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BAIL
16. Section 439 of the new Code confers special powers on High 2
Court or Court of Session regarding bail. This was also the position
under Section 498 CrPC of the old Code. That is to say, even if a
Magistrate refuses to grant bail to an accused person, the High Court
or the Court of Session may order for grant of bail in appropriate
cases. Similarly under Section 439(2) of the new Code, the High Court
or the Court of Session may direct any person who has been released
on bail to be arrested and committed to custody. In the old Code,
Section 498(2) was worded in somewhat different language when it
said that a High Court or Court of Session may cause any person
who has been admitted to bail under sub-section (1) to be arrested
and may commit him to custody. In other words, under Section
498(2) of the old Code, a person who had been admitted to bail by the
High Court could be committed to custody only by the High Court.
Similarly, if a person was admitted to bail by a Court of Session, it
was only the Court of Session that could commit him to custody. This
restriction upon the power of entertainment of an application for
committing a person, already admitted to bail, to custody, is lifted in
the new Code under Section 439(2). Under Section 439(2) of the new
Code a High Court may commit a person released on bail under
Chapter XXXIII by any Court including the Court of Session to
custody, if it thinks appropriate to do so. It must, however, be made
clear that a Court of Session cannot cancel a bail which has already
been granted by the High Court unless new circumstances arise
during the progress of the trial after an accused person has been
admitted to bail by the High Court. If, however, a Court of Session
had admitted an accused person to bail, the State has two options. It
may move the Sessions Judge if certain new circumstances have
arisen which were not earlier known to the State and necessarily,
therefore, to that Court. The State may as well approach the High
Court being the superior Court under Section 439(2) to commit the
accused to custody. When, however, the State is aggrieved by the
order of the Sessions Judge granting bail and there are no new
circumstances that have cropped up except those already existed, it is
futile for the State to move the Sessions Judge again and it is
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competent in law to move the High Court for cancellation of the bail.
This position follows from the subordinate position of the Court of
Session vis-a-vis the High Court.
17. It is significant to note that under Section 397 CrPC of the new
Code while the High Court and the Sessions Judge have the
concurrent powers of revision, it is expressly provided under sub-
section (3) of that section that when an application under that section
has been made by any person to the High Court or to the Sessions
Judge, no further application by the same person shall be entertained
by the other of them. This is the position explicitly made clear under
the new Code with regard to revision when the authorities have
concurrent powers. Similar was the position under Section 435(4)
CrPC of the old Code with regard to concurrent revision powers of
the Sessions Judge and the District Magistrate. Although under
Section 435 (1), CrPC of the old Code the High Court, a Sessions
Judge or a District Magistrate had concurrent powers of revision, the
High Court’s jurisdiction in revision was left untouched. There is no
provision in the new Code excluding the jurisdiction of the High
Court in dealing with an application under Section 439(2) CrPC to
cancel bail after the Sessions Judge had been moved and an order
had been passed by him granting bail. The High Court has
undoubtedly jurisdiction to entertain the application under Section
439(2) CrPC for cancellation of bail notwithstanding that the Sessions
Judge had earlier admitted the appellants to bail. There is, therefore,
no force in the submission of Mr Mukherjee to the contrary.
18. Chapter XXXIII of the new Code contains provisions in respect of
bail bonds. Section 436 CrPC, with which this Chapter opens makes
an invariable rule for bail in case of bailable offences subject to the
specified exception under sub-section (2) of that section. Section 437
CrPC provides as to when bail may be taken in case of non-bailable
offences. Sub-section (1) of Section 437 CrPC makes a dichotomy in
dealing with non-bailable offences. The first category relates to
offences punishable with death or imprisonment for life and the rest
are all other non-bailable offences. With regard to the first category,
Section 437(1) CrPC imposes a bar to grant of bail by the Court or the
officer-in-charge of a police station to a person accused of or
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suspected of the commission of an offence punishable with death or

imprisonment for life, if there appear reasonable grounds for
believing that he has been so guilty. Naturally, therefore, at the stage
of investigation unless there are some materials to justify an officer or
the Court to believe that there are no reasonable grounds for
believing that the person accused of or suspected of the commission
of such an offence has been guilty of the same, there is a ban imposed
under Section 437(1) CrPC against granting of bail. On the other
hand, if to either the officer-in-charge of the police station or to the
Court there appear to be reasonable grounds to believe that the
accused has been guilty of such an offence there will be no question
of the Court or the officer granting bail to him. In all other non-
bailable cases judicial discretion will always be exercised by the
Court in favour of granting bail subject to sub-section (3) of Section
437 CrPC with regard to imposition of conditions, if necessary. Under
sub-section (4) of Section 437 CrPC an officer or a Court releasing any
person on bail under sub-section (1) or sub-section (2) of that section
is required to record in writing his or its reasons for so doing. That is
to say, law requires that in non-bailable offences punishable with
death or imprisonment for life, reasons have to be recorded for
releasing a person on bail, clearly disclosing how discretion has been
exercised in that behalf.
19. Section 437 CrPC deals, inter alia with two stages during the
initial period of the investigation of a non-bailable offence. Even the
officer-in-charge of the police station may, by recording his reasons
in writing, release a person accused of or suspected of the
commission of any non-bailable offence provided there are no
reasonable grounds for believing that the accused has committed a
non-bailable offence. Quick arrests by the police may be necessary
when there are sufficient materials for the accusation or even for
suspicion. When such an accused is produced before the Court, the
Court has a discretion to grant bail in all non-bailable cases except
those punishable with death or imprisonment for life if there appear
to be reasons to believe that he has been guilty of such offences. The
Courts oversee the action of the police and exercise judicial discretion
in granting bail always bearing in mind that the liberty of an
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individual is not unnecessarily and unduly abridged and at the same

time the cause of justice does not suffer. After the Court releases a
person on bail under sub-section (1) or sub-section (2) of Section 437
CrPC it may direct him to be arrested again when it considers
necessary so to do. This will be also in exercise of its judicial
discretion on valid grounds.
20. Under the first proviso to Section 167(2) no Magistrate shall
authorise the detention of an accused in custody under that section
for a total period exceeding 60 days on the expiry of which the
accused shall be released on bail if he is prepared to furnish the same.
This type of release under the proviso shall be deemed to be a release
under the provisions of Chapter XXXIII relating to bail. This proviso
is an innovation in the new Code and is intended to speed up
investigation by the police so that a person does not have to languish
unnecessarily in prison facing a trial. There is a similar provision
under sub-section (6) of Section 437 CrPC which corresponds to
Section 497(3-A) of the old Code. This provision is again intended to
speed up trial without unnecessarily detaining a person as an
undertrial prisoner, unless for reasons to be recorded in writing, the
Magistrate otherwise directs. We may also notice in this connection
sub-section (7) of Section 437 which provides that if at any time after
the conclusion of a trial of any person accused of non-bailable offence
and before the judgment is delivered, the Court is of opinion that
there are reasonable grounds for believing that the accused is not
guilty of such an offence, it shall release the accused, if he is in
custody, on the execution of him of a bond without sureties for his
appearance to hear the judgment. The principle underlying Section
437 is, therefore, towards granting of bail except in cases where there
appear to be reasonable grounds for believing that the accused has
been guilty of an offence punishable with death or imprisonment for
life and also when there are other valid reasons to justify the refusal
of bail.
21. Section 437 CrPC is concerned only with the Court of Magistrate.
It expressly excludes the High Court and the Court of Session. The
language of Section 437(1) may be contrasted with Section 437(7) to
which we have already made a reference. While under sub-section (1)
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of Section 437 CrPC the words are: “If there appear to be reasonable
grounds for believing that he has been guilty”, sub-section (7) says:
“that there are reasonable grounds for believing that the accused is
not guilty of such an offence”. This difference in language occurs on
account of the stage at which the two sub-sections operate. During
the initial investigation of a case in order to confine a person in
detention, there should only appear reasonable grounds for believing
that he has been guilty of an offence punishable with death or
imprisonment for life. Whereas after submission of charge-sheet or
during trial for such an offence the Court has an opportunity to form
somewhat clear opinion as to whether there are reasonable grounds
for believing that the accused is not guilty of such an offence. At that
stage the degree of certainty of opinion in that behalf is more after the
trial is over and judgment is deferred than at a pre-trial stage even
after the charge-sheet. There is a noticeable trend in the above
provisions of law that even in case of such non-bailable offences a
person need not be detained in custody for any period more than it is
absolutely necessary, if there are no reasonable grounds for believing
that he is guilty of such an offence. There will be, however, certain
overriding considerations to which we shall refer hereafter.
Whenever a person is arrested by the police for such an offence, there
should be materials produced before the Court to come to a
conclusion as to the nature of the case he is involved in or he is
suspected of. If at that stage from the materials available there appear
reasonable grounds for believing that the person has been guilty of
an offence punishable with death or imprisonment for life, the Court
has no other option than to commit him to custody. At that stage, the
Court is concerned with the existence of the materials against the
accused and not as to whether those materials are credible or not on
the merits.
22. In other non-bailable cases the Court will exercise its judicial
discretion in favour of granting bail subject to sub-section (3) of
Section 437 CrPC if it deems necessary to act under it. Unless
exceptional circumstances are brought to the notice of the Court
which may defeat proper investigation and a fair trial, the Court will
not decline to grant bail to a person who is not accused of an offence
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punishable with death or imprisonment for life. It is also clear that

when an accused is brought before the Court of a Magistrate with the
allegation against him of an offence punishable with death or
imprisonment for life, he has ordinarily no option in the matter but to
refuse bail subject, however, to the first proviso to Section 437(1)
CrPC and in a case where the Magistrate entertains a reasonable
belief on the materials that the accused has not been guilty of such an
offence. This will, however, be an extraordinary occasion since there
will be some materials at the stage of initial arrest, for the accusation
or for strong suspicion of commission by the person of such an
offence.
23. By an amendment in 1955 in Section 497 CrPC of the old Code the
words “or suspected of the commission of” were for the first time
introduced. These words were continued in the new Code in Section
437(1) CrPC. It is difficult to conceive how if a police officer arrests a
person on a reasonable suspicion of commission of an offence
punishable with death or imprisonment for life (Section 41 CrPC of
the new Code) and forwards him to a Magistrate [Section 167(1)
CrPC of the new Code] the Magistrate at that stage will have reasons
to hold that there are no reasonable grounds for believing that he has
not been guilty of such an offence. At that stage unless the Magistrate
is able to act under the proviso to Section 437(1) CrPC bail appears to
be out of the question. The only limited inquiry may then relate to
the materials for the suspicion. The position will naturally change as
investigation progresses and more facts and circumstances come to
light.
24. Section 439(1) CrPC of the new Code, on the other hand, confers
special powers on the High Court or the Court of Session in respect
of bail. Unlike under Section 437(1) there is no ban imposed under
Section 439(1), CrPC against granting of bail by the High Court or the
Court of Session to persons accused of an offence punishable with
death or imprisonment for life. It is, however, legitimate to suppose
that the High Court or the Court of Session will be approached by an
accused only after he has failed before the Magistrate and after the
investigation has progressed throwing light on the evidence and
circumstances implicating the accused. Even so, the High Court or
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the Court of Session will have to exercise its judicial discretion in

considering the question of granting of bail under Section 439(1)
CrPC of the new Code. The overriding considerations in granting bail
to which we adverted to earlier and which are common both in the
case of Section 437(1) and Section 439(1) CrPC of the new Code are
the nature and gravity of the circumstances in which the offence is
committed; the position and the status of the accused with reference
to the victim and the witnesses; the likelihood, of the accused fleeing
from justice; of repeating the offence; of jeopardising his own life
being faced with a grim prospect of possible conviction in the case; of
tampering with witnesses; the history of the case as well as of its
investigation and other relevant grounds which, in view of so many
valuable factors, cannot be exhaustively set out.
25. The question of cancellation of bail under Section 439(2) CrPC of
the new Code is certainly different from admission to bail under
Section 439(1) CrPC. The decisions of the various High Courts cited
before us are mainly with regard to the admission to bail by the High
Court under Section 498 CrPC (old). Power of the High Court or of
the Sessions Judge to admit persons to bail under Section 498 CrPC
(old) was always held to be wide without any express limitations in
law. In considering the question of bail justice to both sides governs
the judicious exercise of the Court’s judicial discretion. The only
authority cited before us where this Court cancelled bail granted by
the High Court is that of State v. Captain Jagjit Singh1. The Captain
was prosecuted along with others for conspiracy and also under
Sections 3 and 5 of the Indian Official Secrets Act, 1923 for passing on
official secrets to a foreign agency. This Court found a basic error in
the order of the High Court in treating the case as falling under
Section 5 of the Official Secrets Act which is a bailable offence when
the High Court ought to have proceeded on the assumption that it
was under Section 3 of that Act which is a non-bailable offence. It is
because of this basic error into which the High Court felt that this
Court interfered with the order of bail granted by the High Court.

Gurcharan Singh v. State (Delhi Admn.), (1978) 1 SCC 118

4. The Code of Criminal Procedure, 1898 did not contain any specific 5
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provision corresponding to the present Section 438. Under the old

Code, there was a sharp difference of opinion amongst the various
High Courts on the question as to whether courts had the inherent
power to pass an order of bail in anticipation of arrest, the 5
preponderance of view being that it did not have such power. The
need for extensive amendments to the Code of Criminal Procedure
was felt for a long time and various suggestions were made in
different quarters in order to make the Code more effective and
comprehensive. The Law Commission of India, in its 41st Report
dated September 24, 1969 pointed out the necessity of introducing a
provision in the Code enabling the High Court and the Court of
Session to grant “anticipatory bail”. It observed in para 39.9 of its
report (Volume I):
“The suggestion for directing the release of a person on bail prior to
his arrest (commonly known as “anticipatory bail”) was carefully
considered by us. Though there is a conflict of judicial opinion about
the power of a court to grant anticipatory bail, the majority view is
that there is no such power under the existing provisions of the Code.
The necessity for granting anticipatory bail arises mainly because
sometimes influential persons try to implicate their rivals in false
cases for the purpose of disgracing them or for other purposes by
getting them detained in jail for some days. In recent times, with the
accentuation of political rivalry, this tendency is showing signs of
steady increase. Apart from false cases, where there are reasonable
grounds for holding that a person accused of an offence is not likely
to abscond, or otherwise misuse his liberty while on bail, there seems
no justification to require him first to submit to custody, remain in
prison for some days and then apply for bail.
We recommend the acceptance of this suggestion. We are further of
the view that this special power should be conferred only on the
High Court and the Court of Session, and that the order should take
effect at the time of arrest or thereafter.
In order to settle the details of this suggestion, the following draft of
a new section is placed for consideration:
‘497-A. (1) When any person has a reasonable apprehension that he
would be arrested on an accusation of having committed a non-
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bailable offence, he may apply to the High Court or the Court of

