Holding

The High Court's cancellation of the anticipatory bail was unjustified; the Sessions Court's order granting anticipatory bail under Section 438 stands.

Summary

The appellants, accused of dowry death and related offences under Sections 498A, 304B (IPC) and Sections 3 and 4 (Dowry Prohibition Act), obtained anticipatory bail from an Additional Sessions Judge under Section 438 of the CrPC after the court considered two dying declarations that made no allegation against them. The State and the complainant appealed, and the Nagpur Bench of the High Court cancelled the anticipatory bail, holding that the Sessions Judge had ignored material facts. The Supreme Court examined whether the High Court was justified in overturning the bail, emphasizing the need for "cogent and overwhelming" circumstances to cancel bail already granted and noting that the Sessions Judge had given reasoned findings based on the dying declarations and other evidence. The Court held that the High Court erred, as there was no evidence of non‑co‑operation or misuse of bail, and that the distinction between factors for refusing bail initially and cancelling an already‑granted bail was overlooked. Consequently, the Supreme Court set aside the High Court order and restored the anticipatory bail.

Issues considered

The correctness of the High Court's cancellation of anticipatory bail granted under Section 438 of the CrPC.
Whether the material facts, especially the dying declarations, justify the grant of anticipatory bail in a dowry‑death case.
The criteria required for cancellation of anticipatory bail that has already been granted.
The distinction between factors relevant for refusing bail at the initial stage and for cancelling bail already granted.
Whether the Sessions Court's order granting anticipatory bail was perverse or erroneous.

Legislation cited

Code of Criminal Procedure, 1973s. 438
Dowry Prohibition Act, 1961s. 3, s. 4
Indian Penal Code, 1860s. 304B, s. 34, s. 498A

Subjects

anticipatory bailSection 438dowry deathbail cancellationjudicial discretiondying declarationnon‑bailable offence

Judgment

[2009] 10 S.C.R. 978

A SAVITRI AGARWAL & ORS.
V.
STATE OF MAHARASHTRA & ANR.
(Criminal Appeal Nos. 1178-1179 of 2009)
JULY 10, 2009
B
[D.K. JAIN AND R.M. LODHA, JJ.]

Code of Criminal Procedure, 1973 - s. 438 -
Anticipatory bail - Accusation of committing offence ulss.
C 498-A, 304-8134 /PC and ss. 3 and 4 Dowry Prohibition Act
- Grant of anticipatory bail by Sessions Court - Cancellation
of, by High Court - Sustainability of - Held: Not sustainable
-Sessions Judge passed a reasoned order after due
consideration of facts and circumstances of the case - High
o Court overlooked the distinction of factors relevant for j
.
rejecting bail in non-bailable case in the first instance and
cancellation of bail already granted - Very cogent and
overwhelming circumstances are necessary fqr an order
directing cancellation of bail already granted - No complaint
E against accused that they did not co-operate with the
investigation or misused anticipatory bail granted to them -
Order of Sessions Judge granting anticipatory bail to accused
restored.

Appellants were accused of having committed
F offence u/ss. 498A, 3048 r/w s. 34 IPC and ss. 3 and 4 of
the Dowry Prohibition Act. They applied for grant of
anticipatory bail. The Sessions Judge granted the same
u/s. 438 Cr.P.C. It considered the dying declaration
recorded by Executive Magistrate where the deceased
G had not leveled any allegation against the appellants for
demanding any dowry or for torturing her for any other
purpose. Respondent-State and the complainant filed
application for cancellation of the anticipatory bail granted

H
to the appellant. High Court allowed the same. Hence the
978 -
SAVITRI AGARWAL & ORS. v. .STATE OF 979
MAHARASHTRA & ANR.

