GURBAKSH SINGH SIBBIA ETC . v. STATE OF PUNJAB

Citation: [1980] 3 S.C.R. 383

Court: Supreme Court of India

Bench: Y.V. CHANDRACHUD, P.N. BHAGWATI, N.L. UNTWALIA, R.S. PATHAK, O. CHINNAPPA REDDY

Case summary

This is especially true when the statutory provisions 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 deepgrained in our Criminal Jurisprudence as the...

Judgment text

GURBAKSH: SINGH SIBBIA ETC. • v. STATE OF PUNJAB April 9, 1980 [Y. V. CllANDRACHUD, C. J. , P. N. BHAGWATI, N. L. UNTWALIA, 8 R. S. PATHAK AND 0. CIUNNAPPA REDDY, JJ. ] Bail-Anticipatory Bail-Section 438 of the Code of Criminal Procedure . J Code, 1913 (Act 2 of 1974), Scope of-Judicial balancing of personal lib O'RTS [1980] 3 S. C. R. 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 \Vhich falls for i:e;nsideration is designed to secure a valuable right like the right to personal freedom and involves the application of a presumption as salutary and deepgrained in our Criminal Jurisprudence as the presumption of innocence.

[401 A-CJ The legislature conferred a wide djscretion on the High Court and the Court ot 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 thn. t 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 fi. C' including the conditions which are set out in clauses (i) to (iv) of sub-section (2). The proof of legisla•tive intent can best be found in the language which the legislature use. urt 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 Conrt 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 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 Magistrate1 takingj cognizance ~ such offence decides that a warrant should issue in the first instance against thau person, he shall issue a baiiablel warrant in conformity with the direction of the Conrt under subsection (1) . " The Law Commission, in paragraph 31 of its 48th Report (1972), made the following comments on the aforesaid Clause. II "31. The Bill introduces a provision for the grant of anticipatory bail. This is substantially in accordance with the recommendation made by the previous CQ! llIIlission. 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 c interim order as well as of the final orders will be given to the Supedntendent 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. )) 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 cour~e, 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 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 gi cd . 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 an non-bailable offence and before judgment is delivered, the Court isl of opinion that there are reasonable grounds for believing that the accused is not GURBAKSH SINGH v. PUNJAB (Chandrachud, C. 1. ) 403 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 n1ay direct- · (a) That auy 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 ur which, though not so triable, is punisht~ble 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 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 Section 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 wro'ng to refu5e 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 tn the Code enabling the High Court and the Court of Session to grant anticipatory bail, said in paragraph 29.

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 b" left "to the discretion of the court" and ought not to 6-289 SCl/80 be fettered by the statutory provision itself, since the discretion was being conferred npon 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 evidehtly felt, firstly, that it would be difficult to enumerate the conditions under which anticipatory bail should or should not be 8 granted and secondly, because the intention was to allow the higher courts i'n 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-sedan (2) of Section 438 is a further and clearer manifestation of the same legislative intent to confer a wide discretionary power to gra'nt 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 :egislative 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 impairement of the freedom of the ihdividual 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 no'n-bailable offence. A person who has yet to lose his freedom by being arrested asks for freedom in the event of arrest. That is the stage at which it is imperative to protect his freedom, in so far as one may, and to give full play to the presumption that he is innocent. In fact, the stage at which anticipatory bail is geherally 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 hy it, in the light of which it can grant or refuse relief and while grc:atihg it, modify it by the imposition of all or any of the conditio'ns mentioned in Section 437. 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 sectio'n says that the Court "may, if it thinks fit" issue the necessary direction for bail, sub-section (2) confers on the Court the GURBAKSH SJNGH v. PUNJAB (Chandrachud, C. J. ) 405 power to include such condi'. ions in the direction as it may think fit in the light of the facts of the particular case, including the conditions ) mcntionoed in clauses (i) to (iv) of that sub-section. The controversy therefore is not whether 'he 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 amp1itude of judicial discretion which is given to the High Court and the Court of Session, to impose such conditions as they may thi'nk 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 0 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 tli. -. c':'. lcp and on such conditions as th·~ case rnav warrant.

