Supreme Court of India
RAVINDRA SAXENAversusSTATE OF RAJASTHAN
- Citation
- 2009 INSC 1304
- Decided
- 15 December 2009
- Disposal
- Appeal(s) allowed
- Bench
- TARUN CHATTERJEE
Holding
Anticipatory bail can be granted at any time before arrest and the High Court must consider the facts on its own; it cannot refuse bail merely because a challan has been presented or because the alleged offences are serious.
Summary
The appellant, a property dealer, was charged in FIR No.107/2007 for cheating, forgery and criminal conspiracy arising from a dispute over the sale of flats. He repeatedly applied for anticipatory bail, but the Rajasthan High Court rejected each application on the ground that a challan had been presented. The Supreme Court held that under Section 438 of the CrPC, anticipatory bail may be granted at any time before arrest and the High Court must apply its own mind to the facts, not refuse bail merely because a challan is filed or because the alleged offences are serious. Citing the principles laid down in Gurbaksh Singh Sibbia v. State of Punjab, the Court emphasized the protective purpose of Section 438 and the need to avoid undue deprivation of liberty. Consequently, the Supreme Court set aside the High Court’s order, granted anticipatory bail to the appellant, and directed that he be released on bail if arrested, subject to the investigating officer’s satisfaction.
Issues considered
- Whether the High Court erred in rejecting anticipatory bail solely on the ground that a challan had been presented.
- Whether Section 438 CrPC permits denial of anticipatory bail for offences such as cheating and forgery.
- Whether the High Court must apply its own mind to the facts and circumstances before refusing anticipatory bail.
Legislation cited
- Code of Criminal Procedure, 1973s. 437, s. 438
- Indian Penal Code, 1860s. 120-B, s. 380, s. 420, s. 448, s. 456, s. 457, s. 467, s. 468, s. 471
Subjects
anticipatory bailSection 438 CrPCpersonal libertycheatingcivil disputebail jurisprudenceHigh Court discretion
Judgment
[2009] 16 (ADDL.) S.C.R. 433
RAVINDRA SAXENA A
v.
STATE OF RAJASTHAN
(Criminal Appeal No. 2406 of 2009)
DECEMBER 15, 2009
B
[TARUN CHATIERJEE AND SURINDER SINGH
NIJJAR, JJ.]
)
Code of Criminal Procedure, 1973:
c
s. 438 - Anticipatory bail - Dispute between property
dealer and buyer regarding sale of flats - Criminal complaint
against property dealer and his family members for offences
punishable ulss. 420 and 120-B /PC - Suit for specific
performance also filed by complainant - Third application for D
anticipatory bail rejected by High Court observing that
>
"cha/Ian has now been presented" - HELD: It has been clearly
held by Supreme Court* that anticipatory bail can be granted
at any time so long as the applicant has not been arrested -
When the application is made to High Court or Court of
E
Session, it must apply its own mind on the question and
decide when the case is made out for granting such relief -
High Court ought not to have left the matter to Magistrate only
on the ground that "cha/Ian has now been presented" - There
,>. • is also no reason to deny anticipatory bail merely because
the a/legation in the case pertains to cheating or forgery of a F
valuable security - The merits of the issues shall have to be
assessed at the time of trial and denial of anticipatory bail only
on the ground that cha/Ian has been presented would not
satisfy the requirements of ss.437 and 438 - High Court
committed a serious error of law in not applying its mind to G
the facts and circumstances of the case - High Court is
I required to exercise its discretion upon examination of the
"" facts and circumstances and to grant anticipatory bail "if it
433 H
434 SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.
A thinks fit" - Salutary provision contained in s.438 was
introduced to enable the court to prevent deprivation of
personal liberty - It cannot be permitted to be jettisoned on
technicalities such as "the cha/Ian having been presented,
anticipatory bail cannot be granted" - High Court erred in not
B considering the application for anticipatory bail in accordance
with law - Defence put forward by the appellant cannot be
obliterated at this stage itself - The plea of the appellant that
dispute is purely of a civil nature cannot be brushed aside at
this stage - Therefore, anticipatory bail is granted to the
c appellant in the case pending on the basis of FIR No. 1071
2007 - It is directed that in the event of arrest, the appellant
shall be released on bail to the satisfaction of the Investigating
Officer -·Appellant shall join investigation as and when
required.