present appeals. A

Disposing of the appeals, the Court

HELD: 1.1. In the instant case, the High Court
committed a serious error in reversing the order passed
by the Additional Sessions Judge granting anticipatory B
bail to the appellants. The Sessions Judge passed the
order after due consideration of the facts and
circumstances of the case, in particular, the two dying
· declarations, one recorded in the presence of the parents
of the deceased and the statements of the members of C
. the Women Cell who had dealt with the case when on
15th July, 2006, the deceased had left the house with
intention to commit suicide and therefore, it cannot be
said that the judicial discretion exercised 1n granting
anticipatory bail was perverse or erroneous, warranting D
, interference by the High Court. The order passed by the
Sessions Judge was supported by reasons to the extent
required for exercise of judicial discretion in the matter
of grant of bail. It may be true that some of the
circumstances, noticed by the High Court in the E
impugned order, viz., no reference to lantern in the spot
panchnama or the necessity of cleaning the lantern at 4
. p.m. and/or availability of an inverter in the house etc.,
could have persuaded the Sessions Judge to take a
different view but it cannot be said that the factors which F
weighed with the Sessions Judge in granting ba~ were .
irrelevant to the issue before him, rendering the _order: as
' . .,...,_
perverse. Moreover, merely because the High Court had
a different view on same set of material which had been
taken into consideration by the Sessions Judge, was not G
a valid ground to label the order passed by the Sessions
Judge as perverse. [Para 20] [993-A-F]
•' 1.2. High Court overlooked the distinction of factors
: relevant for rejecting bail in a non-bailable case in the first
H
980 SUPREME COURT REPORTS [2009] 10 S.C.R.

A instance and the cancellation of bail already granted.
Very cogent and overwhelming circumstances are
necessary for an order directing the cancellation of bail
already granted, which, were missing in the instant case.
Nothing was brought to the notice from which it could be
B inferred that the appellants have not co-operated in the
investigations or have, in any manner, abused the
concession of bail granted to them. As a matter of fact,
counsel representing the State, stated that after grant of
anticipatory bail to the appellants, no investigation in the
c case has been conducted. [Paras 21] [993-F-H; 994-A-C]
1.3. The impugned order setting aside the
anticipatory bail granted to the appellants by the
Additional Sessions Judge, cannot be sustained and is
set aside. The order passed by the Additional Sessions
D Judge confirming the ad-interim anticipatory bail to the
appellants is restored. [Para 22] [994-D]

Shri Gurbaksh Singh Sibbia and Ors. vs. State of Punjab
1980 (2) sec 565, followed.
E
Puran vs. Rambilas Anr. 2001 (6) SCC 338; Ba/chand .
Jain vs. State of M.P. 1976 (4) SCC 572; Gurbaksh Singh
Sibbia vs. State of Punjab AIR 1978 P&H 1; Adri Dharan Das
Vs. State of WB. 2005 (4) SCC 303; Do/at Ram and Ors. vs.
State of Haryana 1995 (1) SCC 349, referred to.
F
Case Law Reference:
2001 (6) sec 338 Referred to. Para 8
1976 (4) sec 572 Referred to. Para 10
G
AIR 1978 P&H 1 Referred to. Para 15
1980 (2) sec 565 Followed. Paras
16, 17 and 20

H
SAVITRI AGARWAL & ORS. v. STATE OF 981
' MAHARASHTRA & ANR.

2oos (4) sec 303 Referred to. Para 18 A
~
1995 (1) sec 349 Referred to. Para 21

CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal
Nos. 1178-1179 of 2009. B

From the Judgment & Order dated 02.7.2008 of the High
Court of Bombay, Nagpur Bench in Criminal Application No.
-t
250 of 2008 and Criminal Application No. 2081 of 2008.

Uday Umesh Lalit, Jemini Kasat, Gagan Sanghi and
c
Rameshwar Prasad Goyal for the Appellants.

Shekhar Naphade, Arun Agarwal, Nikhil Nayyar, T.V.S.
Ragahvendra Sreyas, Ambuj Agrawal and Ravindra Keshavrao
.,
../ Adsure for the Respondents. D

The Judgment of the Court was delivered by

D.K. JAIN, J. 1. Leave granted.

2. Challenge in these two appeals is to the judgment and E
order dated 2nd July, 2008 passed by the High Court of
Judicature at Bombay, Nagpur Bench, Nagpur in Criminal
~
Applications No.250 and 2081 of 2008, whereby the said two
..
applications filed by the State and the complainant respectively,
have been allowed and the protection granted to the appellants F
by the Sessions Judge, Amravati vide order dated 18th
December, 2007 in terms of Section 438 of the Code of
Criminal Procedure, 1973 (for short 'the Code') has been
withdrawn. The appellants herein are the mother-in-law, father-
in-law, husband and the younger brother of the father-in-law of G
the deceased-Laxmi. They are accused of having committed
~j
offences punishable under Sections 498A, 304-B read with
Section 34 of the Indian Penal Code, 1860 (for short 'the IPC')
and Sections 3 and 4 of the Dowry Prohibition Act, 1961.
H
982 SUPREME COURT REPORTS [2009] 10 S.C.R.