Session for a direction under this section. That court may, in its
discretion, direct that in the event of his arrest, he shall be released on
bail.
(2) A Magistrate taking cognizance of an offence against that person
shall, while taking steps under Section 204(1), either issue summons
or a bailable warrant as indicated in the direction of the court under
sub-section (1).
(3) If any person in respect of whom such a direction is made is
arrested without warrant by an officer in charge of a police station on
an accusation of having committed that offence, and is prepared
either at the time of arrest or at any time while in the custody of such
officer to give bail, such person shall be released on bail.’
We considered carefully the question of laying down in the statute
certain conditions under which alone anticipatory bail could be
granted. But we found that it may not be practicable to exhaustively
enumerate those conditions; and moreover, the laying down of such
conditions may be construed as prejudging (partially at any rate) the
whole case. Hence we would leave it to the discretion of the court
and prefer not to fetter such discretion in the statutory provision
itself. Superior courts will, undoubtedly, exercise their discretion
properly, and not make any observations in the order granting
anticipatory bail which will have a tendency to prejudice the fair trial
of the accused.”
5. The suggestion made by the Law Commission was, in principle,
accepted by the Central Government which introduced clause 447 in
the Draft Bill of the Code of Criminal Procedure, 1970 with a view to
conferring an express power on the High Court and the Court of
Session to grant anticipatory bail. That clause read thus:
“447. (1) When any person has reason to believe that he would 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; and that court may, if it thinks fit, direct
that in the event of such arrest, he shall be released on bail.
(2) If such person is thereafter arrested without warrant by an officer
in charge of a police station on such accusation, and is prepared
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either at the time of arrest or at any time while in the custody of such
officer to give bail, he shall be released on bail; and if a Magistrate
taking cognizance of such offence decides that a warrant should issue
in the first instance against that person, he shall issue a bailable
warrant in conformity with the direction of the court under sub-
section (1).”
6. The Law Commission, in para 31 of its 48th Report (1972), made the
following comments on the aforesaid clause:
“The Bill introduces a provision for the grant of anticipatory bail.
This is substantially in accordance with the recommendation made
by the previous Commission. We agree that this would be a useful
addition, though we must add that it is in very exceptional cases that
such a power should be exercised.
We are further of the view that in order to ensure that the provision
is not put to abuse at the instance of unscrupulous petitioners, the
final order should be made only after notice to the Public Prosecutor.
The initial order should only be an interim one. Further, the relevant
section should make it clear that the direction can be issued only for
reasons to be recorded, and if the court is satisfied that such a
direction is necessary in the interests of justice.
It will also be convenient to provide that notice of the interim order
as well as of the final orders will be given to the Superintendent of
Police forthwith.”
Clause 447 of the Draft Bill of 1970 was enacted with certain
modifications and became Section 438 of the Code of Criminal
Procedure, 1973 which we have extracted at the outset of this
judgment.
7. The facility which Section 438 affords is generally referred to as
‘anticipatory bail’, an expression which was used by the Law
Commission in its 41st Report. Neither the section nor its marginal
note so describes it but, the expression ‘anticipatory bail’ is a
convenient mode of conveying that it is possible to apply for bail in
anticipation of arrest. Any order of bail can, of course, be effective
only from the time of arrest because, to grant bail, as stated in
Wharton’s LAW LEXICON, is to ‘set at liberty a person arrested or
imprisoned, on security being taken for his appearance’. Thus, bail is
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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 recognisance,
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 at the trial of offence or
offences of which he is charged and for which he was arrested. 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.
8. No one can accuse the police of possessing a healing touch nor
indeed does anyone have misgivings in regard to constraints
consequent upon confinement in police custody. But, society has
come to accept and acquiesce in all that follows upon a police arrest
with a certain amount of sang-frosd, insofar as the ordinary rut of
criminal investigation is concerned. It is the normal day-to-day
business of the police to investigate into charges brought before them
and, broadly and generally, they have nothing to gain, not favours at
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any rate, by subjecting ordinary criminals to needless harassment.

But the crimes, the criminals and even the complainants can
occasionally possess extraordinary features. When the even flow of
life becomes turbid, the police can be called upon to inquire into
charges arising out of political antagonism. The powerful processes
of criminal law can then be perverted for achieving extraneous ends.
Attendant upon such investigations, when the police are not free
agents within their sphere of duty, is a great amount of
inconvenience, harassment and humiliation. That can even take the
form of the parading of a respectable person in handcuffs, apparently
on way to a Court of justice. The foul deed is done when an
adversary is exposed to social ridicule and obloquy, no matter when
and whether a conviction is secured or is at all possible. It is in order
to meet such situations, though not limited to these contingencies,
that the power to grant anticipatory bail was introduced into the
Code of 1973.
9. Are we right in saying that the power conferred by Section 438 to
grant anticipatory bail is “not limited to these contingencies”? In fact
that is one of the main points of controversy between the parties.
Whereas it is argued by Shri M.C. Bhandare, Shri O.P. Sharma and
the other learned Counsel who appear for the appellants that 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, it is argued by the learned Additional Solicitor
General on behalf of the State Government that the grant of
anticipatory bail should at least be conditional upon the applicant
showing that he is likely to be arrested for an ulterior motive, that is
to say, that the proposed charge or charges are evidently baseless and
are actuated by mala fides. It is argued that anticipatory bail is an
extraordinary remedy and therefore, whenever it appears that the
proposed accusations are prima facie plausible, the applicant should
be left to the ordinary remedy of applying for bail under Section 437
or Section 439 of the Criminal Procedure Code, after he is arrested.
12. We find ourselves unable to accept, in their totality, the
submissions of the learned Additional Solicitor General or the
constraints which the Full Bench of the High Court has engrafted on
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the power conferred by Section 438. Clause (1) of Section 438 is

couched in terms, broad and unqualified. By any known canon of
construction, words of width and amplitude ought not generally to
be cut down so as to read into the language of the statute restraints
and conditions which the legislature itself did not think it proper or
necessary to impose. This is especially true when the statutory
provision which falls for consideration is designed to secure a
valuable right like the right to personal freedom and involves the
application of a presumption as salutary and deep grained in our
criminal jurisprudence as the presumption of innocence. Though the
right to apply for anticipatory bail was conferred for the first time by
Section 438, while enacting that provision the legislature was not
writing on a clean slate in the sense of taking an unprecedented step,
insofar as the right to apply for bail is concerned. It had before it two
cognate provisions of the Code: Section 437 which deals with the
power of courts other than the Court of Session and the High Court
to grant bail in non-bailable cases and Section 439 which deals with
the “special powers” of the High Court and the Court of Session
regarding bail. The whole of Section 437 is riddled and hedged in by
restrictions on the power of certain courts to grant bail. That section
reads thus:
“437. When bail may be taken in case of non-bailable offence.—(1) When
any person accused of or suspected of the commission of any non-
bailable offence is arrested or detained without warrant by an officer
in charge of a police station or appears or is brought before a court
other than the High Court or Court of Session, he may be released on
bail, but he shall not be so released if there appear reasonable
grounds for believing that he has been guilty of an offence
punishable with death or imprisonment for life:
Provided that the court may direct that any person under the age of
sixteen years or any woman or any sick or infirm person accused of
such an offence be released on bail:
Provided further that the mere fact that an accused person may be
required for being identified by witnesses during investigation shall
not be sufficient ground for refusing to grant bail if he is otherwise
entitled to be released on bail and gives an undertaking that he shall
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comply which such directions as may be given by the court.

(2) If it appears to such officer or court at any stage of the
investigation, inquiry or trial, as the case may be, that there are not
reasonable grounds for believing that the accused has committed a
non-bailable offence, but that there are sufficient grounds for further
inquiry into his guilt, the accused shall, pending such inquiry, be
released on bail, or, at the discretion of such officer or court, on the
execution by him of a bond without sureties for his appearance as
hereinafter provided.
(3) When a person accused or suspected of the commission of an
offence punishable with imprisonment which may extend to seven
years or more or of an offence under Chapter VI, Chapter XVI or
Chapter XVII of the Indian Penal Code or abetment of, or conspiracy
or attempt to commit, any such offence, is released on bail under sub-
section (1), the court may impose any condition which the court
considers necessary—
(a) in order to ensure that such person shall attend in accordance
with the conditions of the bond executed under this Chapter, or
(b) in order to ensure that such person shall not commit an offence
similar to the offence of which he is accused or of the commission of
which he is suspected, or
(c) otherwise in the interests of justice.
(4) An officer or a court releasing any person on bail under sub-
section (1) or sub-section (2), shall record in writing his or its reasons
for so doing.
(5) Any court which has released a person on bail under sub-section
(1) or sub-section (2), may, if it considers it necessary so to do, direct
that such person be arrested and commit him to custody.
(6) If, in any case triable by a Magistrate, the trial of a person accused
of any non-bailable offence is not concluded within a period of sixty
days from the first date fixed for taking evidence in the case, such
person shall, if he is in custody during the whole of the said period,
be released on bail to the satisfaction of the Magistrate, unless for
reasons to be recorded in writing, the Magistrate otherwise directs.
(7) If, at any time after the conclusion of the trial of a person accused
of a non-bailable offence and before judgment is delivered, the court
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is of opinion that there are reasonable grounds for believing that the
accused is not guilty of any such offence, it shall release the accused,
if he is in custody, on the execution by him of a bond without sureties
for his appearance to hear judgment delivered.”
Section 439(1)(a) incorporates the conditions mentioned in Section
437(3) if the offence in respect of which the bail is sought is of the
nature specified in that sub-section. Section 439 reads thus:
“439. Special powers of High Court or Court of Session regarding bail.—
(1) A High Court or Court of Session may direct—
(a) that any person accused of an offence and in custody be released
on bail, and if the offence is of the nature specified in sub-section (3)
of Section 437, may impose any condition which it considers
necessary for the purposes mentioned in that sub-section;
(b) that any condition imposed by a Magistrate when releasing any
person on bail be set aside or modified:
Provided that the High Court or the Court of Session shall, before
granting bail to a person who is accused of an offence which is triable
exclusively by the Court of Session or which, thought not so triable,
is punishable with imprisonment for life, give notice of the
application for bail to the Public Prosecutor unless it is, for reasons to
be recorded in writing, of opinion that it is not practicable to give
such notice.
(2) A High Court or Court of Session may direct that any person who
has been released on bail under this Chapter be arrested and commit
him to custody.”

The provisions of Sections 437 and 439 furnished a convenient model

for the legislature to copy while enacting Section 438. If it has not
done so and has departed from a pattern which could easily be
adopted with the necessary modifications, it would be wrong to
refuse to give to the departure its full effect by assuming that it was
not intended to serve any particular or specific purpose. The
departure, in our opinion, was made advisedly and purposefully:
Advisedly, at least in part, because of the 41st Report of the Law
Commission which, while pointing out the necessity of introducing a
provision in the Code enabling the High Court and the Court of
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Session to grant anticipatory bail, said in para 39.9 that it had

“considered carefully the question of laying down in the statute
certain conditions under which alone anticipatory bail could be
granted” but had come to the conclusion that the question of
granting such bail should be left “to the discretion of the court” and
ought not to be fettered by the statutory provision itself, since the
discretion was being conferred upon superior courts which were
expected to exercise it judicially. 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,
insofar as one may, and to give full play to the presumption that he is
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innocent. In fact, the stage at which anticipatory bail if generally

sought brings about its striking dissimilarity with the situation in
which a person who is arrested for the commission of a non-bailable
offence 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.
13. This is not to say that anticipatory bail, if granted, must be
granted without the imposition of any conditions. That will be
plainly contrary to the very terms of Section 438. Though sub-section
(1) of that section says that the court “may, if it thinks fit” issue the
necessary direction for bail, sub-section (2) confers on the court the
power to include such conditions in the direction as it may think fit
in the light of the facts of the particular case, including the conditions
mentioned in clauses (i) to (iv) of that sub-section. The controversy
therefore is not whether the court has the power to impose conditions
while granting anticipatory bail. It clearly and expressly has that
power. The true question is whether by a process of construction, the
amplitude of judicial discretion which is given to the High Court and
the Court of Session, to impose such conditions as they may think fit
while granting anticipatory bail, should be cut down by reading into
the statute conditions which are not to be found therein, like those
evolved by the High Court or canvassed by the learned Additional
Solicitor General. Our answer, clearly and emphatically, is in the
negative. 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.
14. 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,
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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 orders 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. While dealing with the necessity for
preserving judicial discretion unhampered by rules of general
application Earl Loreburn, L.C. said in Hyman v. Rose1-2:
“I desire in the first instance to point out that the discretion given by
the section is very wide. . . . Now it seems to me that when the Act is
so expressed to provide a wide discretion, ... it is not advisable to lay
down any rigid rules for guiding that discretion. I do not doubt that
the rules enunciated by the Master of the Rolls in the present case are
useful maxims in general, and that in general they reflect the point of
view from which judges would regard an application for relief. But I
think it ought to be distinctly understood that there may be cases in
which any or all of them may be disregarded. If it were otherwise,
the free discretion given by the statute would be fettered by
limitations which have nowhere been enacted. It is one thing to
decide what is the true meaning of the language contained in an Act
of Parliament. It is quite a different thing to place conditions upon a
free discretion entrusted by statute to the court where the conditions
are not based upon statutory enactment at all. It is not safe, I think, to
say that the court must and will always insist upon certain things
when the Act does not require them, and the facts of some
unforeseen case may make the court wish it had kept a free hand.”
15. Judges have to decide cases as they come before them, mindful of
the need to keep passions and prejudices out of their decisions. And
it will be strange if, by employing judicial artifices and techniques,
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we cut down the discretion so wisely conferred upon the courts, by

devising a formula which will confine the power to grant
anticipatory bail within a strait-jacket. While laying down cast-iron
rules in a matter like granting anticipatory bail, as the High Court has
done, it is apt to be overlooked that even judges can have but an
imperfect awareness of the needs of new situations. Life is never
static and every situation has to be assessed in the context of
emerging concerns as and when it arises. Therefore, even if we were
to frame a ‘Code for the grant of anticipatory bail’, which really is the
business of the legislature, it can at best furnish broad guide-lines
and cannot compel blind adherence. In which case to grant bail and
in which to refuse it is, in the very nature of things, a matter of
discretion. But apart from the fact that the question is inherently of a
kind which calls for the use of discretion from case to case, the
legislature has, in terms express, relegated the decision of that
question to the discretion of the court, by providing that it may grant
bail “if it thinks fit”. The concern of the courts generally is to preserve
their discretion without meaning to abuse it. It will be strange if we
exhibit concern to stultify the discretion conferred upon the courts by
law.
16. A close look at some of the rules in the eight-point code
formulated by the High Court will show how difficult it is to apply
them in practice. The seventh proposition says:
“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.”
17. How can the court, even if it had a third eye, assess the
blatantness of corruption at the stage of anticipatory bail? And will it
be correct to say that blatantness of the accusation will suffice for
rejecting bail, if the applicant’s conduct is painted in colours too lurid
to be true? The eighth proposition rule framed by the High Court
says:
“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
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and groundless.”
Does this rule mean, and that is the argument of the learned
Additional Solicitor General, that anticipatory bail cannot be granted
unless it is alleged (and naturally, also shown, because mere
allegation is never enough) that the proposed accusations are mala
fide? It is understandable that if mala fides are shown, anticipatory
bail should be granted in the generality of cases. But it is not easy to
appreciate why an application for anticipatory bail must be rejected
unless the accusation is shown to be mala fide. This, truly, is the risk
involved in framing rules by judicial construction. 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.
18. According to the sixth proposition framed by the High Court, the
discretion under Section 438 cannot be exercised in regard to offences
punishable with death or imprisonment for life unless, the court at
the stage of granting anticipatory bail, is satisfied that such a charge
appears to be false or groundless. Now, Section 438 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
an accusation of having committed “a non-bailable offence”. We see
no warrant for reading into this provision the conditions subject to
which bail can be granted under Section 437(1) of the Code. That
section, while conferring the power to grant bail in cases of non-
bailable offences, provides by way of an exception that a person
accused or suspected of the commission of a non-bailable offence
“shall not be so released” if there appear to be reasonable grounds for
believing that he has been guilty of an offence punishable with death
or imprisonment for life. If it was intended that the exception
contained in Section 437(1) should govern the grant of relief under
Section 438(1), nothing would have been easier for the legislature
than to introduce into the latter section a similar provision. We have
already pointed out the basic distinction between these two sections.
Section 437 applies only after a person, who is alleged to have
committed a non-bailable offence, is arrested or detained without
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warrant or appears or is brought before a court. Section 438 applies

