision. [413 C-D, E]
The power conferred by section 438 is of an "extra ordinary" character only in the sense that it is not
ordinarily resorted to like the power conferred by sections 437 and 439. [413 E-F] Bal Chand Jain v. State of
M.P., [1977] 2 S.C.R. 52, distinguished.
14. Since denial of bail amounts to deprivation of personal liberty, the Court should lean
against
the imposition of unnecessary restrictions on the scope of section 438, especially when no such
restrictions have been imposed by the legislature in the terms of that section. Section 438 is a procedural
provision which is concerned with the personal liberty of the individual, who is entitled to the benefit of the
presumption of innocence since he is not, on the date of his application for anticipatory bail, convicted of the
offence in respect of which he seeks bail. An over-generous infusion of constraints and conditions which are
not to be found in Section 438 can make its provisions constitutionally vulnerable since the right to
personal freedom cannot be made to depend on compliance with unreasonable restrictions. [413 F-H, 414 A]
Maneka Gandhi v. Union of India, [1978] 1 S.C.C. 248; applied.
15. In regard to anticipatory bail, if the proposed accusation appears to stem not from motives of
furthering the ends of justice but from some ulterior motive, the object being to injure and humiliate the
applicant by having him arrested a direction for the release of the applicant on bail in the event of his arrest
would generally, be made. On the other hand, if it appears likely considering the
antecedents of the applicant, that taking advantage of the order of anticipatory bail he will flee from justice,
such an order would not be made. But the converse of these propositions is not necessarily true. That is to
say it cannot be laid down as an inexorable rule that anticipatory bail cannot be granted unless the
proposed accusation appears to be actuated by mala fides; and, equally, that anticipatory bail must be
granted if there is no fear that the applicant will abscond. There are several other considerations, too
numerous to enumerate the combined effect of which must weigh with the court while granting or rejecting
anticipatory bail. The
nature and seriousness of the proposed charges, the context of the events likely
to lead to the making of the charges, a reasonable possibility of the applicant's presence not being secured at
the trial, a reasonable apprehension that witnesses will be tampered with and "the larger interests of the
public or the state" are some of the considerations which the court has to keep in mind while deciding an
application for anticipatory bail. [415 G-H, 416 A-C] State v. Captain Jagjit Singh, [1962] 3 S.C.R. 622,
followed.

Adri Dharan Das Vs. State of West Bengal


Coram: ARIJIT PASAYAT, S.H. KAPADIA
21/02/2005
2005 AIR 1057, 2005(2 )SCR188 , 2005(4 )SCC303 , 2005(2 )SCALE212 , 2005(2 )JT548

Subject
Code of Criminal Procedure, 1973 :

Sections 438-Protection under-Scope of-Complaint under S.406, 467, 468, 471 and 420 IPC-Prayer by accused
for protection in terms of S.438-On facts, held: the prayer was rightly rejected by High Court.

Section 438-Application under-Held: Legality of proposed arrest cannot be gone into in such an applicationInterim order restraining arrest, if passed while dealing with an application under S.438, will amount to
interference in the investigation, which cannot be done under S.438.

Sections 438 and 439-Distinction between-Discussed.

Complaint was lodged alleging commission of various offences more particularly those under Sections 406,
467, 468, 471 and 420 IPC against the appellant and five others. Prayer was made to the Judicial Magistrate for
taking action in terms of Section 156(3) CrPC who directed the officer-in-charge of the concerned Police
Station to investigate after taking the petition of complaint as FIR and to submit report before the SubDivisional Judicial Magistrate (SDJM). The accused filed application under Section 438 CrPC before High
Court alleging that they were victims of a conspiracy. High Court declined to accept the prayer made by
appellant-accused to extend the protection available under Section 438 CrPC . Hence the present appeal.

Head Notes
Disposing of the appeal, the Court

HELD : 1. The facility which Section 438 of the Code gives is generally referred to as `anticipatory bail'. The
distinction between an ordinary order of bail and an order under Section 438 of the Code is that whereas the
former is granted after arrest, and therefore means release from custody of the Police, the latter is granted in
anticipation of arrest and is therefore effective at the very moment of arrest. [193-F, H; 194-A] Gur Baksh
Singh v. State of Punjab, [1980] 2 SCC 565, relied on. Balachand Jain v. State of Madhya Pradesh, AIR (1977)
SC 366, referred to.