A 3. Material facts, leading to the filing of these appeals, are
as follows:

The deceased-Laxmi got married to appellant No.3 on
26th January, 2006. On 13th October, 2006, they were blessed
with a baby boy. On 6th December, 2007 at about 4.30 p.m.,
8
appellant No.2 (father-in-law) is stated to have heard the cries
of Laxmi and when he rushed to the second floor of the house,
he saw her burning. He tried to douse the fire. Laxmi told him
that her son was lying in the bathroom. He rushed to the
bathroom and found that the child also had burns. Laxmi and
C her child were removed to the hospital. At about 6.40 p.m., her
statement was recorded by the Executive Magistrate wherein
she stated that she and her son caught fire when she was
pouring kerosene oil in the lamp which accidentally fell down;
the oil got spilled over and both of them got burnt. At about
D 10.55 p.m., the minor child expired. On receiving the intimation,
parents of Laxmi reached the hospital at about 11.30 p.m. the
same night. On 7th December, 2007, at about 1.40 p.m. another
statement of Laxmi was recorded by the Executive Magistrate
wherein again she reiterated that.she had got burnt accidentally.
E
4. On 8th December, 2007, father of Laxmi lodged a
complaint with Police Station City Kotwali, Amravati against the
appellants, inter alia, alleging that after the marriage of his
daughter on 26th January, 2006, the appellants were torturing
F her for not meeting dowry demand of Rs.2 lakhs and earlier on
15th July, 2006, due to torture she had left the matrimonial
home, intending to commit suicide but due to intervention of the
relatives, she returned back to Amravati. On the said complaint,
the police registered an FIR against the appellants for offences
G under Section 498A read with Section 34, IPC and Sections 3
and 4 of the Dowry Prohibition Act, 1961.

5. On 6th December, 2007 the appellants applied for grant
of anticipatory bail before the Sessions Judge, Amravati, who,
vide order dated 10th December, 2007, initially granted interim
H protection to them from arrest till the next date of hearing i.e.
'i'
SAVITRI AGARWAL & ORS. v. STATE OF 983
MAHARASHTRA & ANR. [D.K. JAIN, J.] ·

17th December, 2007. On 16th December, 2007, Laxmi A
---. expired and offence under Section 304-8 IPC came to be
added against the appellants. On 18th December, 2007, after
hearing both sides and upon taking into consideration the said
two dying declarations made by the deceased - Laxmi,
statements of the complainant and witnesses and after perusing B
the case diary, the learned Sessions Judge confirmed the
anticipatory bail granted to the appellants.

6. Aggrieved, the State of Maharashtra and the
complainant filed petitions before the High Court for cancellation
of anticipatory bail granted to the appellants. As noted earlier,
c
by the impugned order, the High Court has cancelled the
anticipatory bail granted to the appellants, on the ground that~
the Sessions Judge had failed to apply his mind to certain vital
circumstances viz. - absence of mention of lantern and match
.;t stick in the panchnama; necessity of lantern and its lighting at D
4 p.m. in the afternoon when the house was equipped with an
inverter; the daughter-in-law doing such risky work with one year
old child, particularly when elders in the family were present in
the house and had everything been well in the house, there was
no occasion for. the parents of the deceased to implicate her E
in-laws. Inter alia, observing that the evidence, which directly
involved the appellants, had been ignored, rendering the order
"f
~
passed by the Sessions Judge perverse, as noted above, the
High Court has set aside the said order. The High Court has
also noted that the offences complained. of, being of serious F
nature, there was no ground to grant anticipatory bail to the
appellants. Being aggrieved, the appellants are before us in
these appeals.

7. Mr. Uday U. Lalit, learned senior counsel appearing for G
the appellants contended that the High Court has failed to
appreciate the factual background of the case, particularly the
fact that in both the dying declarations recorded by the
Executive Magistrate, the deceased
'
had not levelled
.
any
allegation against the appellants for demanding any dowry or
H
984 SUPREME COURT REPORTS [2009] 10 S.C.R.