before the arrest is made and, in fact, one of the pre-conditions of its
application is that the person, who applies for relief under it, must be
able to show that he has reason to believe that “he may be arrested”,
which plainly means that he is not yet arrested. The nexus which this
distinction bears with the grant or refusal of bail is that in cases
falling under Section 437, there is some concrete data on the basis of
which it is possible to show that there appear to be reasonable
grounds for believing that the applicant has been guilty of an offence
punishable with death or imprisonment for life. In cases falling under
Section 438 that stage is still to arrive and, in the generality of cases
thereunder, it would be premature and indeed difficult to predicate
that there are or are not reasonable grounds for so believing. The
foundation of the belief spoken of in Section 437(1), by reason of
which the court cannot release the applicant on bail is, normally, the
credibility of the allegations contained in the first information report.
In the majority of cases falling under Section 438, that data will be
lacking for forming the requisite belief. If at all the conditions
mentioned in Section 437 are to be read into the provisions of Section
438, the transplantation shall have to be done without amputation.
That is to say, on the reasoning of the High Court, Section 438(1) shall
have to be read as containing the clause that the applicant “shall not”
be released on bail “if there appear reasonable grounds for believing
that he has been guilty of an offence punishable with death or
imprisonment for life”. In this process one shall have overlooked that
whereas, the power under Section 438(1) can be exercised if the High
Court or the Court of Session “thinks fit” to do so, Section 437(1) does
not confer the power to grant bail in the same wide terms The
expression “if it thinks fit”, which occurs in Section 438(1) in relation
to the power of the High Court or the Court of Session, is
conspicuously absent in Section 437(1). We see no valid reason for
rewriting Section 438 with a view, not to expanding the scope and
ambit of the discretion conferred on the High Court and the Court of
Session but, for the purpose of limiting it. Accordingly, we are unable
to endorse the view of the High Court that anticipatory bail cannot be
granted in respect of offences like criminal breach of trust for the
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mere reason that the punishment provided therefor is imprisonment

for life. Circumstances may broadly justify the grant of bail in such
cases too, though of course, the court is free to refuse anticipatory
bail in any case if there is material before it justifying such refusal.
19. A great deal has been said by the High Court on the fifth
proposition framed by it, according to which, inter alia, the power
under Section 438 should not be exercised if the investigating agency
can make a reasonable claim that it can secure incriminating material
from information likely to be received from the offender under
Section 27 of the Evidence Act. According to the High Court, it is the
right and the duty of the police to investigate into offences brought to
their notice and therefore, courts should be careful not to exercise
their powers in a manner which is calculated to cause interference
therewith. It is true that the functions of the judiciary and the police
are in a sense complementary and not overlapping. And, as observed
by the Privy Council in King-Emperor v. Khwaja Nazir Ahmed3:
“Just as it is essential that every one accused of a crime should have
free access to a Court of justice so that he may be duly acquitted if
found not guilty of the offence with which he is charged, so it is of
the utmost importance that the judiciary should not interfere with the
police in matters which are within their province and into which the
law imposes on them the duty of inquiry .... The functions of the
judiciary and the police are complementary, not overlapping, and the
combination of the individual liberty with a due observance of law
and order is only to be obtained by leaving each to exercise its own
function,…”
But these remarks, may it be remembered, were made by the Privy
Council while rejecting the view of the Lahore High Court that it had
inherent jurisdiction under the old Section 561-A of the Criminal
Procedure Code, to quash all proceedings taken by the police in
pursuance of two first information reports made to them. An order
quashing such proceedings puts an end to the proceedings with the
inevitable result that all investigation into the accusation comes to a
halt. Therefore, it was held that the court cannot, in the exercise of its
inherent powers, virtually direct that the police shall not investigate
into the charges contained in the FIR. We are concerned here with a
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situation of an altogether different kind. 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 cooperate 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 by invoking the principle stated by this Court
in State of U.P. v. Deoman Upadhyaya4 to the effect that when a person
not in custody approaches a police officer investigating an offence
and offers to give information leading to the discovery of a fact,
having a bearing on the charge which may be made against him, he
may appropriately be deemed so have surrendered himself to the
police. The broad foundation of this rule is stated to be that Section
46 of the Code of Criminal Procedure does not contemplate any
formality before a person can be said to be taken in custody:
submission to the custody by word or action by a person is sufficient.
For similar reasons, we are unable to agree that anticipatory bail
should be refused if a legitimate case for the remand of the offender
to the police custody under Section 167(2) of the Code is made out by
the investigating agency.
20. It is unnecessary to consider the third proposition of the High
Court in any great details because we have already indicated that
there is no justification for reading into Section 438 the limitations
mentioned in Section 437. The High Court says that such limitations
are implicit in Section 438 but, with respect, no such implications
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arise or can be read into that section. The plenitude of the section
must be given its full play.
21. The High Court says in its fourth proposition that in addition to
the limitations mentioned in Section 437, the petitioner must make
out a “special case” for the exercise of the power to grant anticipatory
bail. This, virtually, reduces the salutary power conferred by Section
438 to a dead letter. In its anxiety, otherwise just, to show that the
power conferred by Section 438 is not “unguided or uncanalised”, the
High Court has subjected that power to a restraint which will have
the effect of making the power utterly unguided. To say that the
applicant must make out a “special case” for the exercise of the
power to grant anticipatory bail is really to say nothing. The
applicant has undoubtedly to make out a case for the grant of
anticipatory bail. But one cannot go further and say that he must
make out a “special case”. We do not see why the provisions of
Section 438 should be suspected as containing something volatile or
incendiary, which needs to be handled with the greatest care and
caution imaginable. A wise exercise of judicial power inevitably takes
care of the evil consequences which are likely to flow out of its
intemperate use. Every kind of judicial discretion, whatever may be
the nature of the matter in regard to which it is required to be
exercised, has to be used with due care and caution. In fact, an
awareness of the context in which the discretion is required to be
exercised and of the reasonably foreseeable consequences of its use, is
the hallmark of a prudent exercise of judicial discretion. One ought
not to make a bugbear of the power to grant anticipatory bail.
22. By proposition No. 1 the High Court says that the power
conferred by Section 438 is “of an extraordinary character and must
be exercised sparingly in exceptional cases only”. It may perhaps be
right to describe the power as of an extraordinary character because
ordinarily the bail is applied for under Section 437 or Section 439.
These sections deal with the power to grant or refuse bail to a person
who is in the custody of the police and that is the ordinary situation
in which bail is generally applied for. But this does not justify the
conclusion that the power must be exercised in exceptional cases
only, because it is of an extraordinary character. We will really be
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saying once too often that all discretion has to be exercised with care
and circumspection, depending on circumstances justifying its
exercise. It is unnecessary to travel beyond it and subject the wide
power conferred by the legislature to a rigorous code of self-imposed
limitations.
23. It remains only to consider the second proposition formulated by
the High Court, which is the only one with which we are disposed to
agree but we will say more about it a little later.
24. It will be appropriate at this stage to refer to a decision of this
Court in Balchand Jain v. State of Madhya Pradesh5 on which the High
Court has leaned heavily in formulating its propositions. One of us,
Bhagwati, J. Who spoke for himself and A.C. Gupta, J. Observed in
that case that: (SCC pp. 576, para 2)
“This 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 is to be
exercised.”
Fazal Ali, J. Who delivered a separate judgment of concurrence also
observed that: (SCC pp. 582-83, para 14)
“An order for anticipatory bail is an extraordinary remedy available
in special cases…”
and proceeded to say: (SCC p. 586, para 17)
“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 Section 437(1) are implicitly contained
in Section 438 of the Code. Otherwise the result would be that a
person who is accused of murder can get away under Section 438 by
obtaining an order for anticipatory bail without the necessity of
proving that there were reasonable grounds for believing that he was
not guilty of offence punishable with death or imprisonment for life.
Such a course would render the provisions of Section 437 nugatory
and will give a free licence to the accused persons charged with non-
bailable offences to get easy bail by approaching the court under
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Section 438 and bypassing Section 437 of the Code. This, we feel,
could never have been the intention of the legislature. Section 438
does not contain unguided or uncanalised powers to pass an order
for anticipatory bail, but such an order being of an exceptional type
can only be passed if, apart from the conditions mentioned in Section
437, there is a special case made out for passing the order. The words
“for a direction under this section” and “court may, if it thinks fit,
direct” clearly show that the court has to be guided by a large
number of considerations including those mentioned in Section 437
of the Code.”
While stating his conclusions Fazal Ali, J. Reiterated in conclusion
No. 3 (SCC p. 589, para 25) that “Section 438 of the Code is an
extraordinary remedy and should be resorted to only in special
cases”.
25. We hold the decision in Balchand Jain5 in great respect but it is
necessary to remember that the question as regards the interpretation
of Section 438 did not at all arise in that case. Fazal Ali, J. Has stated
in para 3 of his judgment (SCC para 10) that “the only point” which
arose for consideration before the court was whether the provisions
of Section 438 relating to anticipatory bail stand overruled and
repealed by virtue of Rule 184 of the Defence and Internal Security of
India Rules, 1971 or whether both the provisions can, by the rule of
harmonious interpretation, exist side by side. Bhagwati, J. Has also
stated in his judgment, after adverting to Section 438 that Rule 184 is
what the court was concerned with in the appeal (SCC para 3). The
observations made in Balchand Jain5 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 Jain5 in an altogether different
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context on an altogether different point.

26. We find a great deal of substance in Mr Tarkunde’s submission

that 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. The beneficent provision contained in
Section 438 must be saved, not jettisoned. No doubt can linger after
the decision in Maneka Gandhi6, that in order to meet the challenge of
Article 21 of the Constitution, the procedure established by law for
depriving a person of his liberty must be fair, just and reasonable.
Section 438, in the form in which it is conceived by the legislature, is
open to no exception on the ground that it prescribes a procedure
which is unjust or unfair. We ought, at all costs, to avoid throwing it
open to a Constitutional challenge by reading words in it which are
not to be found therein.
27. It is not necessary to refer to decisions which deal with the right
to ordinary bail because that right does not furnish an exact parallel
to the right to anticipatory bail. It is, however, interesting that as long
back as in 1924 it was held by the High Court of Calcutta in Nagendra
v. King-Emperor7 that the object of bail is to secure the attendance of
the accused at the trial, that the proper test to be applied in the
solution of the question whether bail should be granted or refused is
whether it is probable that the party will appear to take his trial and
that it is indisputable that bail is not to be withheld as a punishment.
In two other cases which, significantly, are the ‘Meerut Conspiracy
cases’ observations are to be found regarding the right to bail which
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deserve a special mention. In K.N. Joglekar v. Emperor8 it was

observed, while dealing with Section 498 which corresponds to the
present Section 439 of the Code, that it conferred upon the Sessions
Judge or the High Court wide powers to grant bail which were not
handicapped by the restrictions in the preceding Section 497 which
corresponds to the present Section 437. It was observed by the court
that there was no hard and fast rule and no inflexible principle
governing the exercise of the discretion conferred by Section 498 and
that the only principle which was established was that the discretion
should be exercised judiciously. In Emperor v. Hutchinson9 it was said
that it was very unwise to make an attempt to lay down any
particular rules which will bind the High Court, having regard to the
fact that the legislature itself left the discretion of the court
unfettered. According to the High Court, the variety of cases that
may arise from time to time cannot be safely classified and it is
dangerous to make an attempt to classify the cases and to say that in
particular classes a bail may be granted but not in other classes. It
was observed that the principle to be deduced from the various
sections in the Criminal Procedure Code was that grant of bail is the
rule and refusal is the exception. An accused person who enjoys
freedom is in a much better position to look after his case and to
properly defend himself than if he were in custody. As a presumably
innocent person he is therefore entitled to freedom and every
opportunity look after his own case. A presumably innocent person
must have his freedom to enable him to establish his innocence.
28. Coming nearer home, it was observed by Krishna Iyer, J., in
Gudikanti Narasimhulu v. Public Prosecutor10 that: (SCC p. 242, para 1)
“... the issue of bail is one of liberty, justice, public safety and burden
of the public treasury, all of which insist that a developed
jurisprudence of bail is integral to a socially sensitized judicial
process. . . . After all, personal liberty of an accused or convict is
fundamental, suffering lawful eclipse only in terms of procedure
established by law. The last four words of Article 21 are the life of
that human right.”
29. In Gurcharan Singh v. State (Delhi Administration)11 it was
observed by Goswami, J., who spoke for the court, that: (SCC p. 129,
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para 29)
“There cannot be an inexorable formula in the matter of granting bail.
The facts and circumstances of each case will govern the exercise of
judicial discretion in granting or cancelling bail.”
30. In AMERICAN JURISPRUDENCE (2nd, Volume 8, p. 806, para
39), it is stated:
“Where the granting of bail lies within the discretion of the court, the
granting or denial is regulated, to a large extent, by the facts and
circumstances of each particular case. Since the object of the
detention or imprisonment of the accused is to secure his appearance
and submission to the jurisdiction and the judgment of the court, the
primary inquiry is whether a recognizance or bond would effect that
end.”
It is thus clear that 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. Any one single
circumstance cannot be treated as of universal validity or as
necessarily justifying the grant or refusal of bail.
31. 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
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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. The relevance of these considerations was pointed out in State v.
Captain Jagjit Singh12, which, though, was a case under the old
Section 498 which corresponds to the present Section 439 of the Code.
It is of paramount consideration to remember that the freedom of the
individual is as necessary for the survival of the society as it is for the
egoistic purposes of the individual. A person seeking anticipatory
bail is still a free man entitled to the presumption of innocence. He is
willing to submit to restraints on his freedom, by the acceptance of
conditions which the court may think fit to impose, in consideration
of the assurance that if arrested, he shall be enlarged on bail.
32. A word of caution may perhaps be necessary in the evaluation of
the consideration whether the applicant is likely to abscond. There
can be no presumption that the wealthy and the mighty will submit
themselves to trial and that the humble and the poor will run away
from the course of justice, any more than there can be a presumption
that the former are not likely to commit a crime and the latter are
more likely to commit it. In his charge to the grand jury at Salisbury
Assizes, 1899 (to which Krishna Iyer, J. Has referred in Gudikanti10),
Lord Russel of Killowen said: (SCC p. 243, para 5)
“... it was the duty of Magistrates to admit accused persons to bail,
wherever practicable, unless there were strong grounds for
supposing that such persons would not appear to take their trial. It
was not the poorer classes who did not appear, for their
circumstances were such as to tie them to the place where they
carried on their work. They had not the golden wings with which to
fly from justice.”
This, incidentally, will serve to show how no hard and fast rules can
be laid down in discretionary matters like the grant or refusal of bail,
whether anticipatory or otherwise. No such rules can be laid down
for the simple reason that a circumstance which, in a given case,
turns out to be conclusive, may have no more than ordinary
signification in another case.
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35. 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 individuals
liberty; it is neither a passport to the commission of crimes nor a
shield against any and all kinds of accusations, likely or unlikely
36. 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.
37. 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 FIR is not yet filed.
38. Fourthly, anticipatory bail can be granted even after an FIR is
filed, so long as the applicant has not been arrested.
39. Fifthly, the provisions of Section 438 cannot be invoked after the
arrest of the accused. The grant of “anticipatory bail” to an accused
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who is under arrest involves a contradiction in terms, insofar 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.
40. We have said that there is one proposition formulated by the
High Court with which we are inclined to agree. That is proposition
(2). We agree that a ‘blanket order’ of anticipatory bail should not
generally be passed. This flows from the very language of the section
which, as discussed above, requires the applicant 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 whichever 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 had. 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.
41. Apart from the fact that the very language of the statute compels
this construction, there is an important principle involved in the
insistence that facts, on the basis of which a direction under Section
438(1) is sought, must be clear and specific, not vague and general. It
is only by the observance of that principle that a possible conflict
between the right of an individual to his liberty and the right of the
police to investigate into crimes reported to them can be avoided. A
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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 he commits, say, a murder in the presence of the
public. Such an order can then 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. 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.
42. There was some discussion before us on certain minor modalities
regarding the passing of bail orders under Section 438(1). Can an
order of bail be passed under the section without notice to the Public
Prosecutor? It can be. 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. Should the operation of
an order passed under Section 438(1) be limited in point of time? Not
necessarily. 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 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 reasonably short period after the filing of the
FIR 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.
43. During the last couple of years this Court, while dealing with
appeals against orders passed by various High Courts, has granted
anticipatory bail to many a person by imposing conditions set out in
Section 438(2) (i), (ii) and (iii). The court has, in addition, directed in
most of those cases that (a) the applicant should surrender himself to
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the police for a brief period if a discovery is to be made under Section

27 of the Evidence Act or that he should be deemed to have
surrendered himself if such a discovery is to be made. In certain
exceptional cases, the court has, in view of the material placed before
it, directed that the order of anticipatory bail will remain in operation
only for a week or so until after the filing of the FIR in respect of
matters covered by the order. These orders, on the whole, have
worked satisfactorily, causing the least inconvenience to the
individuals concerned and least interference with the investigational
rights of the police. The court has attempted through those orders to
strike a balance between the individual’s right to personal freedom
and the investigational rights of the police. The appellants who were
refused anticipatory bail by various courts have long since been
released by this Court under Section 438(1) of the Code.

Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565

24. This Court in Amarmani Tripathi1 had held that while considering
the application for bail, what is required to be looked is, (i) whether
there is any prima facie or reasonable ground to believe that the
accused had committed the offence; (ii) nature and gravity of the
charge; (iii) severity of the punishment in the event of conviction; (iv)
danger of the accused absconding or fleeing if released on bail; (v)
character, behaviour, means, position and standing of the accused;
(vi) likelihood of the offence being repeated; (vii) reasonable
apprehension of the witnesses being tampered with; and (viii)
danger, of course, of justice being thwarted by grant of bail.
Gobarbhai Naranbhai Singala v. State of Gujarat, (2008) 3 SCC 775
7. “11. While dealing with an application for bail, there is a need to 2
indicate in the order, reasons for prima facie concluding why bail
was being granted particularly where an accused was charged of
having committed a serious offence. It is necessary for the courts
dealing with an application for bail to consider among other
circumstances, the following factors also before granting bail. They
are:
1. The nature of accusation and the severity of punishment in case of
conviction and the nature of supporting evidence;
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2. Reasonable apprehension of tampering of the witness or

apprehension of threat to the complainant;
3. Prima facie satisfaction of the court in support of the charge.
Any order dehors such reasons suffers from non-application of mind
as was noted by this Court in Ram Govind Upadhyay v. Sudarshan
Singh1, Puran v. Rambilas2 and in Kalyan Chandra Sarkar v. Rajesh
Ranjan3.
12. Though a conclusive finding in regard to the points urged by the
parties is not expected of the court considering the bail application,
yet giving reasons is different from discussing merits or demerits. As
noted above, at the stage of granting bail a detailed examination of
evidence and elaborate documentation of the merits of the case has
not to be undertaken. But that does not mean that while granting bail
some reasons for prima facie concluding why bail was being granted
is not required to be indicated.
13. In Kalyan Chandra Sarkar v. Rajesh Ranjan3 in para 11 it was noted
as follows: (SCC pp. 535-36)
’11. The law in regard to grant or refusal of bail is very well settled.
The court granting bail should exercise its discretion in a judicious
manner and not as a matter of course. Though at the stage of granting
bail a detailed examination of evidence and elaborate
documentation of the merits of the case need not be undertaken,
there is a need to indicate in such orders reasons for prima facie
concluding why bail was being granted particularly where the
accused is charged of having committed a serious offence. Any order
devoid of such reasons would suffer from non-application of mind. It
is also necessary for the court granting bail to consider among other
circumstances, the following factors also before granting bail; they
are:
(a) The nature of accusation and the severity of punishment in case of
conviction and the nature of supporting evidence.
(b) Reasonable apprehension of tampering with the witness or
apprehension of threat to the complainant.
(c) Prima facie satisfaction of the court in support of the charge.
(See Ram Govind Upadhyay v. Sudarshan Singh1 and Puran v.
Rambilas2.)’
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It was also noted in the said case that the conditions laid down under
Section 437(1)(i) are sine qua non for granting bail even under Section
439 of the Code.
14. In Puran v. Rambilas2 it was noted as follows: (SCC p. 345, para
11)
’11. Further, it is to be kept in mind that the concept of setting aside
the unjustified illegal or perverse order is totally different from the
concept of cancelling the bail on the ground that the accused has
misconducted himself or because of some new facts requiring such
cancellation. This position is made clear by this Court in Gurcharan
Singh v. State (Delhi Admn.)4. In that case the Court observed as
under: (SCC p. 124, para 16)
“16. … If, however, a Court of Session had admitted an accused
person to bail, the State has two options. It may move the Sessions
Judge if certain new circumstances have arisen which were not
earlier known to the State and necessarily, therefore, to that court.
The State may as well approach the High Court being the superior
court under Section 439(2) to commit the accused to custody. When,
however, the State is aggrieved by the order of the Sessions Judge
granting bail and there are no new circumstances that have cropped
up except those already existing, it is futile for the State to move the
Sessions Judge again and it is competent in law to move the High
Court for cancellation of the bail. This position follows from the
subordinate position of the Court of Session vis-à-vis the High
Court.” ’ ”
The above position was highlighted in Lokesh Singh v. State of U.P.5

State of Maharashtra v. Dhanendra Shriram Bhurle, (2009) 11 SCC

541
5. “19. … the parameters for grant of bail and cancellation of bail are 2
different. There is no dispute to this position. But the question is if
the trial court while granting bail acts on irrelevant materials or takes
into account irrelevant materials whether bail can be cancelled. …
Under the scheme of the Code the application for cancellation of bail
can be filed before the court granting the bail if it is a Court of
Session, or the High Court.
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* * *
21. [This Court in Kalyan Chandra Sarkar v. Rajesh Ranjan1 in para 11]
noted as follows: (SCC pp. 535-36)
’11. The law in regard to grant or refusal of bail is very well settled.
The court granting bail should exercise its discretion in a judicious
manner and not as a matter of course. Though at the stage of granting
bail a detailed examination of evidence and elaborate documentation
of the merit of the case need not be undertaken, there is a need to
indicate in such orders reasons for prima facie concluding why bail
was being granted particularly where the accused is charged of
having committed a serious offence. Any order devoid of such
reasons would suffer from non-application of mind. It is also
necessary for the court granting bail to consider among other
circumstances, the following factors also before granting bail; they
are:
(a) The nature of accusation and the severity of punishment in case of
conviction and the nature of supporting evidence.
(b) Reasonable apprehension of tampering with the witness or
apprehension of threat to the complainant.
(c) Prima facie satisfaction of the court in support of the charge. (See
Ram Govind Upadhyay v. Sudarshan Singh2 and Puran v. Rambilas3.)’
22. It was also noted in the said case that the conditions laid down
under Section 437(1)(i) are sine qua non for granting bail even under
Section 439 of the Code. In para 14 it was noted as follows: (Rajesh
Ranjan case1, SCC pp. 536-37)
’14. We have already noticed from the arguments of learned counsel
for the appellant that the present accused had earlier made seven
applications for grant of bail which were rejected by the High Court
and some such rejections have been affirmed by this Court also. It is
seen from the records that when the fifth application for grant of bail
was allowed by the High Court, the same was challenged before this
Court and this Court accepted the said challenge by allowing the
appeal filed by the Union of India and another and cancelled the bail
granted by the High Court as per the order of this Court made in
Union of India v. Rajesh Ranjan4. While cancelling the said bail this
Court specifically held that the fact that the present accused was in
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custody for more than one year (at that time) and the further fact that
while rejecting an earlier application, the High Court had given
liberty to renew the bail application in future, were not grounds
envisaged under Section 437(1)(i) of the Code. This Court also in
specific terms held that the condition laid down under Section
437(1)(i) is sine qua non for granting bail even under Section 439 of
the Code. In the impugned order it is noticed that the High Court has
given the period of incarceration already undergone by the accused
and the unlikelihood of trial concluding in the near future as grounds
sufficient to enlarge the accused on bail, in spite of the fact that the
accused stands charged of offences punishable with life
imprisonment or even death penalty. In such cases, in our opinion,
the mere fact that the accused has undergone certain period of
incarceration (three years in this case) by itself would not entitle the
accused to being enlarged on bail, nor the fact that the trial is not
likely to be concluded in the near future either by itself or coupled
with the period of incarceration would be sufficient for enlarging the
appellant on bail when the gravity of the offence alleged is severe
and there are allegations of tampering with the witnesses by the
accused during the period he was on bail.’
23. Even though the reappreciation of the evidence as done by the
court granting bail is to be avoided, the court dealing with an
application for cancellation of bail under Section 439(2) can consider
whether irrelevant materials were taken into consideration. That is so
because it is not known as to what extent the irrelevant materials
weighed with the court for accepting the prayer for bail.
24. In Puran v. Rambilas3 it was noted as follows: (SCC p. 345, para
11)
’11. Further, it is to be kept in mind that the concept of setting aside
the unjustified illegal or perverse order is totally different from the
concept of cancelling the bail on the ground that the accused has
misconducted himself or because of some new facts requiring such
cancellation. This position is made clear by this Court in Gurcharan
Singh v. State (Delhi Admn.)5. In that case the Court observed as
under: (SCC p. 124, para 16)
“16. … If, however, a Court of Session had admitted an accused
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person to bail, the State has two options. It may move the Sessions
Judge if certain new circumstances have arisen which were not
earlier known to the State and necessarily, therefore, to that court.
The State may as well approach the High Court being the superior
court under Section 439(2) to commit the accused to custody. When,
however, the State is aggrieved by the order of the Sessions Judge
granting bail and there are no new circumstances that have cropped
up except those already existing, it is futile for the State to move the
Sessions Judge again and it is competent in law to move the High
Court for cancellation of the bail. This position follows from the
subordinate position of the Court of Session vis-à-vis the High
Court.” ’
25. The perversity as highlighted in Puran case3 can also flow from
the fact that as noted above, irrelevant materials have been taken into
consideration adding vulnerability to the order granting bail. The
irrelevant materials should be of a substantial nature and not of a
trivial nature. … It [is] nature of the acts which [is to be] considered.
By way of illustration, it can be said that the accused cannot take a
plea while applying for bail that the person whom he killed was a
hardened criminal. That certainly is not a factor which can be taken
into account.”*

Ram Babu Tiwari v. State of Madhya Pradesh, (2009) 12 SCC 471

15. In deciding bail applications an important factor which should
certainly be taken into consideration by the court is the delay in
concluding the trial. Often this takes several years, and if the accused
is denied bail but is ultimately acquitted, who will restore so many
years of his life spent in custody? Is Article 21 of the Constitution,
which is the most basic of all the fundamental rights in our
Constitution, not violated in such a case? Of course this is not the
only factor, but it is certainly one of the important factors in deciding
whether to grant bail.
State of Kerala v. Raneef, (2011) 1 SCC 784
ANTICIPATORY BAIL
6. The law relating to bail is contained in Sections 436 to 450 of 2
Chapter XXXIII of the Code of Criminal Procedure, 1973. Section 436
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deals with situation, in what kind of cases bail should be granted.

Section 436 deals with the situation when bail may be granted in case
of a bailable offence. Section 439 deals with the special powers of the
High Court or the Court of Session regarding grant of bail. Under
Sections 437 and 439 bail is granted when the accused or the detenu
is in jail or under detention.
7. The provision of anticipatory bail was introduced for the first time
in the Code of Criminal Procedure in 1973.
8. Section 438 of the Code of Criminal Procedure, 1973 reads as
under:
“438. Direction for grant of bail to person apprehending arrest.—(1) Where
any person has reason to believe that he may be arrested on
accusation of having committed a non-bailable offence, he may apply
to the High Court or the Court of Session for a direction under this
section that in the event of such arrest he shall be released on bail;
and that court may, after taking into consideration, inter alia, the
following factors, namely:
(i) the nature and gravity of the accusation;
(ii) the antecedents of the applicant including the fact as to whether
he has previously undergone imprisonment on conviction by a court
in respect of any cognizable offence;
(iii) the possibility of the applicant to flee from justice; and
(iv) where the accusation has been made with the object of injuring or
humiliating the applicant by having him so arrested,
either reject the application forthwith or issue an interim order for the
grant of anticipatory bail:
Provided that, where the High Court or, as the case may be, the
Court of Session, has not passed any interim order under this sub-
section or has rejected the application for grant of anticipatory bail, it
shall be open to an officer in charge of a police station to arrest,
without warrant the applicant on the basis of the accusation
apprehended in such application.
(1-A) Where the court grants an interim order under sub-section (1),
it shall forthwith cause a notice being not less than seven days notice,
together with a copy of such order to be served on the Public
Prosecutor and the Superintendent of Police, with a view to give the
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Public Prosecutor a reasonable opportunity of being heard when the

application shall be finally heard by the court.
(1-B) The presence of the applicant seeking anticipatory bail shall be
obligatory at the time of final hearing of the application and passing
of final order by the court, if on an application made to it by the
Public Prosecutor, the court considers such presence necessary in the
interest of justice.
(2) When the High Court or the Court of Session makes a direction
under sub-section (1), it may include such conditions in such
directions in the light of the facts of the particular case, as it may
think fit, including—
(i) a condition that the person shall make himself available for
interrogation by a police officer as and when required;
(ii) a condition that the person shall not, directly or indirectly, make
any inducement, threat or promise to any person acquainted with the
facts of the case so as to dissuade him from disclosing such facts to
the court or to any police officer;
(iii) a condition that the person shall not leave India without the
previous permission of the court;
(iv) such other condition as may be imposed under sub-section (3) of
Section 437, as if the bail were granted under that section.
(3) If such person is thereafter arrested without warrant by an officer
in charge of a police station on such accusation, and is prepared
either at the time of arrest or at any time while in the custody of such
officer to give bail, he shall be released on bail; and if a Magistrate
taking cognizance of such offence decides that a warrant should issue
in the first instance against that person, he shall issue a bailable
warrant in conformity with the direction of the court under sub-
section (1).”
Why was the provision of anticipatory bail introduced? —
Historical perspective
9. The Code of Criminal Procedure, 1898 did not contain any specific
provision of anticipatory bail. Under the old Code, there was a sharp
difference of opinion amongst the various High Courts on the
question as to whether the courts had an inherent power to pass an
order of bail in anticipation of arrest, the preponderance of view
Sl. BAIL Bench
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being that it did not have such power.