2. The power exercisable under Section 438 CrPC is somewhat extraordinary in character and it is only in
exceptional cases where it appears that the person may be falsely implicated or where there are reasonable

grounds for holding that a person accused of an offence is not likely to otherwise misuse his liberty then power
is to be exercised under Section 438. The power being of important nature it is entrusted only to the higher
echelons of judicial forums, i.e. the Court of Session or the High Court. It is the power exercisable in case of
an anticipated accusation of non-bailable offence. The object which is sought to be achieved by Section 438 of
the Code is that the moment a person is arrested, if he has already obtained an order from the Court of Session
or High Court, he shall be released immediately on bail without being sent to jail. [194-D-F]

3.1. Sections 438 and 439 operate in different fields. It was held in Nirmal Jeet Kaur's case and Sunita Devi's
case that for making an application under Section 439 the fundamental requirement is that the accused should
be in custody. As observed in Salauddin's case the protection in terms of Section 438 is for a limited duration
during which the regular Court has to be moved for bail. Obviously, such bail is bail in terms of Section 439 of
the Code, mandating the applicant to be in custody. Otherwise, the distinction between orders under Sections
438 and 439 shall be rendered meaningless and redundant. [194-F; 197-A-B] Salauddin Abdulsamad Shaikh v.
State of Maharashtra, AIR (1996) SC 1042 and Niranjan Singh and Anr. v. Prabhakar Rajaram Kharote and
Ors., AIR (1980) SC 785, relied on.
K.L. Verma v. State and Anr., (1996) 7 SCALE 20; Nirmal Jeet Kaur v. State of M.P. and Anr., [2004] 7 SCC
558 and Sunita Devi v. State of Bihar and Anr., Criminal Appeal arising out of SLP (Crl.) No. 4601 of 2003
disposed of by Supreme Court on 6.12.2004, referred to.

3.2. If the protective umbrella of Section 438 is extended beyond what was laid down in Salauddin's case the
result would be clear by-passing of what is mandated in Section 439 regarding custody. In other words, till the
applicant avails remedies upto higher Courts, the requirements of Section 439 become dead letter. No part of a
statute can be rendered redundant in that manner. [197-C-D]

4.1. Section 438 is a procedural provision which is concerned with the personal liberty of an individual who is
entitled to plead innocence, since he is not on the date of application for exercise of power under Section 438
of the Code convicted for the offence in respect of which he seeks bail. The applicant must show that he has
`reason to believe' that he may be arrested in a non-bailable offence. Use of the expression `reason to believe'
shows that the applicant may be arrested must be founded on reasonable grounds. Mere "fear" is not `belief' for
which reason it is not enough for the applicant to show that he has some sort of vague apprehension that
someone is going to make an accusation against him in pursuance of which he may be arrested. Grounds on
which the belief on the applicant is based that he may be arrested in non-bailable offence must be capable of
being examined. [197-D-F]

4.2. The provisions cannot be invoked after arrest of the accused. A blanket order should not be generally
passed. It flows from the very language of the section which requires the applicant to show that he has reason
to believe that he may be arrested. Normally a direction should not issue to the effect that the applicant shall be
released on bail "whenever arrested for whichever offence whatsoever". Such `blanket order' should not be
passed as it would serve as a blanket to cover or protect any and every kind of allegedly unlawful activity. An
order under Section 438 is a device to secure the individual's liberty; it is neither a passport to the commission
of crimes nor a shield against any and all kinds of accusations likely or unlikely. [197-G-H; 198-A-B]

5. An application under Section 438 of the Code can be moved only by a person who has not already been
arrested. Once he is arrested, his remedy is to move the concerned Court either under Section 437 or Section
439 of the Code. In the very nature of the direction which the Court can issue under Section 438 of the Code, it
is clear that the direction is to be issued only at the pre-arrest stage. The direction becomes operative only after
arrest. The condition precedent for the operation of the direction issued is arrest of the accused. This being so,
the irresistible inference is that while dealing with an application under Section 438 of the Code the Court
cannot restrain arrest. [198-E-F]