Similarly, they must be left free to refuse bail if the circumstances of the case so warran', on consideratio'ns similar to those mentioned in s~c tion 437 or which are generally considered to be relevant under Section 439 of the Code. Generalisations on matters which rest on discretion and the attempt to discover formulae of universal application whe'n facts are bound to differ from case to case frustrate the very purpose of conferring discretion. No two cases are alike on facts and therefore, Courts have to be allowed a little free play in the joints if the con• ferment 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 r'visional scrutiny and above all b'cause, discretion has always to be exercised by conrts judicially and not accordiM 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 possibillities· 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. Whi1e dealing with the necessity for preserving judicial discretion unhampered by rules of general application, Earl Loreburn L. C. said in Hyman and Anr. v.

Rose(') : "T desire in the first instance to point out that the discretion given by the section is very wide ........ Now it (! ) [19121 A. c. 623. ,A seems to me that when the Act is so express 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 trnc 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 tha:t the Court must and will always insist upon certain things whe'n the Act does not require them, and the facts of some unforseen case may make the Cour: wish it had kept a free hand. " 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, we cut down the discretion so wisely conferred upon the Courts, by devising a formula which will confine th•e 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 th;, context of emerging concerns as and when it arises. Therefore, even if we were to frame a 'Code for the garnt of anticipatory bail', which really is the business of the legislature, it can at best furnish broad guide-lines and cannot l compel blind adherence. In which case to grant bail and in which to refuse it is, rn 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 thmks 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.

A close look at some of the rules in the eight-point code formulated by he 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. " 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 reject ing bail, even if the applicant's conduct is painted in colours too lurid to be true? The ·~ighth proposition rule framed by the High Court says : "Mere general allegations of ma/a {ides in the petition are inadequate.

The court must be satisfied on materials before it that the allegations of ma/a fide are substantial and the accusation appears to be false and groundless. " Does fais rule mean, and that is the argument of the learned Additional Solicitor-General, that the anticipatory bail cannot be granted unless it is alleged (and naturally, also shown, because mere aliegation 's ne. vcr enough) that the proposed accusations are mala fide ? It is understandable that if mala {ides are shown anticipatory bail should be granted in the generality of cases. But it i« 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 involwd 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. 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 impriionment for life uuless, the court at the stage of granting anticipatory bail, is satisfied that such 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 uon-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 nonbailable 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 lhe e)fception 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 nonbailable offence, is arrested or detained without warrant or appears or is brought before a court.

Section 438 applies before the arrest is made and, in fact, one pf 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 i)e 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 pf the belief spo'ken 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) 5hall 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 fits 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 tht1 High Court or the Court of Session, is conspicuously absent in Section 437(1). We see no valid reason for re-writing Section 438 with a view, not to expanding the scope and ambit of the discretion conferred f 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 ancipatory bail cannot be granted in respect of offences like criminal breach of trust for the mere reason that the punishment provided therefor is imprisc;mment for life.

Circumstances may broadly justify the grant of baH in such cases too, though of course, the Court is free to refuse anticipatory bail in any case if there is material before it . iustifying such refusal. A great deal has been said by the High Court on the fifth proposition fn,rned 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. Accordmg 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 Judic;ary and the police are in a sense complementary and no~ overlapping. And, as. observed by the Privy Council in King Emperor v.