10. The Law Commission of India, in its 41st Report dated 24-9-1969
pointed out the necessity of introducing a provision in the Code of
Criminal Procedure enabling the High Court and the Court of
Session to grant “anticipatory bail”. It observed in Para 39.9 of its
Report (Vol. V) and the same is set out as under:
“39.9. Anticipatory bail.—The suggestion for directing the release of a
person on bail prior to his arrest (commonly known as ‘anticipatory
bail’) was carefully considered by us. Though there is a conflict of
judicial opinion about the power of a court to grant anticipatory bail,
the majority view is that there is no such power under the existing
provisions of the Code. The necessity for granting anticipatory bail
arises mainly because sometimes influential persons try to implicate
their rivals in false cause for the purpose of disgracing them or for
other purposes by getting them detained in jail for some days. In
recent times, with the accentuation of political rivalry, this tendency
is showing signs of steady increase. Apart from false cases, where
there are reasonable grounds for holding that a person accused of an
offence is not likely to abscond, or otherwise misuse his liberty while
on bail, there seems no justification to require him first to submit to
custody, remain in prison for some days and then apply for bail.”
The Law Commission recommended acceptance of the suggestion.
11. The Law Commission in Para 31 of its 48th Report (July 1972)
made the following comments on the aforesaid clause:
“31. Provision for grant of anticipatory bail.—The Bill introduces a
provision for the grant of anticipatory bail. This is substantially in
accordance with the recommendation made by the previous
Commission. We agree that this would be a useful addition, though
we must add that it is in very exceptional cases that such a power
should be exercised.
We are further of the view that in order to ensure that the provision
is not put to abuse at the instance of unscrupulous petitioners, the
final order should be made only after notice to the Public Prosecutor.
The initial order should only be an interim one. Further, the relevant
section should make it clear that the direction can be issued only for
reasons to be recorded, and if the court is satisfied that such a
Sl. BAIL Bench
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direction is necessary in the interests of justice.

It will also be convenient to provide that notice of the interim order
as well as of the final orders will be given to the Superintendent of
Police forthwith.”
12. Police custody is an inevitable concomitant of arrest for non-
bailable offences. The concept of anticipatory bail is that a person
who apprehends his arrest in a non-bailable case can apply for grant
of bail to the Court of Session or to the High Court before the arrest.
Scope and ambit of Section 438 CrPC
13. It is apparent from the Statement of Objects and Reasons for
introducing Section 438 in the Code of Criminal Procedure, 1973 that
it was felt imperative to evolve a device by which an alleged accused
is not compelled to face ignominy and disgrace at the instance of
influential people who try to implicate their rivals in false cases. The
Code of Criminal Procedure, 1898 did not contain any specific
provision corresponding to the present Section 438 CrPC. The only
two clear provisions of law by which bail could be granted were
Sections 437 and 439 of the Code. Section 438 was incorporated in the
Code of Criminal Procedure, 1973 for the first time.
14. It is clear from the Statement of Objects and Reasons that the
purpose of incorporating Section 438 in CrPC was to recognise the
importance of personal liberty and freedom in a free and democratic
country. When we carefully analyse this section, the wisdom of the
legislature becomes quite evident and clear that the legislature was
keen to ensure respect for the personal liberty and also pressed in
service the age-old principle that an individual is presumed to be
innocent till he is found guilty by the court.
Law has been settled by an authoritative pronouncement of the
Supreme Court
23. The Constitution Bench of this Court in Gurbaksh Singh Sibbia v.
State of Punjab1 had an occasion to comprehensively deal with the
scope and ambit of the concept of anticipatory bail. Section 438 CrPC
is an extraordinary provision where the accused who apprehends
his/her arrest on accusation of having committed a non-bailable
offence can be granted bail in anticipation of arrest. The Constitution
Bench's relevant observations are set out as under: (SCC p. 584, para
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21)
“21. … A wise exercise of judicial power inevitably takes care of the
evil consequences which are likely to flow out of its intemperate use.
Every kind of judicial discretion, whatever may be the nature of the
matter in regard to which it is required to be exercised, has to be used
with due care and caution. In fact, an awareness of the context in
which the discretion is required to be exercised and of the reasonably
foreseeable consequences of its use, is the hallmark of a prudent
exercise of judicial discretion. One ought not to make a bugbear of
the power to grant anticipatory bail.”
33. Thus, the law laid down in para 42 by the Constitution Bench that
the normal rule is not to limit operation of the order of anticipatory
bail, was not taken into account by the Courts passing the subsequent
judgments. The observations made by the Courts in the subsequent
judgments have been made in ignorance of and without considering
the law laid down in para 42 which was binding on them. In these
circumstances, the observations made in the subsequent judgments
to the effect that anticipatory bail should be for a limited period of
time, must be construed to be per incuriam and the decision of the
Constitution Bench preferred.
Relevance and importance of personal liberty
36. All human beings are born with some unalienable rights like life,
liberty and pursuit of happiness. The importance of these natural
rights can be found in the fact that these are fundamental for their
proper existence and no other right can be enjoyed without the
presence of right to life and liberty. Life bereft of liberty would be
without honour and dignity and it would lose all significance and
meaning and the life itself would not be worth living. That is why
“liberty” is called the very quintessence of a civilised existence.
37. Origin of “liberty” can be traced in the ancient Greek civilisation.
The Greeks distinguished between the liberty of the group and the
liberty of the individual. In 431 BC, an Athenian statesman described
that the concept of liberty was the outcome of two notions, firstly,
protection of group from attack and secondly, the ambition of the
group to realise itself as fully as possible through the self-realisation
of the individual by way of human reason. Greeks assigned the duty
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of protecting their liberties to the State. According to Aristotle, as the

State was a means to fulfil certain fundamental needs of human
nature and was a means for development of individuals' personality
in association of fellow citizens so it was natural and necessary to
man. Plato found his “republic” as the best source for the
achievement of the self-realisation of the people.
38. Chambers' Twentieth Century Dictionary defines “liberty” as
“Freedom to do as one pleases, the unrestrained employment of
natural rights, power of free chance, privileges, exemption, relaxation
of restraint, the bounds within which certain privileges are enjoyed,
freedom of speech and action beyond ordinary civility.”
39. It is very difficult to define the term “liberty”. It has many facets
and meanings. The philosophers and moralists have praised freedom
and liberty but this term is difficult to define because it does not
resist any interpretation. The term “liberty” may be defined as the
affirmation by an individual or group of his or its own essence. It
needs the presence of three factors, firstly, harmonious balance of
personality, secondly, the absence of restraint upon the exercise of
that affirmation and thirdly, organisation of opportunities for the
exercise of a continuous initiative.
40. “Liberty” may be defined as a power of acting according to the
determinations of the will. According to Harold Laski, “liberty” was
essentially an absence of restraints and John Stuart Mill viewed that
“all restraint, qua restraint is an evil”. In the words of Jonathon
Edwards, the meaning of “liberty” and “freedom” is:
“Power, opportunity or advantage that any one has to do as he
pleases, or, in other words, his being free from hindrance or
impediment in the way of doing, or conducting in any respect, as he
wills.”
41. It can be found that “liberty” generally means the prevention of
restraints and providing such opportunities, the denial of which
would result in frustration and ultimately disorder. Restraints on
man's liberty are laid down by power used through absolute
discretion, which when used in this manner brings an end to
“liberty” and freedom is lost. At the same time “liberty” without
restraints would mean liberty won by one and lost by another. So
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“liberty” means doing of anything one desires but subject to the

desire of others.
42. As John Emerich Edward Dalberg in his monograph Essays on
Freedom and Power wrote that liberty is one of the most essential
requirements of the modern man. It is said to be the delicate fruit of a
mature civilisation.
43. A distinguished former Attorney General for India, M.C. Setalvad
in his treatise War and Civil Liberties observed that the French
Convention stipulates common happiness as the end of the society,
whereas Bentham postulates the greatest happiness of the greatest
number as the end of law. Article 19 of the Indian Constitution averts
to freedom and it enumerates certain rights regarding individual
freedom. These rights are vital and most important freedoms which
lie at the very root of liberty. He further observed that the concept of
civil liberty is essentially rooted in the philosophy of individualism.
According to this doctrine, the highest development of the individual
and the enrichment of his personality are the true function and end of
the State. It is only when the individual has reached the highest state
of perfection and evolved what is best in him that society and the
State can reach their goal of perfection. In brief, according to this
doctrine, the State exists mainly, if not solely, for the purpose of
affording the individual freedom and assistance for the attainment of
his growth and perfection. The State exists for the benefit of the
individual.
44. Mr Setalvad in the same treatise further observed that it is also
true that the individual cannot attain the highest in him unless he is
in possession of certain essential liberties which leave him free as it
were to breathe and expand. According to Justice Holmes, these
liberties are the indispensable conditions of a free society. The
justification of the existence of such a State can only be the
advancement of the interests of the individuals who compose it and
who are its members. Therefore, in a properly constituted democratic
State, there cannot be a conflict between the interests of the citizens
and those of the State. The harmony, if not the identity, of the
interests of the State and the individual, is the fundamental basis of
the modern democratic national State. And, yet the existence of the
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State and all government and even all law must mean in a measure
the curtailment of the liberty of the individual. But such a surrender
and curtailment of his liberty is essential in the interests of the
citizens of the State. The individuals composing the State must, in
their own interests and in order that they may be assured the
existence of conditions in which they can, with a reasonable amount
of freedom, carry on their other activities, endow those in authority
over them to make laws and regulations and adopt measures which
impose certain restrictions on the activities of the individuals.
45. Harold J. Laski in his monumental work in Liberty in the Modern
State observed that liberty always demands a limitation on political
authority. Power as such when uncontrolled is always the natural
enemy of freedom.
46. Roscoe Pound, an eminent and one of the greatest American Law
Professors aptly observed in his book The Development of
Constitutional Guarantees of Liberty that:
“whatever, ‘liberty’ may mean today, the liberty as guaranteed by
our bills of rights, is a reservation to the individual of certain
fundamental reasonable expectations involved in life in civilised
society and a freedom from arbitrary and unreasonable exercise of
the power and authority of those who are designated or chosen in a
politically organised society to adjust that society to individuals.”
47. Blackstone in Commentaries on the Laws of England, Vol. I, p. 134
aptly observed that:
“Personal liberty consists in the power of locomotion, of changing
situation or moving one's person to whatsoever place one's own
inclination may direct, without imprisonment or restraint unless by
due process of law.”
48. According to Dicey, a distinguished English author of the
Constitutional Law in his treatise on Constitutional Law observed that:
“Personal liberty, as understood in England, means in substance a
person's right not to be subjected to imprisonment, arrest, or other
physical coercion in any manner that does not admit of legal
justification.” (Dicey on Constitutional Law, 9th Edn., pp. 207-08.)
According to him, it is the negative right of not being subjected to
any form of physical restraint or coercion that constitutes the essence
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of personal liberty and not mere freedom to move to any part of the
Indian territory. In ordinary language personal liberty means liberty
relating to or concerning the person or body of the individual, and
personal liberty in this sense is the antithesis of physical restraint or
coercion.
49. An eminent English Judge, Lord Alfred Denning observed:
“By personal freedom I mean freedom of every law abiding citizen to
think what he will, to say what he will, and to go where he will on
his lawful occasion without hindrance from any person…. It must be
matched, of course, with social security by which I mean the peace
and good order of the community in which we live.”
50. An eminent former Judge of this Court, Justice H.R. Khanna in a
speech as published in 2 IJIL, Vol. 18 (1978), p. 133 observed that
“liberty postulates the creation of a climate wherein there is no
suppression of the human spirits, wherein, there is no denial of the
opportunity for the full growth of human personality, wherein head
is held high and there is no servility of the human mind or
enslavement of the human body.”
Right to life and personal liberty under the Constitution
51. We deem it appropriate to deal with the concept of personal
liberty under the Indian and other Constitutions.
52. The fundamental rights represent the basic values enriched by the
people of this country. The aim behind having elementary right of
the individual such as the Right to Life and Liberty is not fulfilled as
desired by the Framers of the Constitution. It is to preserve and
protect certain basic human rights against interference by the State.
The inclusion of a chapter in the Constitution is in accordance with
the trends of modern democratic thought. The object is to ensure the
inviolability of certain essential rights against political vicissitudes.
53. The Framers of the Indian Constitution followed the American
model in adopting and incorporating the fundamental rights for the
people of India. The American Constitution provides that no person
shall be deprived of his life, liberty, or property without due process
of law. The due process clause not only protects the property but also
life and liberty, similarly Article 21 of the Indian Constitution asserts
the importance of life and liberty. The said article reads as under:
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“21. Protection of life and personal liberty.—No person shall be deprived

of his life or personal liberty except according to procedure
established by law.”
The right secured by Article 21 is available to every citizen or non-
citizen, according to this article, two rights are secured:
1. Right to life.
2. Right to personal liberty.

54. Life and personal liberty are the most prized possessions of an
individual. The inner urge for freedom is a natural phenomenon of
every human being. Respect for life, liberty and property is not
merely a norm or a policy of the State but an essential requirement of
any civilised society.
55. This Court defined the term “personal liberty” immediately after
the Constitution came in force in India in A.K. Gopalan v. State of
Madras13. The expression “personal liberty” has wider as well as
narrow meaning. In the wider sense it includes not only immunity
from arrest and detention but also freedom of speech, association, etc.
In the narrow sense, it means immunity from arrest and detention.
The juristic conception of “personal liberty”, when used in the latter
sense, is that it consists of freedom of movement and locomotion.
56. Mukherjea, J. in A.K. Gopalan case13 observed that “personal
liberty” means liberty relating to or concerning the person or body of
the individual and it is, in this sense, antithesis of physical restraint
or coercion. “Personal liberty” means a personal right not to be
subjected to imprisonment, arrest or other physical coercion in any
manner that does not admit of legal justification. This negative right
constitutes the essence of personal liberty. Patanjali Shastri, J.,
however, said that whatever may be the generally accepted
connotation of the expression “personal liberty”, it was used in
Article 21 in a sense which excludes the freedom dealt with in Article
19. Thus, the Court gave a narrow interpretation to “personal
liberty”. This Court excluded certain varieties of rights, as separately
mentioned in Article 19, from the purview of “personal liberty”
guaranteed by Article 21.
57. In Kharak Singh v. State of U.P.14, Subba Rao, J. defined “personal
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liberty”, as a right of an individual to be free from restrictions or