D Words and Phrases:
Expression "if it thinks fit" as occurring in s. 138(1)CrPC •
- Connotation of.
*Gurbaksh Singh Sibbia and Ors. Vs. State of Punjab
E
(1980) 2 sec 565, relied on.
Case Law Reference:
(1980) 2 sec 565 relied on para 8
F CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal •
No. 2406 of 2009.
From the Judgment & Order dated 30.1.2009 of the High
Court of Judicature at Rajasthan, Jaipur Bench, Jaipur in S.B.
G Criminal Misc. 3rd Bail Application No. 794 of 2009.
Sushil Kumar Jain (for Pratibha Jain) for the Appellant.
• ~
Sonia Mathur, Pankaj Prasad, R. Gopalakrishnan for the
Respondent.
H
RAVINDRA SAXENA v. STATE OF RAJASTHAN 435
+ The following Order of the Court was delivered A
ORDER
SURINDER SINGH NIJJAR, J. 1. Leave granted.
2. The application filed by the appellant seeking B
anticipatory bail has been rejected for the third time by the High
Court of Rajasthan, Jaipur Bench. On the basis of the complaint
made by one Karan/Karani Singh an FIR has been registered
against the appellant i.e. FIR No.107/2007 dated 3.5.2007
Jaipur City, Police Station Vidhyadhar Nagar under Section
c
420, 467, 468, 120-B IPC. It is alleged that the complainant
agreed to purchase the flats being Flat Nos.101 and 101A from
the appellant and his father the necessary consideration was
received by the accused Nos. 1 and 2. The same flats were D
subsequently sold to somebody else. It is, therefore, alleged
"' l that the appellant has committed offences under Section 420,
467, 468, 120-B IPC. Amar Nath Saxena (father of the
Appellant); the Appellant i.e., Ravindra Saxena; Shrimati
Sharada Devi and Pradeep Maheshwari and accused E
numbers 1 to 4 in the FIR. According to the appellant the
investigation in the FIR was taken over by Samunder Singh, ASI,
who happened to be a close relative of the complainant.
_,. . Therefore, the criminal process is being abused at the instance
of the investigating officer. F
3. At the time of the hearing of the matter the learned
counsel for the appellant pointed out that the father of the
complainant is a retired police officer. The complainant is a
.
property dealer. The parties are well known to each other. They
have commercial transactions with each other. In fact, the
. G
criminal complaint has been filed in order to pressurise the
' • appellant for not to pursue the civil litigation pending between
the parties. The complainant has already filed a suit for specific
H
436 SUPREME COURT REPORTS (2009] 16 (ADDL.) S.C.R,
A performance on 07.5.2007 on the same cause of action. Since,
the appellant was being pressurized to compromise in the civil
litigation he filed an application for anticipatory bail. He also
filed the complaint in the Bar Council of Rajasthan against some
Advocates who had been compelling the appellant. Even then
B Session Judge rejected his application for anticipatory bail on
13.07.2007.
4. Thereafter, on the basis of a complaint made by
Amarnath Saxena, FIR being No.207/2007 dated 2.08.2007
c has been registered against the Kami Singh and others at
Police Station Sadar, Jaipur, under Section 448, 456, 457, 420,
467, 468, 471, 380, 120-B IPC.
5. Being unsuccessful before the Sessions Judge, the
D appellant moved an application for anticipatory bail before the
High Court in the earlier case, which was dismissed by the High
Court, as well on 13.08.2007. The appellant also sought
quashing of the FIR in a petition filed under Section 482 Cr.P.C.
before the High Court of Rajasthan. This was also rejected by
E the High Court. The appellant again moved application for
anticipatory bail which was rejected by the High Court on
24.03.2008. Therefore, the appellant approached this Court by
way of petition for special leave to appeal, which was disposed
of on 12.2.2009 with the following order:
F ••
"This special leave petition is filed against an order
of the High Court dismissing the second bail application
of the petitioner under Section 438. Cr.P.C.
G On the prayer of Mr. S.K. Jain, learned counsel
appearing for the petitioner, the special leave petition is
dismissed as withdrawn with liberty to the petitioner to
'
apply for third bail application before the High Court. If such
an application for bail is moved the concerned Court s_hall
H decide it on the same day."