6. The legality of the proposed arrest cannot be gone into in an application under Section 438 of the Code. The
role of the investigator is well-defined and the jurisdictional scope of interference by the Court in the process
of investigation is limited. The Court ordinarily will not interfere with the investigation of a crime or with the
arrest of accused in a cognizable offence. An interim order restraining arrest, if passed while dealing with an
application under Section 438 of the Code will amount to interference in the investigation, which cannot, at
any rate, be done under Section 438 of the Code. [199-A-B]

7. While upholding the rejection of the prayer in terms of Section 438 of the Code, no opinion is expressed on
merits of the case. When the bail application is moved in terms of Section 439 of the Code before the
concerned Court the same shall be considered in its proper perspective in accordance with law. The SDJM
would do well to dispose it of on the day it is filed. In case the prayer for bail is rejected and an application for
bail is filed before the District and Sessions Judge, the said Court would do well to dispose of the application
as early as practicable. If it is filed at a later date, the District and Sessions Judge would make an effort to
dispose it of within three days of its filing. [199-C-E]
Shivaji @ Dadya Shankar Alhat .. Appellant Vs. The State of Maharashtra

..Respondent

September 5, 2008
(Dr. ARIJIT PASAYAT) ( Dr. MUKUNDAKAM SHARMA)

Dr. ARIJIT PASAYAT, J.


A large number of cases in recent times coming before this Court involving rape and murder of young
girls, is a matter of concern. In the instant case victim was about nine years of age who was
the victim of sexual assault and animal lust of the accused-appellant; she was not only
raped but was murdered by the accused appellant.
The Learned Second Additional Judge, Pune tried the appellant for offences punishable under Sections
302 and Section 376 (2)(f) of the Indian Penal Code, 1860 and the trial court found the appellant
guilty for the aforesaid offences and he was sentenced to death for the offence of
murder and in respect of the other offence sentence to suffer rigorous imprisonment for
ten years and to pay fine with default stipulation. Appellant questioned the judgment

before the Bombay High Court which heard the same alongwith Confirmation Case which
was referred to the High Court as required under Section 366 of the Code of Criminal
Procedure, 1973 (in short the `Code'), for confirmation of death sentence. The appeals
were heard together, the reference was accepted but the appeal filed by the accused
was dismissed.
The Prosecution version
Shivaji-appellant (hereinafter referred to as the `accused') is an educated person was serving as teacher at Pune
in the year 1986. He was staying with his mother and sister near the house of Hemlata (hereinafter referred to
as the `deceased'), a tiny girl who had not seen ten summers in life. The accused is a married man and has three
children. His wife and children were not residing with him. The accused was known to the deceased and her
family. The deceased and her family used to sometime give him bread. The deceased was studying in 5th
standard. She has two sisters (PW 8). Her mother (PW 2) was working as a maid. All of them were staying
with their grandmother (PW 7). The father of the deceased was not staying with them on account of strained
relationship between him and the mother of deceased. The incident in question occurred on 14th January, 2002.
On that day there was festival of Makarsankranti. At about 11.30 a.m., the deceased and her sister had gone to
the borewell to fetch water. The accused was sitting on the slab, where construction work was going on. The
accused told the deceased that he would give her fuel wood from the hill. Thereafter they came to deceased's
house. The deceased kept the pitcher in the house and she went alongwith the accused towards the hill.
Thereafter the deceased did not return home. The mother came home at about 4.30 P.M. She was told that her
daughter had gone with the accused and had not returned. They started searching for the deceased but could
not find her. On the same day, the grandmother of the deceased gave a missing complaint to the police in
which she stated that the deceased had left the house with the accused and had not come back. Search was
going on to find out the deceased. It appears that the mother of deceased got to know from one Sakinabai that
dead body of her daughter was lying on hill. She also gave information to the police on 15th January, 2002
regarding missing of her daughter. In this complaint she also stated that the deceased had left the house
alongwith the accused. After seeing the dead body of her daughter at Hospital, the mother reported the matter
to the police. Her complaint came to be recorded in which she stated that her daughter had left with the
accused on 14.1.2002. She specifically stated that she was convinced that, it is the accused who had raped
her daughter and assaulted her on her abdomen with a sharp edged weapon, strangulated her with a
rope and murdered her. On the basis of this FIR investigation started. The accused was not traceable.
He could be arrested only on 16th January, 2002. He was found hiding in the sugarcane crop. After
completion of the investigation the accused came to be charged as aforesaid. Since the accused abjured guilt
trial was held. Seventeen witnesses were examined to further the prosecution version.