encroachment on his person whether these are directly imposed or
indirectly brought about by calculated measure. The Court held that
“personal liberty” in Article 21 includes all varieties of freedoms
except those included in Article 19.
58. In Maneka Gandhi v. Union of India15 this Court expanded the
scope of the expression “personal liberty” as used in Article 21 of the
Constitution of India. The Court rejected the argument that the
expression “personal liberty” must be so interpreted as to avoid
overlapping between Article 21 and Article 19(1). It was observed:
(SCC p. 280, para 5)
“5. … The expression ‘personal liberty’ in Article 21 is of the widest
amplitude and it covers a variety of rights which go to constitute the
personal liberty of man and some of them have been raised to the
status of distinct fundamental rights and given additional protection
under Article 19.”
So, the phrase “personal liberty” is very wide and includes all
possible rights which go to constitute personal liberty, including
those which are mentioned in Article 19.
59. Right to life is one of the basic human rights and not even the
State has the authority to violate that right. (State of A.P. v. Challa
Ramkrishna Reddy16.)
60. Article 21 is a declaration of deep faith and belief in human rights.
In this pattern of guarantee woven in Chapter III of this Constitution,
personal liberty of man is at the root of Article 21 and each
expression used in this article enhances human dignity and values. It
lays foundation for a society where rule of law has primary and not
arbitrary or capricious exercise of power. (Kartar Singh v. State of
Punjab17.)
61. While examining the ambit, scope and content of the expression
“personal liberty” in Kartar Singh case17, it was held that the term is
used in this article as a compendious term to include within itself all
varieties of rights which goes to make up the “personal liberty” of
man other than those dealt within several clauses of Article 19(1).
While Article 19(1) deals with particular species or attributes of that
freedom, “personal liberty” in Article 21 takes on and comprises the
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residue.
62. The early approach to Article 21 which guarantees right to life
and personal liberty was circumscribed by literal interpretation in
A.K. Gopalan13. But in course of time, the scope of this application of
the article against arbitrary encroachment by the executives has been
expanded by liberal interpretation of the components of the article in
tune with the relevant international understanding. Thus protection
against arbitrary privation of “life” no longer means mere protection
of death, or physical injury, but also an invasion of the right to “live”
with human dignity and would include all these aspects of life which
would go to make a man's life meaningful and worth living, such as
his tradition, culture and heritage. (Francis Coralie Mullin v. UT of
Delhi18.)
63. Article 21 has received very liberal interpretation by this Court. It
was held:
The right to live with human dignity and same does not connote
continued drudging. It takes within its fold some process of
civilisation which makes life worth living and expanded concept of
life would mean the tradition, culture, and heritage of the person
concerned. (P. Rathinam v. Union of India19, at SCC p. 409, para 27)
64. The object of Article 21 is to prevent encroachment upon personal
liberty in any manner. Article 21 is repository of all human rights
essential for a person or a citizen. A fruitful and meaningful life
presupposes life full of dignity, honour, health and welfare. In the
modern “Welfare Philosophy”, it is for the State to ensure these
essentials of life to all its citizens, and if possible to non-citizens.
While invoking the provisions of Article 21, and by referring to the
oftquoted statement of Joseph Addison, “Better to die ten thousand
deaths than wound my honour”, the Apex Court in Khedat Mazdoor
Chetna Sangath v. State of M.P.20 posed to itself a question “If dignity
or honour vanishes what remains of life?” This is the significance of
the Right to Life and Personal Liberty guaranteed under the
Constitution of India in its Third Part.
65. This Court in Central Inland Water Transport Corpn. Ltd. v. Brojo
Nath Ganguly21 observed that the law must respond and be
responsive to the felt and discernible compulsions of circumstances
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that would be equitable, fair and just, and unless there is anything to
the contrary in the statute, court must take cognizance of that fact
and act accordingly.
66. This Court remarked that an undertrial prisoner should not be
put in fetters while he is being taken from prison to court or back to
prison from court. Steps other than putting him in fetters will have to
be taken to prevent his escape. In Prem Shankar Shukla v. Delhi
Admn.22 this Court has made the following observations:
“31. … the Punjab Police Manual insofar as it puts the ordinary Indian
beneath the better class breed (Paras 26.21-A and 26.22 of Chapter
XXVI) is untenable and arbitrary and direct that Indian humane shall
not be dichotomised and the common run discriminated against
regarding handcuffs. The provisions in Para 26.22(1)(a) that every
undertrial who is accused of a non-bailable offence punishable with
more than 3 years' prison term shall be routinely handcuffed is
violative of Articles 14, 19 and 21. … The nature of the accusation is
not the criterion. The clear and present danger of escape breaking out of the
police control is the determinant. And for this there must be clear material,
not glib assumption, record of reasons and judicial oversight and summary
hearing and direction by the court where the victim is produced. …
Handcuffs are not summary punishment vicariously imposed at
police level, at once obnoxious and irreversible. Armed escorts,
worth the salt, can overpower any unarmed undertrial and extra
guards can make up exceptional needs. In very special situations,
[the application of irons is not ruled out]. The same reasoning applies
to (e) and (f). Why torture the prisoner because others will
demonstrate or attempt his rescue? The plain law of undertrial
custody is thus contrary to the unedifying escort practice. (SCC p.
540, para 31)
30. Even in cases where, in extreme circumstances, handcuffs have to
be put on the prisoner, the escorting authority must record
contemporaneously the reason for doing so. Otherwise, under Article
21 the procedure will be unfair and bad in law. … The minions of the
police establishment must make good their security recipes by
getting judicial approval. And, once the court directs that handcuffs
shall be off, no escorting authority can overrule judicial direction.
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This is implicit in Article 21 which insists upon fairness,

reasonableness and justice in the very procedure which authorises
stringent deprivation of life and liberty. (SCC pp. 539-40, para 30)
23. … [It is] implicit in Articles 14 and 19 that when there is no
compulsive need to fetter a person's limbs, it is sadistic, capricious,
despotic and demoralising to humble a man by manacling him. Such
arbitrary conduct surely slaps Article 14 on the face. The minimal
freedom of movement which even a detainee is entitled to under
Article 19 … cannot be cut down cruelly by application of handcuffs
or other hoops. It will be unreasonable so to do unless the State is
able to make out that no other practical way of forbidding escape is
available, the prisoner being so dangerous and desperate and the
circumstances so hostile to safekeeping. (SCC pp. 537-38, para 23)
43. … whether handcuffs or other restraint should be imposed on a
prisoner is primarily a matter for the decision of the authority
responsible for his custody. … But … there is room for imposing a
supervisory regime over the exercise of that power. One sector of
supervisory jurisdiction could appropriately lie with the court trying
the accused, and it would be desirable for the custodial authority to
inform that court of the circumstances in which, and the justification
for imposing a restraint on the body of the accused. It should be for
the court concerned to work out the modalities of the procedure
requisite for the purpose of enforcing such control. (SCC p. 544, para
43)”
(emphasis in original)
67. After dealing with the concept of life and liberty under the Indian
Constitution, we would like to have a brief survey of other countries
to ascertain how life and liberty has been protected in other
countries.
United Kingdom
68. Life and personal liberty has been given prime importance in the
United Kingdom. It was in 1215 that the people of England revolted
against King John and enforced their rights; first time the King had
acknowledged that there were certain rights of the subject which
could be called Magna Carta, in 1215. In 1628 the Petition of Rights
was presented to King Charles I which was the first step in the
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transfer of sovereignty from the King to Parliament. It was passed as

the Bill of Rights in 1689.
69. In the Magna Carta, it is stated “no free man shall be taken, or
imprisoned or disseised or outlawed or banished or any ways
destroyed, nor will the King pass upon him or commit him to prison,
unless by the judgment of his peers or the law of the land”.
70. Right to life is the most fundamental of all human rights and any
decision affecting human right or which may put an individual's life
at risk must call for the most anxious scrutiny. (See R. v. Secy. of State
for the Home Deptt., ex p Bugdaycay23.) The sanctity of human life is
probably the most fundamental of the human social values. It is
recognised in all civilised societies and their legal systems and by the
internationally recognised statements of human rights. [See R.
(Pretty) v. Director of Public Prosecutions24.]
USA
71. The importance of personal liberty is reflected in the Fifth
Amendment to the Constitution of USA (1791) which declares as
under:
“No person shall be … deprived of his life, liberty or property,
without due process of law. [The ‘due process’ clause was adopted in
Section 1(a) of the Canadian Bill of Rights Act, 1960. In the Canada
Act, 1982, this expression has been substituted by ‘the principles of
fundamental justice’ (Section 7).]”
72. The Fourteenth Amendment imposes similar limitation on the
State authorities. These two provisions are conveniently referred to
as the “due process clauses”. Under the above clauses the American
judiciary claims to declare a law as bad, if it is not in accordance with
“due process”, even though the legislation may be within the
competence of the legislature concerned. Due process conveniently
understood means procedural regularity and fairness. (Constitutional
Interpretation by Craig R. Ducat, 8th Edn. 2002, p. 475.)
West Germany
73. Article 2(2) of the West German Constitution (1948) declares:
“2.(2) Everyone shall have the right to life and physical inviolability.
The freedom of the individual shall be inviolable. These rights may
be interfered with only on the basis of the legal order.”
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Though the freedom of life and liberty guaranteed by the above

article may be restricted, such restriction will be valid only if it is in
conformity with the “legal order” (or pursuant to a law, according to
official translation). Being a basic right, the freedom guaranteed by
Article 2(2) is binding on the legislative, administrative and judicial
organs of the State [Article 1(3)]. This gives the individual the right to
challenge the validity of a law or an executive act violative of the
freedom of the person by a constitutional complaint to the Federal
Constitutional Court, under Article 93. Procedural guarantee is given
by Articles 103(1) and 104. Articles 104(1)-(2) provides:
“104. (1) The freedom of the individual may be restricted only on the
basis of a formal law and only with due regard to the forms
prescribed therein….
(2) Only the Judge shall decide on the admissibility and continued
deprivation of liberty.”
74. These provisions correspond to Article 21 of our Constitution and
the court is empowered to set a man to liberty if it appears that he
has been imprisoned without the authority of a formal law or in
contravention of the procedure prescribed there.

Japan
75. Article 31 of the Japanese Constitution of 1946 says:
“No person shall be deprived of life or liberty nor shall any other
criminal penalty be imposed, except according to procedure
established by law.”
This article is similar to Article 21 of our Constitution save that it
includes other criminal penalties, such as fine or forfeiture within its
ambit.
Canada
76. Section 1(a) of the Canadian Bill of Rights Act, 1960 adopted the
“due process” clause from the American Constitution. But the
difference in the Canadian set-up was due to the fact that this Act
was not a constitutional instrument to impose a direct limitation on
the legislature but only a statute for interpretation of Canadian
statutes, which, again, could be excluded from the purview of the Act
of 1960, in particular cases, by an express declaration made by the
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Canadian Parliament itself (Section 2). The result was obvious: The
Canadian Supreme Court in Curr v. R.25 held that the Canadian
Court would not import “substantive reasonableness” into Section
1(a), because of the unsalutary experience of substantive due process
in USA; and that as to “procedural reasonableness”, Section 1(a) of
the Bill of Rights Act only referred to “the legal processes recognised
by Parliament and the courts in Canada”. The result was that in
Canada, the “due process clause” lost its utility as an instrument of
judicial review of legislation and it came to mean practically the same
thing as whatever the legislature prescribes, — much the same as
“procedure established by law” in Article 21 of the Constitution of
India, as interpreted in A.K. Gopalan13.
Bangladesh
77. Article 32 of the Constitution of Bangladesh, 1972 (3 SCW 385)
reads as under:
“32. Protection of right to life and personal liberty.—No person shall be
deprived of life or personal liberty save in accordance with law.”
This provision is similar to Article 21 of the Indian Constitution.
Consequently, unless controlled by some other provision, it should
be interpreted as in India.
Pakistan
78. Article 9 Right to Life and Liberty:
“9. Security of person.—No person shall be deprived of life and liberty
save in accordance with law.”
Nepal
79. In the 1962 Constitution of Nepal, there is Article 11(1) which
deals with right to life and liberty which is identical with Article 21 of
the Indian Constitution.
International Charters
Universal Declaration of Human Rights, 1948
80. Article 3 of the Universal Declaration says:
“3. Everyone has the right to life, liberty and security of person.”
Article 9 provides:
“9. No one shall be subjected to arbitrary arrest, detention or exile.”
Article 10 says:
“10. Everyone is entitled in full equality to a fair and public hearing
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by an independent and impartial tribunal, in the determination of his

rights and obligations and of any criminal charge against him.” [As
to its legal effect, see M. v. United Nations & Belgium26 (Inter LR at pp.
447, 451.)]
Covenant on Civil and Political Rights (1966)
81. Article 9(1) says:
“Everyone has the right to liberty and security of person. No one
shall be subjected to arbitrary arrest or detention. No one shall be
deprived of his liberty except on such grounds and in accordance
with such procedure as are established by law.”
European Convention for the Protection of Human Rights and
Fundamental Freedoms, 1950
82. This Convention contains a most elaborate and detailed
codification of the rights and safeguards for the protection of life and
personal liberty against arbitrary invasion.
83. In every civilised democratic country, liberty is considered to be
the most precious human right of every person. The Law
Commission of India in its 177th Report under the heading
“Introduction to the Doctrine of Arrest” has described as follows:
“Liberty is the most precious of all the human rights. It has been the
founding faith of the human race for more than 200 years. Both the
American Declaration of Independence, 1776 and the French
Declaration of the Rights of Man and the Citizen, 1789, spoke of
liberty being one of the natural and inalienable rights of man. The
Universal Declaration of Human Rights adopted by the General
Assembly of the United Nations on 10-12-1948 contains several
articles designed to protect and promote the liberty of individual. So
does the International Covenant on Civil and Political Rights, 1966.
Above all, Article 21 of the Constitution of India proclaims that no
one shall be deprived of his right to personal liberty except in
accordance with the procedure prescribed by law. Even Articles 20(1)
& (2) and Article 22 are born out of a concern for human liberty. As it
is often said, ‘one realises the value of liberty only when he is
deprived of it’. Liberty, along with equality is the most fundamental
of human rights and the fundamental freedoms guaranteed by the
Constitution. Of equal importance is the maintenance of peace, law
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and order in the society. Unless, there is peace, no real progress is

possible. Societal peace lends stability and security to the polity. It
provides the necessary conditions for growth, whether it is in the
economic sphere or in the scientific and technological spheres.”
84. Just as liberty is precious to an individual, so is the society's
interest in maintenance of peace, law and order. Both are equally
important.
85. It is a matter of common knowledge that a large number of
undertrials are languishing in jail for a long time even for allegedly
committing very minor offences. This is because Section 438 CrPC
has not been allowed its full play. The Constitution Bench in Sibbia
case1 clearly mentioned that Section 438 CrPC is extraordinary
because it was incorporated in the Code of Criminal Procedure, 1973
and before that other provisions for grant of bail were Sections 437
and 439 CrPC. It is not extraordinary in the sense that it should be
invoked only in exceptional or rare cases. Some Courts of smaller
strength have erroneously observed that Section 438 CrPC should be
invoked only in exceptional or rare cases. Those orders are contrary
to the law laid down by the judgment of the Constitution Bench in
Sibbia case1.
86. According to the Report of the National Police Commission, when
the power of arrest is grossly abused and clearly violates the personal
liberty of the people, as enshrined under Article 21 of the
Constitution, then the courts need to take serious notice of it. When
conviction rate is admittedly less than 10%, then the police should be
slow in arresting the accused. The courts considering the bail
application should try to maintain fine balance between the societal
interest vis-à-vis personal liberty while adhering to the fundamental
principle of criminal jurisprudence that the accused is presumed to
be innocent till he is found guilty by the competent court.
87. The complaint filed against the accused needs to be thoroughly
examined including the aspect whether the complainant has filed a
false or frivolous complaint on earlier occasion. The court should also
examine the fact whether there is any family dispute between the
accused and the complainant and the complainant must be clearly
told that if the complaint is found to be false or frivolous, then strict
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action will be taken against him in accordance with law. If the

connivance between the complainant and the investigating officer is
established then action be taken against the investigating officer in
accordance with law.
88. The gravity of charge and the exact role of the accused must be
properly comprehended. Before arrest, the arresting officer must
record the valid reasons which have led to the arrest of the accused in
the case diary. In exceptional cases the reasons could be recorded
immediately after the arrest, so that while dealing with the bail
application, the remarks and observations of the arresting officer can
also be properly evaluated by the court.
89. It is imperative for the courts to carefully and with meticulous
precision evaluate the facts of the case. The discretion must be
exercised on the basis of the available material and the facts of the
particular case. In cases where the court is of the considered view
that the accused has joined investigation and he is fully cooperating
with the investigating agency and is not likely to abscond, in that
event, custodial interrogation should be avoided.
90. A great ignominy, humiliation and disgrace is attached to the
arrest. Arrest leads to many serious consequences not only for the
accused but for the entire family and at times for the entire
community. Most people do not make any distinction between arrest
at a pre-conviction stage or post-conviction stage.
Whether the powers under Section 438 CrPC are subject to limitation
of Section 437 CrPC?
91. The question which arises for consideration is whether the
powers under Section 438 CrPC are unguided or uncanalised or are
subject to all the limitations of Section 437 CrPC? The Constitution
Bench in Sibbia case1 has clearly observed that there is no justification
for reading into Section 438 CrPC the limitations mentioned in
Section 437 CrPC. The Court further observed that the plentitude of
the section must be given its full play. The Constitution Bench has
also observed that the High Court is not right in observing that the
accused must make out a “special case” for the exercise of the power
to grant anticipatory bail. This virtually, reduces the salutary power
conferred by Section 438 CrPC to a dead letter. The Court observed
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that: (SCC p. 584, para 21)