A for torturing her for any other purpose. It was strenuously urged
that the second dying declaration recorded on 7th December, .. -
2007 at about 1.40 p.m. was in the presence and perhaps at
the instance of the father of the deceased, who admittedly had
arrived in the hospital on 6th December, 2007 at 11.30 p.m.,
B yet the deceased did not level any allegation against the
appellants. Learned counsel argued that the anticipatory bail
having been granted by the Sessions Judge upon
consideration of the relevant material placed before him by the
prosecution, viz. the dying declarations, the statements
c recorded by the investigating officer and the case diary, in the
absence of any complaint by the Investigating Officer that the
appellants were not cooperating in the investigations after the
grant of interim protection on 10th December, 2007, or that they
had misused the anticipatory bail granted to them, there was
no other overwhelming circumstance before the High Court,
0
warranting interference with the judicial discretion exercised by
the Sessions Judge and cancellation of bail.

8. Per contra, Mr. Sekhar Naphade, learned senior
counsel, appearing on behalf of the State strenuously urged that
E the circumstances relied upon by the High Court in its order
cancelling the anticipatory bail point a needle of suspicion at
the appellants and therefore, to elicit the truth custodial
interrogation of the appellants would be necessary. Highlighting
the fact that the deceased had left her matrimonial home on
F 15th July, 2006 intending to commit suicide because of torture
by the appellants and had returned back to her matrimonial
home on being persuaded by the relatives of both sides on the
assurance by the appellants that she would not be harassed,
the incident in question raises presumption against the
G appellants in terms of Section 304-B IPC. Learned counsel for
the complainant, supporting the orders passed by the High
Court, submitted that since order granting anticipatory bail had
been passed by the Sessions Judge by ignoring evidence and
material on record and the nature of offence, in the light of the
H
SAVITRI AGARWAL & ORS. v. STATE OF 985
·~
MAHARASHTRA & ANR. [D.K. JAIN, J.]

decision of this Court in Puran Vs. Rambi/as & Anr. 1 , the Hjgh A
"-1
Court was justified in cancelling the bail.

9. Before examining the merits of the rival contentions, We
deem it appropriate to re-capitulate the background in which
Section 438 was inserted in the Code and the bro~d
B
parameters to be kept in view while dealing with an application
under the said provision because despite plethora of case law
on the subject including a decision of the Constitution Bench
·-r
in Shri Gurbaksh Singh Sibbia & Ors. Vs. State of Punjab 2
certain misgivings in regarb to the concept and scope of the
said provision still seem to revail. .
c
10. Section 438 of the Code 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
..;t· accusation of having committed a non-bailable offence. The D
expression ·anticipatory bail' has not been defined in the Code.
But as observed in Balchand Jain Vs. State of M.P. 3 ,
'anticipatory bail' means 'bail in anticipation of arrest'. The
expression 'anticipatory bail' is a misnomer inasmuch as it is
not as if bail is presently granted by the Court in anticipation of E
arrest. When a competent court grants ·anticipatory bail', it
makes an order that in the event of arrest, a person shall be
'f
released on bail. There is no question of release on bail unless
;.
a person is arrested and, therefore, it is only on arrest that the
order granting anticipatory bail becomes operative. The Court F
went on to observe that the power of granting ·anticipatory bail'
is somewhat extraordinary in character and it is only in
'exceptional cases' where it appears that a person might be
falsely implicated, or a frivolous case might be launched
against him, or "there are reasonable grounds for holding that
G
a person accused of an offence is not likely to abscond, or
otherwise misuse his liberty while on bail" that such power may
1. . (2001) 6 sec 338.
2. (1980) 2 sec 565.
3. (1976) 4 sec 572. H
986 SUPREME COURT REPORTS [2009] 10 S.C.R.

A be exercised. The power being rather unusual in nature, it is
~-
entrusted only to the higher echelons of judicial service, i.e. a
Court of Session and the High Court. Thus, the ambit of power
conferred by Section 438 of the Code was held to be limited.

B 11. Historically, the Code of Criminal Procedure, 1898 (old
Code) did not contain specific provision corresponding to
Section 438 of the present Code of 1973. Under the old Code,
there was a sharp difference of opinion amongst various High
Courts on the question whether a Court had inherent power to
make an order of bail in anticipation of arrest. The
c preponderance of view, however, was that it did not have such
power. The Law Commission of India considered the question
and vide its 41 st Report, recommended introduction of an
express provision in this behalf.