Prosecution examined (PW 2), the mother of the deceased and (PW 7), grandmother of the
deceased. (PW 8) the sister of the deceased, (PW 9) and (PW 6) were examined to establish the prosecution
case that the accused and the deceased were last seen together on 14th January, 2002 at about 11.30 a.m.
going towards Hill.
The accused pleaded innocence and false implication. His case was that in fact at the relevant point of
time he was not present in the village and has gone to his daughter's house, then to his sister's house.
Learned trial court found the evidence cogent and found the accused guilty and imposed the sentence.
The appeal before the High Court was dismissed and the reference made under Section 366 IPC was
confirmed.

In support of the appeal learned counsel for the appellant submitted that the case at hand is based on
circumstantial evidence and the circumstances do not warrant conclusion of guilt of the accused. Since the
conviction was based on circumstantial evidence, no death sentence should have been awarded and in
any event this is not a case where death sentence should have been imposed.
The deceased was thus a helpless poor girl of tender age. She had no protection of the father. She was,
therefore, a vulnerable girl.
When the mother of deceased came back, her mother told her that the deceased had gone to
bring fuel wood along with the accused. Since the deceased did not come back they started searching for her.
The grandmother of the deceased gave a missing complaint to police on 14.1.2002.
So far as the last seen aspect is concerned it is necessary to take note of two decisions of this court. In
State of U.P. v. Satish [2005 (3) SCC 114] it was noted as follows:
"22. The last seen theory comes into play where the time-gap between the point of time when the
accused and the deceased were seen last alive and when the deceased is found dead is so small that
possibility of any person other than the accused being the author of the crime becomes impossible. It
would be difficult in some cases to positively establish that the deceased was last seen with the accused when
there is a long gap and possibility of other persons coming in between exists. In the absence of any other
positive evidence toconclude that the accused and the deceased were last seen together, it would be hazardous
to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased and
the accused were seen together by witnesses PWs. 3 and 5, in addition to the evidence of PW-2."
In Ramreddy Rajeshkhanna Reddy v. State of A.P. [2006 (10) SCC 172] it was noted as follows:
"27. The last-seen theory, furthermore, comes into play where the time gap between the point of time
when the accused and the deceased were last seen alive and the deceased is found dead is so small that
possibility of any person other than the accused being the author of the crime becomes impossible. Even in
such a case the courts should look for some corroboration". (See also Bodh Raj v. State of J&K (2002(8)
SCC 45).)"
A similar view was also taken in Jaswant Gir v. State of Punjab [2005(12) SCC 438], Kusuma
Ankama Rao v State of A.P. (2008(9) SCALE 652) and in Manivel & Ors. v. State of Tamil Nadu
( 2008(5) Supreme 577).
Before analyzing factual aspects it may be stated that for a crime to be proved it is not necessary
that the crime must be seen to have been committed and must, in all circumstancesbe proved by direct
ocular evidence by examining before the Court those persons who had seen its commission. The offence can
be proved by circumstantial evidence also. The principal fact or factum probandum may be proved
indirectly by means of certain inferences drawn from factum probans, that is, the evidentiary facts. To
put it differently circumstantial evidence is not direct to the point in issue but consists of evidence of various
other facts which are so closely associated with the fact in issue that taken together they form a chain of
circumstances from which the existence of the principal fact can be legally inferred or presumed.
It has been consistently laid down by this Court that where a case rests squarely on circumstantial
evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances
are found to be incompatible with the innocence of the accused or the guilt of any other person. (See
Hukam Singh v. State of Rajasthan AIR (1977 SC 1063); Eradu and Ors. v. State of Hyderabad (AIR 1956 SC
316); Earabhadrappa v. State of Karnataka (AIR 1983 SC 446); State of U.P. v. Sukhbasi and Ors. (AIR 1985

