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ANTICIPATARY BAIL-Cr.P.C SOME


IMPORTANT CASE LAWS

ANTICIPATARY BAIL-438 Cr.P.C

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 you’ve 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.

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Most of the times, lawyers don’t 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.

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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.

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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.

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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.

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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.

Here is the judgment:

SAVITRI AGARWAL & ORS. -- APPELLANT (S)

VERSUS

STATE OF MAHARASHTRA & ANR. -- RESPONDENT (S)

JUDGMENT: D.K. JAIN, J.

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Leave granted.

The appellants herein are the mother-in-law, father- in-law, husband and the younger brother of the father-in-

law 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

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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

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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.

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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

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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:

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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

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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.

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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

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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

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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

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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.

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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

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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:

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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]

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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]

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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

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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, ,

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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:

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(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
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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.

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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

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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]

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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]

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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

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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]

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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

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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

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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]

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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

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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

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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]

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The power conferred by section 438 is of an "extra ordinary" character only in the
sense that it is not ordinarily resorted to like the power conferred by sections 437 and 439.
[413 E-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

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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
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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 application-Interim 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.

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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 Sub-Divisional 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

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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]

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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]

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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]

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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]

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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.

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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

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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.

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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.

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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:

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"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).)"
Jaswant Gir v. State of  Punjab [2005(12) SCC
A similar view was also taken in
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.

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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

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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."
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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:

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(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:

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"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

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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'.
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(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."

Devender Pal Singh v. State of NCT of


The position was again reiterated in
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:

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(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."

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