Aapka Consultant Judgment Series- In this series, we are providing case analysis of Landmark Judgments of Hon’ble Supreme Court of India.
Siddharam Satlingappa Mhetre v. State of Maharashtra and Others
(2011) 1 SCC 694
JUDGES: Dalveer Bhandari and K.S. Panicker Radhakrishnan
Date of Decision: 2/12/2010
FACTS:-
The petitioner, who belongs to the Indian National Congress party, was the alleged accused in this case. The case as disclosed in the First Information Report was that Sidramappa Patil was contesting election of the State assembly on behalf of the Bhartiya Janata Party. In the FIR, it is incorporated that Baburao Patil, Prakash Patil, Mahadev Patil, Mallikarjun Patil, Apparao Patil, Yeshwant Patil were supporters of the Congress and so also the supporters of the Appellant Siddharam Mhetre and opposed to the BJP candidate.
On 26.9.2009, around 6.00 p.m. in the evening, Sidramappa Patil of BJP came to the village to meet his party workers. Sidramappa Patil and party workers thereafter went to worship. After worshipping the Goddess when they came out to the assembly hall of the temple, the political opponents belonging to the group of petitioner suddenly came rushing in their direction. They asked them to go away and shouted Mhetre Saheb Ki Jai. Baburao Patil and Prakash Patil from the aforementioned group of petitioner fired from their pistols in order to kill Sidramappa Patil and the other workers of the BJP. Bhima Shankar Kore was hit by the bullet on his head and died on the spot. 5 BJP party workers were also assaulted. It is further mentioned in the FIR that about eight days ago, the petitioner Siddharam Mhetre and his brother Shankar Mhetre had gone to the village and talked to the abovementioned party workers and told them that, “if anybody says anything to you, then you tell me. I will send my men within five minutes. You beat anybody. Do whatever.” The petitioner applied to the High Court for the grant of anticipatory bail which was denied to him by the High Court. Hence petitioner filed this Special Leave Petition in the Supreme Court.
ISSUE:-
Whether the powers under section 438 Cr.P.C. are subject to limitation of section 437 Cr.PC?
JUDGMENT:-
Hon’ble Court discussed the provision of anticipatory bail in many dimensions. It noted that, it is a matter of common knowledge that a large number of undertrials are languishing in jail for a long time even for allegedly committing very minor offences. This is because section 438 Cr.P.C. has not been allowed its full play. It relied on the decision of the Hon’ble Supreme Court Constitution Bench in Gurbaksh Singh Sibbia and Ors. v. State of Punjab [(1980) 2 SCC565] where the scope and ambit of the concept of anticipatory bail was dealt in a comprehensive manner. The scope of judicial discretion in the matter of anticipatory bail and its importance was emphasized by the bench. It was said that legislature can only frame broad guidelines on anticipatory bail and the court has to apply it according to the circumstance of the case. It was clearly mentioned that section 438 Cr.P.C. is extraordinary because it was incorporated in the Code of Criminal Procedure, 1973 and before that other provisions for grant of bail were sections 437 and 439 Cr.P.C. It is not extraordinary in the sense that it should be invoked only in exceptional or rare cases. Some courts of smaller strength have erroneously observed that section 438 Cr.P.C. should be invoked only in exceptional or rare cases. Those orders are contrary to the law laid down by the judgment of the Constitution Bench in Sibbia’s case.
The question which arises for consideration is whether the powers under section 438 Cr.P.C. are unguided or uncanalised or are subject to all the limitations of section 437 Cr.P.C.? The Constitution Bench in Sibbia’s case has clearly observed that there is no justification for reading into section 438 Cr.P.C. and the limitations mentioned in section 437 Cr.P.C. The Court further observed that the plentitude of the section must be given its full play. The Constitution Bench has also observed that the High Court is not right in observing that the accused must make out a “special case” for the exercise of the power to grant anticipatory bail. This virtually, reduces the salutary power conferred by section 438 Cr.P.C. to a dead letter. The Court observed that “We do not see why the provisions of Section 438 Cr.P.C. should be suspected as containing something volatile or incendiary, which needs to be handled with the greatest care and caution imaginable.”
The proper course of action ought to be that after evaluating the averments and accusation available on the record if the court is inclined to grant anticipatory bail then an interim bail be granted and notice be issued to the public prosecutor. After hearing the public prosecutor the court may either reject the bail application or confirm the initial order of granting bail. The court would certainly be entitled to impose conditions for the grant of bail. The public prosecutor or complainant would be at liberty to move the same court for cancellation or modifying the conditions of bail any time if liberty granted by the court is misused. The bail granted by the court should ordinarily be continued till the trial of the case.
GRANT OF BAIL FOR LIMITED PERIOD IS CONTRARY TO THE LEGISLATIVE INTENTION AND LAW DECLARED BY THE CONSTITUTION BENCH:
The restriction on the provision of anticipatory bail under section 438 Cr.P.C. limits the personal liberty of the accused granted under Article 21 of the constitution. The added observation is nowhere found in the enactment and bringing in restrictions which are not found in the enactment is again an unreasonable restriction. It would not stand the test of fairness and reasonableness which is implicit in Article 21 of the Constitution after the decision in Maneka Gandhi v. Union of India and Another [(1978) 1 SCC 248] case. 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.
It is a settled legal position crystallized by the Constitution Bench of this court in Sibbia’s case that the courts should not impose restrictions on the ambit and scope of section 438 Cr.P.C. which are not envisaged by the Legislature. The court cannot rewrite the provision of the statute in the garb of interpreting it.
This Court in the Sibbia’s case laid down the following principles with regard to anticipatory bail:
- Section 438(1) is to be interpreted in light of Article 21 of the Constitution of India.
- Filing of FIR is not a condition precedent to exercise of power under section 438.
- Order under section 438 would not affect the right of police to conduct investigation.
- Conditions mentioned in section 437 cannot be read into section 438.
- Although the power to release on anticipatory bail can be described as of an “extraordinary” character this would “not justify the conclusion that the power must be exercised in exceptional cases only.” Powers are discretionary to be exercised in light of the circumstances of each case.
- Initial order can be passed without notice to the Public Prosecutor. Thereafter, notice must be issued forthwith and question ought to be reexamined after hearing. Such ad interim order must conform to requirements of the section and suitable conditions should be imposed on the applicant.
Finally, Hon’ble Court ruled that, the following factors and parameters can be taken into consideration while dealing with the anticipatory bail:
- The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
- 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;
- The possibility of the applicant to flee from justice;
- The possibility of the accused’s likelihood to repeat similar or the other offences.
- Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.
- Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.
- The courts must evaluate the entire available material against the accused very carefully.
- The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;
- 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;
- The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
- 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.
HELD:-
In the preceding paragraphs, it is clearly spelt out that no limitation has been envisaged by the Legislature under section 438 Cr.P.C. The Constitution Bench has aptly observed that “we see no valid reason for rewriting section 438 with a view, not to expanding the scope and ambit of the discretion conferred on the High Court or the Court of Session but, for the purpose of limiting it”.
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