Khwaia Nasir Alzmed : ('} "Just as it is essential that every one accused of a crime should have free access ID a court of justice so that he may be duly acquitted if found not guilty of the offence with which he is chareed, 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 'he 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 it& 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 561A, 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 (1) 71 Indian Appeals 203. inevitable result that all iuvestigation into the accusation comes to halt Therefore, it was held that the Court cannot, in the exercise of its inherent powers, virtually direct that the police shall not inevstigate into the charges contained in the F . LR. We are concerned here with a situation of an altogether different kind. An order of anticipatory bail does not in a_ny way, directly or indirectly, take away from the police their right to inestigate into charges made or to be _!! IJlde against the person released on bail. In fact, two of the usual conditions incorporated in a direction issued under Section 438 (1) are those recommended in Sub-section (2) (i) and (ii) which require the applicant to co-operate with the police and to assure that he shall not tamper with the witnesses during a:nd 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 a:rises, 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 ~upplied by a person released on bail by invoking the principle stated by this Court in State of U. P. v.

Deoma11 Upadhyaya(') 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 bea:ring on the charge which may be made against him, he niay appropriately be deemed to 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 a:nticipatory 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.

It is unnecessary to consider the third propos1t1on 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 arise or can be (1) [1961]· I S. C. R. 14 at page 26. read into that seqtion. The planitude of the section must be given its full play. 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 f 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. llut 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 somethiqg volatile or incendiary, which needs to be handled with th_e greatest care and caution im&ginable. A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every ' since the right to personal freedom cannot be made ta depend on com- 414 SUPREME COURT REPOllTS (1980] 3 S. C. R.

pliance with unreasonable restrictions. The beneficient provision contained in Section 438 must be saved, not jettisoned. No doubt can linger after the decision in Maneka Gandhi(') thaG in order to mcef 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 i~ is conceived by the 8 legislature, is open to no exception on: thei ground that it prescribes; a procedure which is unjust or unfair. We, ought, at all costs, to avoid thrcwmg it open to a Constitutional challenge by reading words in il which are not be found therein. It is not necessary to refer to decisions which deal with the right to ordinary bail bec_ause 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 Emperor(') that the object of bail is to secure the attendance ot 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 doserve a special mention. In K. N. Jog/ekar v. Emperor(') 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 iu the preceding Section 497 which correspond~ 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> o~ the discretion conferred by Section 498 aud that the qnly principle which was established was that the discretion should be exercised judiciously. In Emperor v. If. L. Hutchinson(') it was, said that it was very unwise to make an attemp~ to lay down any particular rules· which will bind the High Court, having regard to the fact tllat the legis- • lature 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 sa! fely 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 iu other classes. It was observed that the principle to be deduced from the various sectionsi in the Criminal Procedure (I) (1978] I S. C. C. 248. (2) A. LR. 1924 Cal. 476, 479, 480 (3) A. LR. 1931 All. 504•. (4) A. LR. 1931 All. 356, 358.

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 to look after his own case. presumably innocent person must have his freedom to enable him to establish his innocence. Coming nearer home, it was observed by Krishna Iyer, J. , in Gudikanti Narasimhulu v. Public Prosecutor, High Court of AIUlhra Pradesh(') that "the issue of bail is one of liberty, justice, public safety ' and burden of the public treasury, all of which insist that a developed f jurisprudence of bail is integral to a socially sensitized judicial process. After all, personal liberty of an accused or convict is fundamental, sufforing lawful eclipse only in terms of procedure established by ~aw. The last four words of Article 21 are the life of that human right.

" In Gurcharan Singh v. State (Delhi Adm11. ) (') it wns observed by Goswami, J. who spoke for the Court, that "there cannot be an inexo- (} rable forn:mla 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. " In American Jurisprudence (2d, Volume 8, page 806, para 39) it is stated : ''Where the granting of bail lies within the discretion of the c"urt, 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. " l It is thus clear that the question whether to grant bail or not depends for its answer npon 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. 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 hail in the event of his arrest would generally be made. On the other (I) [1978] 1 s. c. c. 240. (2) [1978] 1 s. c. c. 118. hand, if it appears likely, considering the antecedents of the applicant, that taking advantage of the order of anticipatory bail he will flee from jnstice, 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 {ides; and, equally, that anticip_atory bail must be granted if there is no fear that the applicant will abscond. There are several other considerations, too numerous to enmnerate, the combined effect of which must weigh with the court while granting or rejecting anticipatory bail. The nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the applicant's presence not being secured at the trial, a reasonable apprehension that witnesses will be tampered with and "the larger interests of the public or the state" are some of the considerations which the court has to keep in mind while deciding an application for anticipatory bail. The relevance of these considerations was pointed out in The State v.