SC 1224); Balwinder Singh v. State of Punjab (AIR 1987 SC 350); Ashok Kumar Chatterjee v. State of M.P.
(AIR 1989 SC 1890). The circumstances from which an inference as to the guilt of the accused is drawn have
to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact
sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab (AIR 1954 SC 621), it
was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative
effect of the circumstances must be such as to negative the innocence of the accused and bring the offences
home beyond any reasonable doubt.

We may also make a reference to a decision of this Court in C. Chenga Reddy and Ors. v. State of
A.P. (1996) 10 SCC 193, wherein it has been observed thus:
"In a case based on circumstantial evidence, the settled law is that the circumstances from which the
conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature.
Moreover, all the circumstances should be complete and there should be no gap left in the chain of
evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of
the accused and totally inconsistent with his innocence....".
In Padala Veera Reddy v. State of A.P. and Ors. (AIR 1990 SC 79), it was laid down that when a
case rests upon circumstantial evidence, such evidence must satisfy the following tests:

"(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and
firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the
accused;
(3) the circumstances, taken cumulatively should form a chain so complete that there is no escape
from the conclusion that within all human probability the crime was committed by the accused and none
else; and
(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of
explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be
consistent with the guilt of the accused but should be inconsistent with his innocence."
In State of U.P. v. Ashok Kumar Srivastava, (1992 Crl.LJ 1104), it was pointed out that great care
must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of
two inferences, the one in favour of the accused must be accepted.
Sir Alfred Wills in his admirable book "Wills' Circumstantial Evidence" (Chapter VI) lays
down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged
as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the
factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which
infers legal accountability; (3) in all cases,whether of direct or circumstantial evidence the best evidence must
be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory
facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other
reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he
is entitled as of right to be acquitted".

A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra,
(AIR 1984 SC 1622). Therein, while dealing with circumstantial evidence, it has been held that onus was on
the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be
cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could
be based on circumstantial evidence, must be fully established. They are:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
The circumstances concerned must or should and not may be established;
(2) the facts so established should be consistent only with the hypothesis of the guilt
of the accused, that is to say, they should not be explainable on any other hypothesis except that
the accused is guilty;
(3) the circumstances should be of a conclusive nature and tendency;
(4) they should exclude every possible hypothesis except the one to be proved; and
(5) there must be a chain of evidence so compete as not to leave any reasonable ground for the
conclusion consistent with the innocence of the accused and must show that in all human probability the act
must have been done by the accused.

In Damodar v. State of Karnataka [2000 SCC (Crl) 90] it was, inter alia, observed as follows:
"From the evidence of PWs. 1,6,7 & 8 the prosection has satisfactorily established that the appellant
was last seen with the deceased on 30.4.91. The appellant either in his Section 313 Cr.P.C. statement or by any
other evidence has not established when and where he and the deceased parted company after being last seen."
Protection of society and stamping out criminal proclivity must be the object of law which must be
achieved by imposing appropriate sentence.The facts and given circumstances in each case, the nature of
the crime, the manner in which it was planned and committed, the motive for commission of the crime,
the conduct of the accused, the nature of weapons used and all other attending circumstances are
relevant facts which would enter into the area of consideration. For instance a murder committed due to
deep- seated mutual and personal rivalry may not call for penalty of death. But an organised crime or
mass murders of innocent people would call for imposition of death sentence as deterrence. It is,
therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the
manner in which it was executed or committed etc. This position was illuminatingly stated by this Court in
Sevaka Perumal etc. v. State of Tamil Naidu (AIR 1991 SC 1463).
In Dhananjoy Chatterjee v. State of W.B. (1994 (2) SCC220), this Court has observed that
shockingly large number of criminals go unpunished thereby increasingly, encouraging the criminals and in the
ultimate making justice suffer by weakening the system's creditability. The imposition of appropriate
punishment is the manner in which the Court responds to the society's cry for justice against the criminal.
Justice demands that Courts should impose punishment befitting the crime so that the Courts reflect
public abhorrence of the crime. The Court must not only keep in view the rights of the criminal but also
the rights of the victim of the crime and the society at large while considering the imposition of
appropriate punishment.

