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section 438 Crpc

 Gurbaksh Singh Sibbia 

v 

State of Punjab AIR 1980

By Mariya

The present case deals with Anticipatory bail which is not defined anywhere in any of the Indian legislations. But Section-438 of The Code of Criminal Procedure,1973(Cr.P. C.) provides for bail in anticipation of arrest. It is true that there is no question for bail when there is no arrest, ‘Anticipatory bail’ is a misnomer as it is a bail granted in anticipation of arrest.

There are three types of bail given under CRPC i.e. Ordinary Bail, Default bail, and Anticipatory bail. The former is granted after the arrest is made whereas the latter is granted in anticipation of arrest.


Analysis of the case

Appellant: Minister of Irrigation and power under the Congress regime.

Respondent: State


BENCH: Chief Justice Y.V.Chandrachud, P.N. Bhagwati, Untwalia, N.L.Pathak, R.S. Reddy, O. Chinappa (J) 5 Judges bench.

Facts of the case:

The Appellant was a Minister of Irrigation and Power and has been accused of Corruption and undue use of power. The Appellant along with a few others apprehends arrest.

The appellant Gurbaksh Singh Sibbia applied for anticipatory bail in anticipation of his arrest in the Court of Punjab and Haryana High Court, the said court dismissed the application and therefore,a Special leave petition was filed in the Apex court.

Contentions made by the Appellant :

  1. The power conferred by section 438 to grant anticipatory bail is "not limited to the contingencies" summarised by the High Court.

  2. 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.

  3. Section 438 is a procedural provision which is concerned with the personal liberty of an individual who has not been convicted of the offence in respect of which he seeks bail and who must be presumed to be innocent. The validity of that section must accordingly be examined by the test of fairness and which is implicit in Article 21.

  4. The Court allowed appeals in part and held: 

  1. Society has a vital stake in both of these interests namely, personal liberty and the investigational power of the police, though their relative importance at any given time depends upon the complexion and restraints of political conditions. The Court’s task is how best to balance these interests while determining the scope of section 438 of the Code of Criminal Procedure, 1973. 

  2. The High Court and the Court of Session should be left to exercise their jurisdiction under section 438 by a wise and careful use of their discretion under section 385 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. 

  3.  Section 438(1) of the Code lays down a condition which has to be satisfied before anticipatory bail can be granted. The applicant must show that he has "reason to believe" that he may be arrested for a non-bailable offence. The use of the expression "reason to believe" shows that the belief that the applicant may be so arrested must be founded on reasonable grounds. Mere ’fear’ is not ’belief’, for which reason it is not enough for the applicant to show that he has some sort of a vague apprehension that someone 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 nonbailable 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. 

  4. 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.  

  5. Anticipatory bail can be granted even after an F.I.R. is filed, so long as the applicant has not been arrested. [418 C] Fifthly, the provisions of Section 438 cannot be invoked after the arrest of the accused. The grant of "anticipatory bail" to an accused who is under arrest involves a contradiction in terms, in so far as the offence or offences for which he is arrested, are concerned. After arrest, the accused must seek his remedy under Section 437 or Section 439 of the Code, if he wants to be released on bail in respect of the offence or offences for which he is arrested.

  6. However, a "blanket order" of anticipatory bail should not generally be passed. This flows from the very language of the section which requires the appellant to show that he has "reason to believe" that he may be arrested. A belief can be said to be founded on reasonable grounds only if there is something tangible to go by on the basis of which it can be said that the applicant’s apprehension that he may be arrested is genuine. That is why, normally, a direction should not issue under Section 438(1) to the effect that the applicant shall be released on bail "whenever arrested for 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 bad. The rationale of a direction under Section 438(1) is the belief of the applicant founded on reasonable grounds that he may be arrested for a non-bailable offence.

  7.  However, a "blanket order" of anticipatory bail should not generally be passed. This flows from the very language of the section which requires the appellant to show that he has "reason to believe" that he may be arrested. A belief can be said to be founded on reasonable grounds only if there is something tangible to go by on the basis of which it can be said that the applicant’s apprehension that he may be arrested is genuine. That is why, normally, a direction should not issue under Section 438(1) to the effect that the applicant shall be released on bail "whenever arrested for 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 bad. The rationale of a direction under Section 438(1) is the belief of the applicant founded on reasonable grounds that he may be arrested for a non-bailable offence.


Conclusion

The five judges bench of the Apex Court was of the opinion that the High Court should be left free with discretionary powers. The bench added that 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 the police for a brief period if a discovery is to be made under Section 27 of the Evidence Act or 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 satisfactorily, causing the least inconvenience to the individuals concerned and the 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. The va

According to Justice Chandrachud, society has a vital interest in the right to personal liberty and the investigational power of the police even though relatively their importance depends upon the political conditions of the state at any given point in time. He highlighted that it was the court’s task to figure out how to strike a balance between the two and determine the scope of Section 438 under the Code of Criminal Procedure, 1973.

 

 
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