D 12. The suggestion of the Law Commission was accepted t

by the Central Government and in the Draft Bill of the Code of
Criminal Procedure, 1970, Clause 447 conferred an express
power on the High Court and the Court of Session to grant
anticipatory bail.
E
13. The Law Commission again considered the issue and
stated;
~

'The Bill introduces a provision for the grant of anticipatory
bail. This is substantially in accordance with the
F recommendation made by the previous Commission. 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.

G 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
H
SAVITRI AGARWAL & ORS. v. STATE OF 987
MAHARASHTRA & ANR. [O.K. JAIN, J.]

._, for reasons to be recorded, and if the court is satisfied that A
such a direction is necessary in the interests of justice.

It will also be convenient to provide that notice of the
interim order as well as of the final orders will be given to
the Superintendent of Police forthwith". B

[Law Commission of India, Forty-eighth Report, para 31]

14. Keeping in view the reports of the Law Commission,
Section 438 was inserted in the Code. Sub-section (1) of
Section 438 enacts that when any person has reason to believe c
that he may be arrestedpn an accusation of having committed
a non-bailable offence, he- may apply to the High Court or to
the Court of Session for a direction that in the event of his arrest
he shall be released on bail, and the Court may, if it thinks fit, /
direct that in the event of such arrest he shall be released on o
bail. Sub-section (2) empowers the High Court or the Court of
Session to impose conditions enumerated therein. Sub-section
(3) states that if such person is thereafter arrested without
warrant by an officer in charge ofa police station on such
accusation, he shall be released on bail.
E
15. In Gurbaksh Singh Sibbia (supra), the Constitution
1 Bench was called upon lb consider correctness or otherwise
of principles laid down by the Full Bench of High Court of Punjab
& Haryana in Gurbaksh Singh Sibbia ys.State of Punjab4 •
The Full Bench ofthe High Court summarized the law relating F
to anticipatory bail as reflected in Section 438 of the Cbde and
laid down eight principles which were to be kept in view while
exercising discretionary power to grant anticipatory bail.

16. The Constitution Bench while disagreeing in principle G
with the constraints which the High Court had engrafted on the
power conferred by Section 438 of the Code, inter alia,
observed that Jhe Legislature has conferred a wide discretion
on the High Court and the Court of Session to grant anticipatory
4. AIR 1978 P&H 1: 1978 Crl LJ 20 (FB). H
988 SUPREME COURT REPORTS [2009] 10 S.C.R.

A bail since it felt, firstly, that it would be difficult to enumerate t-'
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
matter of grant of relief in the nature of anticipatory bail. The
B Court said;

"Generalizations on matters which rest on discretion and
the attempt to discover formulae of universal application
when facts are bound to differ from case to case frustrate
the very purpose of conferring discretion. No two cases are
c alike on facts and therefore, Courts have to be allowed a
little free play in the joints if the conferment 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,
~
D these are higher Courts manned by experienced persons.
secondly, their orders are not final but are open to
appellate or revisional scrutiny and above all because,
discretion has always to be exercised by Courts judicially
and not according to whim, caprice or fancy. On the other
E hand, there is a risk in foreclosing categories of cases in
which anticipatory bail may be allowed because life throws
up unforeseen possibilities 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
F challenges".

17. The Court felt that wide discretionary power conferred
by the Legislature on the higher echelons in the criminal justice
delivery system cannot be put in the form of straight-jacket rules
for universal application as the question whether to grant bail
G
or not depends for its answer upon a variety of circumstances,
the cumulative effect of which must enter into the judicial verdict. '-
A circumstance which, in a given case, turns out to be
conclusive, may or may not have any significance in another
case. While cautioning against imposition of unnecessary
H
SAVITRI AGARWAL & ORS. v. STATE OF 989
MAHARASHTRA & ANR. [D.K. JAIN, J.]