Similar view has also been expressed in Ravji v. State of Rajasthan, (1996 (2) SCC 175). It has been
held in the said case that it is the nature and gravity of the crime but not the criminal, which are germane for
consideration of appropriate punishment in a criminal trial. The punishment to be awarded for a crime must not
be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has
been perpetrated.
These aspects have been elaborated in State of M.P. v. Munna Choubey [2005 (2) SCC 712].
In Machhi Singh v. State of Punjab [1983 (3) SCC 470] in para 38 the position was summed up
as follows: (SCC p. 489)
"38. The following propositions emerge from Bachan Singh's case (supra):
(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme
culpability.
(ii) Before opting for the death penalty the circumstances of the `offender' also require to be
taken into consideration along with the circumstances of the `crime'.
(iii) Life imprisonment is the rule and death sentence is an exception. In other words death
sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment
having regard to the relevant circumstances of the crime, and provided, and only provided, the option to
impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and
circumstances of the crime and all the relevant circumstances.
(iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so
the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between
the aggravating and the mitigating circumstances before the option is exercised."
The position was again reiterated in Devender Pal Singh v. State of NCT of Delhi [2002 (5)SCC
234 ] : (SCC p. 271, para58)
"58. From Bachan Singh 's case (supra) and Machhi Singh's case (supra) the principle culled out is that
when the collective conscience of the community is so shocked, that it will expect the holders of the judicial
power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise
of retaining death penalty, the same can be awarded. It was observed:
The community may entertain such sentiment in the following circumstances:
(1) When the murder is committed in an extremely brutal, grotesque, diabolical, revolting, or
dastardly manner so as to arouse intense and extreme indignation of the community.
(2) When the murder is committed for a motive which evinces total depravity and meanness; e.g.
murder by hired assassin for money or reward; or cold-blooded murder for gains of a person vis-`-vis
whom the murderer is in a dominating position or in a position of trust; or murder is committed in the
course for betrayal of the motherland.
(3) When murder of a member of a Scheduled Caste or minority community, etc. is committed not
for personal reasons but in circumstances which arouse social wrath; or in cases of `bride burning' or
`dowry deaths' or when murder is committed in order to remarry for the sake of extracting dowry once
again or to marry another woman on account of infatuation.

(4) When the crime is enormous in proportion. For instance when multiple murders, say of all or
almost all the members of a family or a large number of persons of a particular caste, community, or
locality, are committed.
(5) When the victim of murder is an innocent child, or a helpless woman or old or infirm person
or a person vis-`-vis whom the murderer is in a dominating position, or a public figure generally loved
and respected by the community."
The plea that in a case of circumstantial evidence death should not be awarded is without any logic. If
the circumstantial evidence is found to be of unimpeachable character in establishing the guilt of the
accused, that forms the foundation for conviction. That has nothing to do with the question of sentence
as has been observed by this Court in various cases while awarding death sentence. The mitigating
circumstances and the aggravating circumstances have to be balanced. In the balance sheet of such
circumstances, the fact that the case rests on circumstantial evidence has no role to play. In fact in most
of the cases where death sentence are awarded for rape and murder and the like, there is practically no
scope for having an eye witness. They are not committed in the public view. But very nature of things in
such cases, the available evidence is circumstantial evidence. If the said evidence has been found to be
credible, cogent and trustworthy for the purpose of recording conviction, to treat that evidence as a mitigating
circumstance, would amount to consideration of an irrelevant aspect. The plea of learned Amicus Curiae that
the conviction is based on circumstantial evidence and, therefore, the death sentence should not be awarded is
clearly unsustainable.
The case at hand falls in the rarest of rare category. The circumstances highlighted above, establish the
depraved acts of the accused, and they call for only one sentence, that is death sentence.