“21. … We do not see why the provisions of Section 438 CrPC should
be suspected as containing something volatile or incendiary, which
needs to be handled with the greatest care and caution imaginable.”
92. As aptly observed in Sibbia case1 that: (SCC p. 584, para 21)
“21. … A wise exercise of judicial power inevitably takes care of the
evil consequences which are likely to flow out of its intemperate use.
Every kind of judicial discretion, whatever may be the nature of the
matter in regard to which it is required to be exercised, has to be used
with due care and caution. In fact, an awareness of the context in
which the discretion is required to be exercised and of the reasonably
foreseeable consequences of its use, is the hallmark of a prudent
exercise of judicial discretion. One ought not to make a bugbear of
the power to grant anticipatory bail.”
93. The Constitution Bench in the same judgment also observed that a
person seeking anticipatory bail is still a free man entitled to the
presumption of innocence. He is willing to submit to restraints and
conditions on his freedom, by the acceptance of conditions which the
court may deem fit to impose, in consideration of the assurance that
if arrested, he shall be enlarged on bail.
94. The proper course of action ought to be that after evaluating the
averments and accusation available on the record if the court is
inclined to grant anticipatory bail then an interim bail be granted and
notice be issued to the Public Prosecutor. After hearing the Public
Prosecutor the court may either reject the bail application or confirm
the initial order of granting bail. The court would certainly be
entitled to impose conditions for the grant of bail. The Public
Prosecutor or the complainant would be at liberty to move the same
court for cancellation or modifying the conditions of bail any time if
liberty granted by the court is misused. The bail granted by the court
should ordinarily be continued till the trial of the case.
95. The order granting anticipatory bail for a limited duration and
thereafter directing the accused to surrender and apply for a regular
bail is contrary to the legislative intention and the judgment of the
Constitution Bench in Sibbia case1.
96. It is a settled legal position that the court which grants the bail
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also has the power to cancel it. The discretion of grant or cancellation
of bail can be exercised either at the instance of the accused, the
Public Prosecutor or the complainant on finding new material or
circumstances at any point of time.
97. The intention of the legislature is quite clear that the power of
grant or refusal of bail is entirely discretionary. The Constitution
Bench in Sibbia case1 has clearly stated that grant and refusal is
discretionary and it should depend on the facts and circumstances of
each case. The Constitution Bench in the said case has aptly observed
that we must respect the wisdom of the legislature entrusting this
power to the superior courts, namely, the High Court and the Court
of Session. The Constitution Bench observed as under: (SCC p. 589,
para 33)
“33. We would, therefore, prefer to leave the High Court and the
Court of Session to exercise their jurisdiction under Section 438 by a
wise and careful use of their discretion which, by their long training
and experience, they are ideally suited to do. The ends of justice will
be better served by trusting these courts to act objectively and in
consonance with principles governing the grant of bail which are
recognised over the years, than by divesting them of their discretion
which the legislature has conferred upon them, by laying down
inflexible rules of general application. It is customary, almost chronic,
to take a statute as one finds it on the ground that, after all ‘the
legislature in its wisdom’ has thought it fit to use a particular
expression. A convention may usefully grow whereby the High
Court and the Court of Session may be trusted to exercise their
discretionary powers in their wisdom, especially when the discretion
is entrusted to their care by the legislature in its wisdom. If they err,
they are liable to be corrected.”

Grant of bail for limited period is contrary to the legislative

intention and law declared by the Constitution Bench
98. The court which grants the bail has the right to cancel the bail
according to the provisions of the General Clauses Act but ordinarily
after hearing the Public Prosecutor when the bail order is confirmed
then the benefit of the grant of the bail should continue till the end of
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the trial of that case. The judgment in Salauddin Abdulsamad Shaikh3 is

contrary to the legislative intent and the spirit of the very provisions
of the anticipatory bail itself and has resulted in an artificial and
unreasonable restriction on the scope of enactment contrary to the
legislative intention.
99. The restriction on the provision of anticipatory bail under Section
438 CrPC limits the personal liberty of the accused granted under
Article 21 of the Constitution. The added observation is nowhere
found in the enactment and bringing in restrictions which are not
found in the enactment is again an unreasonable restriction. It would
not stand the test of fairness and reasonableness which is implicit in
Article 21 of the Constitution after the decision in Maneka Gandhi
case15; in which the Court observed that: (Sibbia case1, SCC p. 586,
para 26)
“26. … in order to meet the challenge of Article 21 of the
Constitution, the procedure established by law for depriving a
person of his liberty must be fair, just and reasonable.”
100. Section 438 CrPC does not mention anything about the duration
to which a direction for release on bail in the event of arrest can be
granted. The order granting anticipatory bail is a direction
specifically to release the accused on bail in the event of his arrest.
Once such a direction of anticipatory bail is executed by the accused
and he is released on bail, the court concerned would be fully
justified in imposing conditions including the direction of joining the
investigation.
101. The court does not use the expression “anticipatory bail” but it
provides for issuance of direction for the release on bail by the High
Court or the Court of Session in the event of arrest. According to the
aforesaid judgment of Salauddin case3, the accused has to surrender
before the trial court and only thereafter he/she can make prayer for
grant of bail by the trial court. The trial court would release the
accused only after he has surrendered.
102. In pursuance of the order of the Court of Session or the High
Court, once the accused is released on bail by the trial court, then it
would be unreasonable to compel the accused to surrender before the
trial court and again apply for regular bail.
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103. The court must bear in mind that at times the applicant would
approach the court for grant of anticipatory bail on mere
apprehension of being arrested on accusation of having committed a
non-bailable offence. In fact, the investigating agency concerned may
not otherwise arrest that applicant who has applied for anticipatory
bail but just because he makes an application before the court and
gets the relief from the court for a limited period and thereafter he
has to surrender before the trial court and only thereafter his bail
application can be considered and the life of anticipatory bail comes
to an end. This may lead to disastrous and unfortunate consequences.
The applicant who may not have otherwise lost his liberty loses it
because he chose to file application of anticipatory bail on mere
apprehension of being arrested on accusation of having committed a
non-bailable offence. No arrest should be made because it is lawful
for the police officer to do so. The existence of power to arrest is one
thing and the justification for the exercise of it is quite another. The
police officer must be able to justify the arrest apart from his power
to do so. This finding of the said judgment (supra) is contrary to the
legislative intention and law which has been declared by a
Constitution Bench of this Court in Sibbia case1.
104. The validity of the restrictions imposed by the Apex Court,
namely, that the accused released on anticipatory bail must submit
himself to custody and only thereafter can apply for regular bail; this
is contrary to the basic intention and spirit of Section 438 CrPC. It is
also contrary to Article 21 of the Constitution. The test of fairness and
reasonableness is implicit under Article 21 of the Constitution of
India. Directing the accused to surrender to custody after the limited
period amounts to deprivation of his personal liberty.
105. It is a settled legal position crystallised by the Constitution Bench
of this Court in Sibbia case1 that the courts should not impose
restrictions on the ambit and scope of Section 438 CrPC which are not
envisaged by the legislature. The Court cannot rewrite the provision
of the statute in the garb of interpreting it.
106. It is unreasonable to lay down strict, inflexible and rigid rules for
exercise of such discretion by limiting the period of which an order
under this section could be granted. We deem it appropriate to
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reproduce some observations of the judgment of the Constitution

Bench of this Court in Sibbia case1: (SCC pp. 576-77 & 580-81, paras
10, 12 & 14-15)
“10. … The validity of that section must accordingly be examined by
the test of fairness and reasonableness which is implicit in Article 21.
If the legislature itself were to impose an unreasonable restriction on
the grant of anticipatory bail, such a restriction could have been
struck down as being violative of Article 21. Therefore, while
determining the scope of Section 438, the court should not impose
any unfair or unreasonable limitation on the individual's right to
obtain an order of anticipatory bail. Imposition of an unfair or
unreasonable limitation, according to the learned counsel, would be
violative of Article 21, irrespective of whether it is imposed by
legislation or by judicial decision.
* * *
12. … Clause (1) of Section 438 is couched in terms, broad and
unqualified. By any known canon of construction, words of width
and amplitude ought not generally to be cut down so as to read into
the language of the statute restraints and conditions which the
legislature itself did not think it proper or necessary to impose. This
is especially true when the statutory provision which falls for
consideration is designed to secure a valuable right like the right to
personal freedom and involves the application of a presumption as
salutary and deep grained in our criminal jurisprudence as the
presumption of innocence.
* * *
14. … ‘I desire in the first instance to point out that the discretion
given by the section is very wide. … Now it seems to me that when
the Act is so expressed to provide a wide discretion, … it is not
advisable to lay down any rigid rules for guiding that discretion. I do
not doubt that the rules enunciated by the Master of the Rolls in the
present case are useful maxims in general, and that in general they
reflect the point of view from which Judges would regard an
application for relief. But I think it ought to be distinctly understood
that there may be cases in which any or all of them may be
disregarded. If it were otherwise the free discretion given by the
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statute would be fettered by limitations which have nowhere been

enacted. It is one thing to decide what is the true meaning of the
language contained in an Act of Parliament. It is quite a different
thing to place conditions upon a free discretion entrusted by statute
to the court where the conditions are not based upon statutory
enactment at all. It is not safe, I think, to say that the court must and
will always insist upon certain things when the Act does not require
them, and the facts of some unforeseen case may make the court wish
it had kept a free hand.’*
15. … The concern of the courts generally is to preserve their
discretion without meaning to abuse it. It will be strange if we exhibit
concern to stultify the discretion conferred upon the courts by law.”

107. The Apex Court in Salauddin case3 held that anticipatory bail
should be granted only for a limited period and on the expiry of that
duration it should be left to the regular court to deal with the matter
is not the correct view. The reason quoted in the said judgment is that
anticipatory bail is granted at a stage when an investigation is
incomplete and the court is not informed about the nature of
evidence against the alleged offender. The said reason would not be
right as the restriction is not seen in the enactment and bail orders by
the High Court and the Sessions Court are granted under Sections
437 and 439 also at such stages and they are granted till the trial.
108. The views expressed by this Court in all the above referred
judgments have to be reviewed and once the anticipatory bail is
granted then the protection should ordinarily be available till the end
of the trial unless the interim protection by way of the grant of
anticipatory bail is curtailed when the anticipatory bail granted by
the court is cancelled by the court on finding fresh material or
circumstances or on the ground of abuse of the indulgence by the
accused.
Scope and ambit of anticipatory bail
109. A good deal of misunderstanding with regard to the ambit and
scope of Section 438 CrPC could have been avoided in case the
Constitution Bench decision of this Court in Sibbia case1 was correctly
understood, appreciated and applied. This Court in Sibbia case1 laid
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down the following principles with regard to anticipatory bail:

(a) Section 438(1) is to be interpreted in the light of Article 21 of the
Constitution of India.
(b) Filing of FIR is not a condition precedent to exercise of power
under Section 438.
(c) Order under Section 438 would not affect the right of police to
conduct investigation.
(d) Conditions mentioned in Section 437 cannot be read into Section
438.
(e) Although the power to release on anticipatory bail can be
described as of an “extraordinary” character this would “not justify
the conclusion that the power must be exercised in exceptional cases
only”. Powers are discretionary to be exercised in the light of the
circumstances of each case.
(f) Initial order can be passed without notice to the Public Prosecutor.
Thereafter, notice must be issued forthwith and question ought to be
re-examined after hearing. Such ad interim order must conform to
requirements of the section and suitable conditions should be
imposed on the applicant.
110. The Law Commission in July 2002 has severely criticised the
police of our country for the arbitrary use of power of arrest which,
the Commission said, is the result of the vast discretionary powers
conferred upon them by this Code. The Commission expressed
concern that there is no internal mechanism within the Police
Department to prevent misuse of law in this manner and the stark
reality that complaint lodged in this regard does not bring any result.
The Commission intends to suggest amendments in the Criminal
Procedure Code and has invited suggestions from various quarters.
Reference is made in this article to the 41st Report of the Law
Commission wherein the Commission saw “no justification” to
require a person to submit to custody, remain in prison for some
days and then apply for bail even when there are reasonable grounds
for holding that the person accused of an offence is not likely to
abscond or otherwise misuse his liberty. Discretionary power to
order anticipatory bail is required to be exercised keeping in mind
these sentiments and spirit of the judgments of this Court in Sibbia
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case1 and Joginder Kumar v. State of U.P.27