A
. _,,
_
restrictions on the scope of the Section, because, in its opinion,
over generous infusion of constraints and conditions, which
.. were not to be found in Section 438 of the Code, could make
the provision constitutionally vulnerable, since the right of
personal freedom, as enshrined in Article 21 of the Constitution,
cannot be made to depend on compliance with unreasonable B
restrictions, the Constitution Bench laid down the following
guidelines, which the Courts are required to keep in mind while
dealing with an application for grant of anticipatory bail:

(i) Though the power conferred under Section 438 of
the Code can be described as of an extraordinary
c
character, but this does not justify the conclusion
that the power must be exercised in exceptional
cases only because it is of an extraordinary
character. Nonetheless, the discretion under the
-~ Section has to be exercised with due care and D
circumspection depending on circumstances
justifying its exercise.

(ii) Before power under sub-section (1) of Section 438
of the Code is exercised, the Court must be E
satisfied that the applicant invoking the provision
has reason to believe that he is likely to be arrested
~
for a non-bailable of:fence and that belief must be
i founded on reasonable grounds. Mere "fear" is not
belief, for which re'ason, it is not enough for the F
applicant to show that he has some sort of 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
G
for a non-bailable offence, must be capable of
_)
being examined by the Court objectively. Specific
events and facts must be disclosed by the applicant
in order to enable the Court to judge of the
reasonableness of his belief, the existence of which
, H
990 SUPREME COURT REPORTS (2009] 10 S.C.R.

A is the sine qua non of the exercise of power t•
conferred by the Section.
~

(iii) The observations made in Balchand Jain's case
(supra), regarding the nature of the power conferred
B by Section 438 and regarding the question whether
the conditions mentioned in Section 437 should be
read into Section 438 cannot be treated as
conclusive on the point. There is no warrant for
reading into Section 438, the conditions subject to
which bail can be granted under Section 437(1) of
c the Code and therefore, anticipatory bail cannot be
refused in respect of offences like criminal breach
of trust for the mere reason that the punishment ·
provided for is imprisonment for life. Circumstances
may broadly justify the grant of bail in such cases
D too, though of course, the Court is free to refuse
anticipatory bail in any case if there is material
before it justifying such refusal.

(iv) No blanket order of bail should be passed and the
E Court which grants anticipatory bail must take care
to specify the offence or the offences in respect of
which alone the order will be effective. While ;,
granting relief under Section 438( 1) of the Code, .;.
appropriate conditions can be imposed under
F Section 438(2) so as to ensure an uninterrupted
investigation. One such condition 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
G
recovery. Otherwise, such an order can become a
charter of lawlessness and a weapon to stifle
\, -
prompt investigation into offences which could not
possibly be predicated when the order was
H
passed.
-
SAVITRI AGARWAL & ORS. v. STATE OF 991
MAHARASHTRA & ANR. [D.K. JAIN, J.]
(v) The filing of First Information Report (FIR) is not a A
--i'
condition precedent to the exercise of power under
~-!
Section 438. The imminence of a likely arrest
founded on a reasonable belief can be shown to
exist even if an FIR is not yet filed.
B
(vi) An anticipatory bail can be granted even after an
FIR is filed so long as the applicant has not been
arrested.

(vii) The provisions of Section 438 cannot be invoked
after the arrest of the accused. After arrest, the c
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.
D
' (viii) An interim bail order can be passed under Section
438 of the Code without notice to the Public
Prosecutor but notice should be issued to the Public
Prosecutor or to the Government advocate forthwith
and the question of bail should be re-examined in E
~ the light of respective contentions of the parties. The
ad-interim order too must conform to the
1- requirements of the Section and suitable conditions
- should be imposed on the applicant even at that
stage.
F
(ix) Though it is not necessary that the operation of an
order passed under Section 438( 1) of the Code be
limited in point of time but 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 FIR in G
. ,..-' respect of the matter covered by the order. The
applicant may, in such cases, be directed to obtain
an order of bail under Section 437 or 439 of the
Code within a reasonable short period after the
filing of the FIR. H
992 SUPREME COURT REPORTS [2009] 10 S.C.R.

