Aapka Consultant Judgment Series- In this series, we are providing case analysis of Landmark Judgments of Hon’ble Supreme Court of India.
Shri Gurbaksh Singh Sibbia & Ors. v. State of Punjab
AIR 1980 SC 1632: (1980) 2 SCC 565
JUDGES: Y.V. Chandrachud, O. Chinnappa Reddy, P.N. Bhagwati, R.S. Pathak and N.L. Untwalia
Date of Decision: 09-04-1980
FACTS:-
The appellant was a Minister of Irrigation and Power in the Congress Ministry of Government of Punjab. Serious allegation of political corruption were levelled against him, in pursuance to which, applications were filed in the High court under Section 438 of the Code of Criminal Procedure, 1973, praying that the appellants be released on bail in the event of their arrest on the aforesaid charges. Considering the seriousness of the matter, the Ld. Single Judge referred the application to the full bench which was accordingly dismissed. Hence the present matter falls before the Supreme Court.
ISSUE:-
What were the conditions to be satisfied before granting an anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973 and what were the powers and scope of the High Courts and the Court of Sessions in granting such bail?
JUDGMENT:-
The Hon’ble Supreme Court has stated that the expression ‘anticipatory bail’ means that a person can apply for a bail in anticipation of his or her arrest. The anticipatory bail is somewhat different from an ordinary order of bail as the former is granted in anticipation of arrest whereas the latter one is granted after the arrest of a person. The act of arrest affects the freedom of movement of a person whereas the order of bail gives back to the person, the right to freedom of movement on a condition that he will make sure his presence during the trial. Generally speaking, an order of anticipatory bail acts as an insurance against the police custody following upon arrest for offence or offences in respect of which the order is issued.
There are several conditions which the courts must take into consideration while granting or rejecting the application for an anticipatory bail, namely, the nature and seriousness of the offence committed, a reasonable possibility of applicant’s presence not being secured at the trial, a reasonable apprehension that the witnesses might be tampered with and in the larger interest of public and the state.
In the light of the judgment delivered by the full bench of the Punjab and Haryana High Court, the Supreme Court has made certain amendments to the propositions laid down by the full bench of the High court and observed certain conditions which were enumerated under Section 438(1) of the Code of Criminal Procedure, 1973, which has to be satisfied before an anticipatory bail can be granted: –
- Though the power conferred under sec. 438 of the code can be described as of an extra-ordinary character, but that does not justify the conclusion that the power, being of an extra-ordinary character, must be exercised in exceptional cases only. The discretionary power must be exercised with due care and circumspection depending on the circumstances justifying the exercise.
- 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 arrested must be founded on reasonable grounds. Mere ‘fear’ is not ‘belief’ for which reason it is not enough for the applicant to show that he has some sort of vague apprehension that someone is going to make an accusation against him, in pursuance of which he may be arrested.
- If an application for the grant of anticipatory bail comes before the High Court or the Court of Sessions, it may apply his own mind to dispose of the same. It cannot leave the question for the decision of the Magistrate under sec. 437 of the code as and when requires. It would defeat the very object of sec. 438 of the code.
- Filing of an FIR is not a condition precedent to exercise the powers under sec. 438 of the code. The proximity of a likely arrest founded on a reasonable ground can be shown to invoke the particular section.
- Applicant can file an application for the grant of anticipatory bail even after an FIR has been filed against him, so long as he has not been arrested.
- The provisions of sec. 438 of the code cannot be invoked after the arrest of the applicant. Then, he has to seek remedy under sec. 437 or 439 of the code, if he wants to be released on bail in respect of the offence or offences for which he has been arrested.
- An interim bail order can be passed under sec. 438 of the code without giving notice to the Public Prosecutor but the notices should be given to the Public Prosecutor when the final order is to be passed regarding the anticipatory bail.
- Though, it is not necessary that order of bail under sec. 438 of the code be limited for a short period of time, but if the court thinks fir, it can limit the operation to a short period until after filing the FIR and the applicant has to apply for a regular bail under sec. 437 or 439 of the code after filing of the FIR.
- No blanket order of bail can be generally passed and the courts which granting the anticipatory bail must take care of the offence or offences in respect of which the order of anticipatory bail will be held effective
Further the court has observed that the use of the words “may, if it thinks fit” under Section 438 by the legislature has left with the High courts and the Court of Sessions a wide discretionary powers in granting the anticipatory bail and the same ought not to be fettered by the statutory provisions itself, since the powers were conferred upon the superior courts which were expected to exercise it judiciously. This was done for two prime reasons, i.e., it would be difficult to enumerate certain conditions under which anticipatory bail should or should not be granted and the intention was to allow the superior courts a free hand in granting a relief by allowing the application of anticipatory bail. It is neither a passport to commit crime nor shield against any kinds of accusation. Also, the society has a vital stake in these two interests, namely, the personal liberty and the investigational powers of the police. Therefore, the courts have to strike a balance between these two interests while determining the scope of Section 438 of the code.
HELD:-
The Court has substantially set aside the judgment of the full bench of Punjab & Haryana High Court and disposed of the appeal. The Court held that the discretionary powers of the court under Section 438 of the code should be used sparingly, with due care and circumspection and the application for the grant of anticipatory bail should be accepted after satisfying the conditions mentioned under Section 438 of the code.
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