RAVINDRA SAXENA v. STATE OF RAJASTHAN 437
[SURINDER SINGH NIJJAR, J.]
6. In view of the above, the appellant moved the third A
application for anticipatory bail. This has again been dismissed
by the High Court with the following observations:
"In the facts and circumstances, therefore, the case
of the petitioner cannot said to have improved with the B
filing of the challan against him when prima facie case has
been found against the accused petitioner."
7. We are of the considered opinion that the approach
adopted by the High Court is wholly erroneous. The application
for anticipatory bail has been rejected without considering the c
case of the appellant solely on the ground that the challan has
now been presented.
8. We may notice here that the provision with regard to the
grant of anticipatory bail was introduced on the D
> 1 recommendations of the Law Commission of India in his 41 st
Report dated 24.09.1969. The recommendations were
considered by this Court in a Constitution Bench decision in
the case of Gurbaksh Singh Sibbia and others vs. State of
Punjab, (1980) 2 sec 565. Upon consideration of the entire E
issue this Court laid down certain salutary principles to be
followed in exercise of the power under Section 438 Cr.P.C.
by the Sessions Court and the High Court. It is clearly held that
the anticipatory bail can be granted at any time so long as the
.>. •
applicant has not been arrested. When the application is made F
to the High Court or Court of Sessions it must apply its own
mind on the question and decide when the case is made out
for granting such relief. In our opinion, the High Court ought not
to have left the matter to the Magistrate only on the ground that
the challan has now been presented. There is also no reason G
to deny anticipatory bail merely because the allegation in this
case pertains to cheating or forgery of a valuable security. The
merits of these issues shall have to be assessed at the time
of the trial of the accused persons and denial of anticipatory
bail only on the ground that the challan has been presented
H
438 SUPREME COURT REPORTS [2009) 16 (ADDL.) S.C.R.
A would not satisfy the requirements of Sections 437 and 438
Cr.P.C.
9. In our opinion, the High Court committed a serious error
of law in not applying its mind to the facts and circumstances
of this case. The High Court is required to exercise its
B
discretion upon examination of the facts and circumstances and
to grant anticipatory bail "if it thinks fit". The aforesaid
expression has been explained by this Court in Gurbaksh
Singh's case (supra) as follows:
c "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
D 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 mere reason that the
E 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."
• •
F 10. The salutary provision contained in Section 438
Cr.P.C. was introduced to enable the Court to prevent the
deprivation of personal liberty. It cannot be permitted to be
jettisoned on technicalities such as "the challan h?·:ing been
presented anticipatory bail cannot be granted". We may notice
G here some more observations made by this Court in the case
of Gurbaksh Singh (supra) :
• '
"We find a great deal of substance in Mr Tarkunde's
submission that since denial of bail amounts to deprivation
H
11
i RAVINDRA SAXENA v. STATE OF RAJASTHAN 439
[SURINDER SINGH NIJJAR, J.]
of personal liberty, the court should lean against the A
imposition of unnecessary restrictions on the scop'e 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 B
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 c
Section 438 can make its provisions constitutionally
vulnerable since the right to personal freedom cannot be
made to depend on complianci:i with unreasonable
restrictions. The beneficent provision contained in Section
438 must be saved, not jettisoned. No doubt can linger
D
> after the decision in Maneka Gandhi, that in order to meet
l
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 E
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."
11. In our opinion, the High Court erred in not considering F
the application for anticipatory bail in accordance with law. The
defence put forward by the appellant cannot be obliterated at
this stage itself. We are also of the opinion, that the submission
of the learned counsel for the appellant that the dispute herein
is purely of a civil nature cannot be brushed aside at this stage. G
We, therefore, qrant anticipatory bail to the appellant in the case
~ ~ pending on the basis of FIR No.107/2007 registered at Police
Station Vidhyadhar Nagar, Jaipur City under Section 420, 467,
468, 120-B IPC now pending only under Section 420 and 120-
H
440 SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.
A B IPC. It is directed that in the event of arrest the appellant shall •
be released on bail to the satisfaction of the Investigating
Officer. It is also directed that the appellant shall join
investigation as and when required.
12. The impugned order is set aside and the appeal is
8
allowed.
RP. Appeal allowed.
• •
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