A 18. At this juncture, it would be appropriate to note that the
t -
view expressed by this Court in Adri Dharan Das Vs. State of
W.B. 5 to the effect that while dealing with an application under ...
Section 438 of the Code, the Court cannot pass an interim
order restraining arrest as it will amount to interference in the
B investi8ation, does not appear to be in consonance with the
opinion of the Constitution Bench in Sibbia's case (supra).
Similarly, the observation that power under Section 438 is to
be exercised only in exceptional cases seems to be based on
the decision in Balchand's case (supra), which has not been
c fully approved by the Constitution Bench. On this aspect, the
Constitution Bench stated thus:

"The observations made in Balchand Jain regarding the
nature of the power conferred by Section 438 and
regarding the question whether the conditions mentioned
D in Section 437 should be read into Section 438 cannot •
therefore be treated as concluding the points which arise
directly for our consideration. We agree, with respect, that
the power conferred by Section 438 is of an extraordinary
character in the sense indicated above, namely, that it
E is not ordinarily resorted to like the power conferred by
Sections 437 and 439. We also agree that the power to
grant anticipatory bail should be exercised with due care .;
and circumspection but beyond that, it is not possible to
agree with the observations made in Balchand Jain in an
F altogether different context on an altogether different point".

(Emphasis Supplied)

19. It would also be of some significance to mention that
Section 438 has been amended by the Code of Criminal
G Procedure (Amendment) Act, 2005. The amended Section is
more or less in line with the parameters laid down in Sibbia's I..

case (supra). However, the amended provision has not yet
been brought into force.

H 5. (2005) 4 sec 303.
SAVITRI AGARWAL & ORS. v. STATE OF 993
MAHARASHTRA & ANR. [D.K. JAIN, J.]

20. Having considered the case in hand on the touchstone A
"'-+"
of the aforementioned parameters, we are of the opinion that
the High Court has committed a serious error in reversing the
order passed by the Additional Sessions Judge, Amravati
granting anticipatory bail to the appellants. The learned
Sessions Judge passed the order after due consideration of B
the facts and circumstances of the case, in particular, the two
dying declarations, one recorded in the presence of the parents
of the deceased and the statements of the members of the
Women Cell who had dealt with the case when on 15th July,
2006, the deceased had left the house with intention to commit c
suicide and therefore, it cannot be said that the judicial
'I
discretion exercised in granting anticipatory bail was perverse
or erroneous, warranting interference by the High Court. The
order passed by the Sessions Judge was supported by
A reasons to the extent required for exercise of judicial discretion D
in the matter of grant of bail. It may be true that some of the
circumstances, noticed by the High Court in the impugned
order, viz., no reference to lantern in the spot panchnama or
the necessity of cleaning the lantern at 4 p.m. and/or availability
of an inverter in the house etc., could have persuaded the
E
Sessions Judge to take a different view but it cannot be said
that the factors which weighed with the Sessions Judge in
+. granting bail were irrelevant to the issue before him, rendering
the order as perverse. Moreover, merely because the High
Court had a different view on same set of material which had
been taken into consideration by the Sessions Judge, in our F
vie~. was not a valid ground to label the order passed by the
Sessions Judge as perverse.

21. It also appears to us that the High Court has
overlooked the distinction of factors relevant for rejecting bail G
in a non-bailable case in the first instance and the cancellation
of bail already granted. In Do/at Ram & Ors. Vs. State of
Haryana 6 , while dealing with a similar situation where the High
Court had cancelled the anticipatory bail granted by the .
, 6. (1995) 1 sec 349. H
994 SUPREME COURT REPORTS [2009] 10 S.C.R.

A Sessions Judge in a dowry death case, this Court had
observed that rejection of bail in a non-bailable case at the initial +'"
stage and the cancellation of bail had to be considered or dealt
with on different basis. Very cogent and overwhelming
circumstances are necessary for an order directing the
B cancellation of bail already granted, which, in our opinion, were
missing in the instant case. Nothing was brought to our notice
from which it could be inferred that the appellants have not co-
operated in the investigations or have, in any manner, abused Y-
the concession of bail granted to them. As a matter of fact, Mr.
c Naphade, learned senior counsel representing the State, stated
that after grant of anticipatory bail to the appellants, no
investigation in the case has been conducted.

22. For the foregoing reasons, in our judgment, the
impugned order setting aside the anticipatory bail granted to
D the appellants by the learned Additional Sessions Judge,
cannot be sustained. Accordingly, the appeals are allowed;
impugned order is set aside and order dated 18th December,
2007 passed by the Additional Sessions Judge confirming the
ad-interim anticipatory bail to the appellants, is restored. It goes
E without saying that nothing said by the High Court or by us
hereinabove shall be construed as expression of any opinion
on the merits of the case. .,
23. Both the appeals stand disposed of, accordingly.
F
N.J. Appeals disposed of.