Captain Jagjit Singh,(') which, though, was a case under the old Section 498 which corresponds to the present Section 439 of the Code. W 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. A word of caution may perhaps be necessary in the evaluation ot the consideration whether the applicant is likely to abscond.

There can be no presumption that the wealthy and the mighty will submit themr selves 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 td 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 Gudikanti), Lord Russel of Killowen said : ". . . . . ... 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. Tt w"s 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 fro'm justice. " (ll [1962] 3 S. C. R. 622. GURBAKSH SINGH v. PUN. TAB (Chaqdrachud, C. l.

) 417 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. 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 jnstice will be better served by trusting these courts to act objectively f and in consonance with principles governing the grant of bail which are recognised over the years, than by divesting them of their discret on which the legislature has conferred upon them, by laying down inflexible rules of general appfication.

It is customary, almost chronic, to take a 0 statute as one finds it on the grounds that. after all "the leg;sJa•11r 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. This should be the end of the matter, bnt it is necessary to clarify ii few points which have given rise to certain misgivings. Section 438(1) of the Code lays down a condition which has to be satisfied before anticipatory bail can be granted. The applicant mus~ 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" I! ' shows that the belief that the applicant may be so arrested must h1:1 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 oossible arrest. Otherwise, the number of ann:ications for a'ntic;natNv bail will be as large as, at any rate, the adult populace. Anticipatory bail is a deYice to secure the individual's liberty; it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusatiqns, likely or unlikely.

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 objec~ of Section 438. Thirdly, the filing of a First Information Report is not a· condition precedent to the exercise of the power under Section 438. The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an F. I. R. is not yet filed. Fourthly, anticipatory bail can be granted even after an F. I. R. is filed, so long as the applicant bas not been. arrested. ,•,. Fifthly, the provisions of Section 43 8 cannot be invoked after the arrest of the accused.

The grant of "anticipatory bail" to an accused who is under arrest involves a contradiction in terms, in so far a~ the offence dr 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. We have said that there is one proposition formulated by the High Court with which we are inclined to agree. That is preposition No. (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 drctw up his application with the meticulousness of a pleading in a civil case and such is not requirement of the section. But specific event~ and fact& GURDAKSH SINGH v. PUNJAB (Chandrachud, C. J.

); 419 11)-Ust 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 oon of the exercise of power conferred by the section. ) ' 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. I~ 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 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 11pplicant and when, an order of bail which comprehends allegedly unlawfnl 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 lawlessn£SS and a weapon to stifle prompt investigtltion into offences which could not possibly be predicated when the order was passed. Therefore, the court which grants anticipatory bail niust 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. / 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 pilssed under 1bat 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. 1 '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 F. I. R. in respect of the matter • covered by the order. The applicant may in such cases be direct~ ! ° obtain an order of bail under Section 437 or 439 of the Code within a reasonably short period after the filing of the F. I. R. as aforesaid. But this need not be followed as an invariable rule. The normal rule should be ii,ot to limit the operation of the order in relation to a period of time.

7-289 ,SCI/80 · During the last couple of years this Court, while dealing with appeals against orders J:1115sed 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 the police for a brief period if a discovery is to be made under Sectioa 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 F. I. R. in respect of matters covered by the order. These . orders, on the whole, have worked satisfatorily, causing the least inconvenience to the individuals concerned and least interference with the investigational ri1#s 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. The various appeals and Special Leave petitions before us will stand disposed of in terms of this Judgment. The judgment of the Full Bench of the Punjab and Haryruia High Court, which was treated as the main case under appeal, is substantially set aside as indicated during the course of this Judgment. S. R. Appeals allowed in part. •