Relevant consideration for exercise of the power

111. No inflexible guidelines or straitjacket formula can be provided
for grant or refusal of anticipatory bail. We are clearly of the view
that no attempt should be made to provide rigid and inflexible
guidelines in this respect because all circumstances and situations of
future cannot be clearly visualised for the grant or refusal of
anticipatory bail. In consonance with the legislative intention the
grant or refusal of anticipatory bail should necessarily depend on the
facts and circumstances of each case. As aptly observed in the
Constitution Bench decision in Sibbia case1 that the High Court or the
Court of Session has to exercise their jurisdiction under Section 438
CrPC by a wise and careful use of their discretion which by their long
training and experience they are ideally suited to do. In any event,
this is the legislative mandate which we are bound to respect and
honour.
112. The following factors and parameters can be taken into
consideration while dealing with the anticipatory bail:
(i) The nature and gravity of the accusation and the exact role of the
accused must be properly comprehended before arrest is made;
(ii) The antecedents of the applicant including the fact as to whether
the accused has previously undergone imprisonment on conviction
by a court in respect of any cognizable offence;
(iii) The possibility of the applicant to flee from justice;
(iv) The possibility of the accused's likelihood to repeat similar or
other offences;
(v) Where the accusations have been made only with the object of
injuring or humiliating the applicant by arresting him or her;
(vi) Impact of grant of anticipatory bail particularly in cases of large
magnitude affecting a very large number of people;
(vii) The courts must evaluate the entire available material against the
accused very carefully. The court must also clearly comprehend the
exact role of the accused in the case. The cases in which the accused is
implicated with the help of Sections 34 and 149 of the Penal Code,
1860 the court should consider with even greater care and caution
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because overimplication in the cases is a matter of common

knowledge and concern;
(viii) While considering the prayer for grant of anticipatory bail, a
balance has to be struck between two factors, namely, no prejudice
should be caused to the free, fair and full investigation and there
should be prevention of harassment, humiliation and unjustified
detention of the accused;
(ix) The court to consider reasonable apprehension of tampering of
the witness or apprehension of threat to the complainant;
(x) Frivolity in prosecution should always be considered and it is
only the element of genuineness that shall have to be considered in
the matter of grant of bail and in the event of there being some doubt
as to the genuineness of the prosecution, in the normal course of
events, the accused is entitled to an order of bail.
113. Arrest should be the last option and it should be restricted to
those exceptional cases where arresting the accused is imperative in
the facts and circumstances of that case. The court must carefully
examine the entire available record and particularly the allegations
which have been directly attributed to the accused and these
allegations are corroborated by other material and circumstances on
record.
114. These are some of the factors which should be taken into
consideration while deciding the anticipatory bail applications. These
factors are by no means exhaustive but they are only illustrative in
nature because it is difficult to clearly visualise all situations and
circumstances in which a person may pray for anticipatory bail. If a
wise discretion is exercised by the Judge concerned, after
consideration of the entire material on record then most of the
grievances in favour of grant of or refusal of bail will be taken care of.
The legislature in its wisdom has entrusted the power to exercise this
jurisdiction only to the Judges of the superior courts. In consonance
with the legislative intention we should accept the fact that the
discretion would be properly exercised. In any event, the option of
approaching the superior court against the Court of Session or the
High Court is always available.
Sl. BAIL Bench
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Irrational and indiscriminate arrests are gross violation of human

rights
115. In Joginder Kumar case27 a three-Judge Bench of this Court has
referred to the 3rd Report of the National Police Commission, in
which it is mentioned that the quality of arrests by the police in India
mentioned the power of arrest as one of the chief sources of
corruption in the police. The Report suggested that, by and large,
nearly 60% of the arrests were either unnecessary or unjustified and
that such unjustified police action accounted for 43.2% of the
expenditure of the jails.
116. Personal liberty is a very precious fundamental right and it
should be curtailed only when it becomes imperative according to
the peculiar facts and circumstances of the case.
117. In case, the State considers the following suggestions in proper
perspective then perhaps it may not be necessary to curtail the
personal liberty of the accused in a routine manner. These
suggestions are only illustrative and not exhaustive:
(1) Direct the accused to join the investigation and only when the
accused does not cooperate with the investigating agency, then only
the accused be arrested.
(2) Seize either the passport or such other related documents, such as,
the title deeds of properties or the fixed deposit receipts/share
certificates of the accused.
(3) Direct the accused to execute bonds.
(4) The accused may be directed to furnish sureties of a number of
persons which according to the prosecution are necessary in view of
the facts of the particular case.
(5) The accused be directed to furnish undertaking that he would not
visit the place where the witnesses reside so that the possibility of
tampering of evidence or otherwise influencing the course of justice
can be avoided.
(6) Bank accounts be frozen for small duration during the
investigation.
118. In case the arrest is imperative, according to the facts of the case,
in that event, the arresting officer must clearly record the reasons for
the arrest of the accused before the arrest in the case diary, but in
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exceptional cases where it becomes imperative to arrest the accused

immediately, the reasons be recorded in the case diary immediately
after the arrest is made without loss of any time so that the court has
an opportunity to properly consider the case for grant or refusal of
bail in the light of reasons recorded by the arresting officer.
119. Exercise of jurisdiction under Section 438 CrPC is an extremely
important judicial function of a Judge and must be entrusted to
judicial officers with some experience and good track record. Both
the individual and society have vital interest in orders passed by the
courts in anticipatory bail applications.
120. It is imperative for the High Courts through its judicial
academies to periodically organise workshops, symposiums,
seminars and lectures by the experts to sensitise judicial officers,
police officers and investigating officers so that they can properly
comprehend the importance of personal liberty vis-à-vis social
interests. They must learn to maintain fine balance between the
personal liberty and the social interests.
121. The performance of the judicial officers must be periodically
evaluated on the basis of the cases decided by them. In case, they
have not been able to maintain balance between personal liberty and
societal interests, the lacunae must be pointed out to them and they
may be asked to take corrective measures in future. Ultimately, the
entire discretion of grant or refusal of bail has to be left to the judicial
officers and all concerned must ensure that grant or refusal of bail is
considered basically on the facts and circumstances of each case.
122. In our considered view, the Constitution Bench in Sibbia case1
has comprehensively dealt with almost all aspects of the concept of
anticipatory bail under Section 438 CrPC. A number of judgments
have been referred to by the learned counsel for the parties consisting
of Benches of smaller strength where the Courts have observed that
the anticipatory bail should be of limited duration only and
ordinarily on expiry of that duration or standard duration, the
court granting the anticipatory bail should leave it to the regular
court to deal with the matter. This view is clearly contrary to the view
taken by the Constitution Bench in Sibbia case1. In the preceding para,
it is clearly spelt out that no limitation has been envisaged by the
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legislature under Section 438 CrPC. The Constitution Bench has aptly
observed that “we see no valid reason for rewriting Section 438 with
a view, not to expanding the scope and ambit of the discretion
conferred on the High Court or the Court of Session but, for the
purpose of limiting it”.
123. In view of the clear declaration of law laid down by the
Constitution Bench in Sibbia case1, it would not be proper to limit the
life of anticipatory bail. When the Court observed that the
anticipatory bail is for limited duration and thereafter the accused
should apply to the regular court for bail, that means the life of
Section 438 CrPC would come to an end after that limited duration.
This limitation has not been envisaged by the legislature. The
Constitution Bench in Sibbia case1 clearly observed that it is not
necessary to rewrite Section 438 CrPC. Therefore, in view of the clear
declaration of the law by the Constitution Bench, the life of the order
under Section 438 CrPC granting bail cannot be curtailed.
124. The ratio of the judgment of the Constitution Bench in Sibbia
case1 perhaps was not brought to the notice of Their Lordships who
had decided the cases of Salauddin Abdulsamad Shaikh v. State of
Maharashtra3, K.L. Verma v. State4, Adri Dharan Das v. State of W.B.5
and Sunita Devi v. State of Bihar6.
125. In Naresh Kumar Yadav v. Ravindra Kumar28 a two-Judge Bench
of this Court observed: (SCC p. 632d)
“the power exercisable under Section 438 CrPC is somewhat
extraordinary in character and it [should be exercised] only in
exceptional cases.”
This approach is contrary to the legislative intention and the
Constitution Bench's decision in Sibbia case1.
126. We deem it appropriate to reiterate and assert that discretion
vested in the court in all matters should be exercised with care and
circumspection depending upon the facts and circumstances
justifying its exercise. Similarly, the discretion vested with the court
under Section 438 CrPC should also be exercised with caution and
prudence. It is unnecessary to travel beyond it and subject the wide
power and discretion conferred by the legislature to a rigorous code
of self-imposed limitations.
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127. The judgments and orders mentioned in paras 124 and 125 are
clearly contrary to the law declared by the Constitution Bench of this
Court in Sibbia case1. These judgments and orders are also contrary to
the legislative intention. The Court would not be justified in
rewriting Section 438 CrPC.
128. Now we deem it imperative to examine the issue of per incuriam
raised by the learned counsel for the parties. In Young v. Bristol
Aeroplane Co. Ltd.29 the House of Lords observed that “Incuria”
literally means “carelessness”. In practice per incuriam appears to
mean per ignoratium. English courts have developed this principle in
relaxation of the rule of stare decisis. The “quotable in law” is
avoided and ignored if it is rendered in ignoratium of a statute or
other binding authority. The same has been accepted, approved and
adopted by this Court while interpreting Article 141 of the
Constitution which embodies the doctrine of precedents as a matter
of law**.
In Halsbury's Laws of England (4th Edn.) Vol. 26: Judgment and Orders:
Judicial Decisions as Authorities (pp. 297-98, Para 578) per incuriam has
been elucidated as under:
A decision is given per incuriam when the court has acted in
ignorance of a previous decision of its own or of a court of coordinate
jurisdiction which covered the case before it, in which case it must
decide which case to follow (Young v. Bristol Aeroplane Co. Ltd.29, KB
at p. 729 : All ER at p. 300). In Huddersfield Police Authority v.
Watson30, or when it has acted in ignorance of a House of Lords
decision, in which case it must follow that decision; or when the
decision is given in ignorance of the terms of a statute or rule having
statutory force.
129. Lord Goddard, C.J. in Huddersfield Police Authority v. Watson30
observed that where a case or statute had not been brought to the
court's attention and the court gave the decision in ignorance or
forgetfulness of the existence of the case or statute, it would be a
decision rendered per incuriam.
130. This Court in Govt. of A.P. v. B. Satyanarayana Rao31 observed as
under: (SCC p. 264, para 8)
“8. … The rule of per incuriam can be applied where a court omits to
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consider a binding precedent of the same court or the superior court

rendered on the same issue or where a court omits to consider any
statute while deciding that issue.”
131. In a Constitution Bench judgment of this Court in Union of India
v. Raghubir Singh32, Pathak, C.J. observed as under: (SCC p. 766, para
9)
“9. The doctrine of binding precedent has the merit of promoting a
certainty and consistency in judicial decisions, and enables an organic
development of the law, besides providing assurance to the
individual as to the consequence of transactions forming part of his
daily affairs. And, therefore, the need for a clear and consistent
enunciation of legal principle in the decisions of a court.”
132. In Thota Sesharathamma v. Thota Manikyamma33 a two-Judge
Bench of this Court held that the three-Judge Bench decision in Karmi
v. Amru34 was per incuriam and observed as under: (Thota case33,
SCC p. 320, para 10)
“10. … It is a short judgment without adverting to any provisions of
Section 14(1) or 14(2) of the Act. The judgment neither makes any
mention of any argument raised in this regard nor is there any
mention of the earlier decision in Badri Prasad v. Kanso Devi35. The
decision in Karmi34 cannot be considered as an authority on the
ambit and scope of Sections 14(1) and (2) of the Act.”
133. In R. Thiruvirkolam v. Presiding Officer36 a two-Judge Bench of
this Court observed that the question is whether it was bound to
accept the decision rendered in Gujarat Steel Tubes Ltd. v. Mazdoor
Sabha37 which was not in conformity with the decision of a
Constitution Bench in P.H. Kalyani v. Air France38. J.S. Verma, J.
speaking for the Court observed as under: (R. Thiruvirkolam case36,
SCC p. 14, para 11)
“11. With great respect, we must say that the abovequoted
observations in Gujarat Steel37 at p. 215 are not in line with the
decision in Kalyani38 which was binding or with D.C. Roy39 to which
the learned Judge, Krishna Iyer, J. was a party. It also does not match
with the underlying juristic principle discussed in Wade. For these
reasons, we are bound to follow the Constitution Bench decision in
Kalyani38 which is the binding authority on the point.”
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No. Strength

134. In Bharat Petroleum Corpn. Ltd. v. Mumbai Shramik Sangha40 a

Constitution Bench of this Court ruled that a decision of a
Constitution Bench of this Court binds a Bench of two learned Judges
of this Court and that judicial discipline obliges them to follow it,
regardless of their doubts about its correctness.
135. A Constitution Bench of this Court in Central Board of Dawoodi
Bohra Community v. State of Maharashtra41 has observed that: (SCC p.
682, para 12)
“(1) The law laid down by this Court in a decision delivered by a
Bench of larger strength is binding on any subsequent Bench of lesser
or coequal strength.”
136. A three-Judge Bench of this Court in Official Liquidator v.
Dayanand42 again reiterated the clear position of law that by virtue of
Article 141 of the Constitution, the judgment of the Constitution
Bench in State of Karnataka v. Umadevi (3)43 is binding on all courts
including this Court till the same is overruled by a larger Bench. The
ratio of the Constitution Bench has to be followed by Benches of
lesser strength. In SCC para 90, the Court observed as under: (Official
Liquidator case42, SCC p. 57)
“90. We are distressed to note that despite several pronouncements
on the subject, there is substantial increase in the number of cases
involving violation of the basics of judicial discipline. The learned
Single Judges and Benches of the High Courts refuse to follow and
accept the verdict and law laid down by coordinate and even larger
Benches by citing minor difference in the facts as the ground for
doing so. Therefore, it has become necessary to reiterate that
disrespect to the constitutional ethos and breach of discipline have
grave impact on the credibility of judicial institution and encourages
chance litigation. It must be remembered that predictability and
certainty is an important hallmark of judicial jurisprudence
developed in this country in the last six decades and increase in the
frequency of conflicting judgments of the superior judiciary will do
incalculable harm to the system inasmuch as the courts at the grass
roots will not be able to decide as to which of the judgments lay
down the correct law and which one should be followed.”
137. In Subhash Chandra v. Delhi Subordinate Services Selection Board44
Sl. BAIL Bench
No. Strength

this Court again reiterated the settled legal position that Benches of
lesser strength are bound by the judgments of the Constitution Bench
and any Bench of smaller strength taking contrary view is per
incuriam. The Court in SCC para 110 observed as under: (SCC pp.
503-04)
“110. Should we consider S. Pushpa v. Sivachanmugavelu45 to be an
obiter following the said decision is the question which arises herein.
We think we should. The decisions referred to hereinbefore clearly
suggest that we are bound by a Constitution Bench decision. We have
referred to two Constitution Bench decisions, namely, Marri Chandra
Shekhar Rao v. Seth G.S. Medical College46 and E.V. Chinnaiah v. State of
A.P.47 Marri Chandra Shekhar Rao46 had been followed by this Court
in a large number of decisions including the three-Judge Bench
decisions. S. Pushpa45, therefore, could not have ignored either Marri
Chandra Shekhar Rao46 or other decisions following the same only on
the basis of an administrative circular issued or otherwise and more
so when the constitutional scheme as contained in clause (1) of
Articles 341 and 342 of the Constitution of India putting the State and
Union Territory in the same bracket. Following Official Liquidator v.
Dayanand42, therefore, we are of the opinion that the dicta in S.
Pushpa45 is an obiter and does not lay down any binding ratio.”
138. The analysis of English and Indian law clearly leads to the
irresistible conclusion that not only the judgment of a larger strength
is binding on a judgment of smaller strength but the judgment of a
coequal strength is also binding on a Bench of Judges of coequal
strength. In the instant case, judgments mentioned in paras 124 and
125 are by two or three Judges of this Court. These judgments have
clearly ignored the Constitution Bench judgment of this Court in
Sibbia case1 which has comprehensively dealt with all the facets of
anticipatory bail enumerated under Section 438 CrPC. Consequently,
the judgments mentioned in paras 124 and 125 of this judgment are
per incuriam.
139. In case there is no judgment of a Constitution Bench or larger
Bench of binding nature and if the Court doubts the correctness of
the judgments by two or three Judges, then the proper course would
be to request the Hon'ble the Chief Justice to refer the matter to a
Sl. BAIL Bench
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larger Bench of appropriate strength.

Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1

SCC 694

The reverence of life is insegregably associated with the dignity of a

human being who is basically divine, not servile. A human
personality is endowed with potential infinity and it blossoms when
dignity is sustained. The sustenance of such dignity has to be the
superlative concern of every sensitive soul. The essence of dignity
can never be treated as a momentary spark of light or, for that matter,
“a brief candle”, or “a hollow bubble”. The spark of life gets more
resplendent when man is treated with dignity sans humiliation, for
every man is expected to lead an honourable life which is a splendid
gift of “creative intelligence”. When a dent is created in the
reputation, humanism is paralysed. There are some megalomaniac
officers who conceive the perverse notion that they are the “Law”
forgetting that law is the science of what is good and just and, in the
very nature of things, protective of a civilised society. Reverence for
the nobility of a human being has to be the cornerstone of a body
polity that believes in orderly progress. But, some, the incurable ones,
become totally oblivious of the fact that living with dignity has been
enshrined in our constitutional philosophy and it has its ubiquitous
presence, and the majesty and sacrosanctity of dignity cannot be
allowed to be crucified in the name of some kind of police action.
Mehmood Nayyar Azam v. State of Chhattisgarh,(2012) 8 SCC 1