Supreme Court of India
SIDDHARAM SATLINGAPPA MHETREversusSTATE OF MAHARASHTRA AND OTHERS
- Citation
- 2010 INSC 843
- Decided
- 2 December 2010
- Disposal
- Appeal(s) allowed
- Bench
- DALVEER BHANDARI
Holding
Anticipatory bail under Section 438 CrPC is not limited in duration, cannot be read down by Section 437, and must be granted in accordance with the principles laid down in Sibbia's case.
Summary
The appellant, a Congress party member, was accused of instigating party workers to fire on BJP supporters, resulting in a murder eight days later. He applied for anticipatory bail under Section 438 of the CrPC, which the High Court rejected. The Supreme Court, relying on the Constitution Bench decision in Sibbia's case, held that Section 438 is not subject to the limitations of Section 437 and that anticipatory bail should not be limited in duration or conditioned on surrender for regular bail. The Court set aside the High Court's order, directing the appellant to cooperate with the investigation and to be released on bail if arrested, upon furnishing a personal bond. The appeal was allowed.
Issues considered
- The scope and ambit of anticipatory bail under Section 438 CrPC
- Whether Section 438 can be limited in duration or read with Section 437
- Whether the High Court's refusal of anticipatory bail was consistent with Sibbia's case
- The applicability of the doctrine of per incuriam to earlier judgments
Legislation cited
- Code of Criminal Procedure, 1973s. 437, s. 438, s. 439
- Constitution of Indias. Article 21
- General Clauses Act, 1897
Subjects
anticipatory bailSection 438personal libertyArticle 21per incuriamSibbia casebail jurisprudencepolitical violenceSupreme Court
Judgment
(2010] 15 (ADDL.) S.C.R. 201
SIDDHARAM SATLINGAPPA MHETRE A
v.
. STATE OF MAHARASHTRA AND OTHERS
(Criminal Appeal No. 2271 of 2010)
DECEMBER 02, 2010
B
[DALVEER BHANDARI AND K.S. PANICKER
RADHAKRISHNAN, JJ.]
Code of Criminal Procedure, 1973:
c
s. 438 - Anticipatory bail - Grant of - Appellant was
member of a political party - FIR alleging that appellant and
his brother instigated their party workers to fire gun shots at
the workers of opponent political party which resulted in the
murder of one person - Murder took place eight days after D
the incident of instigation - Application for anticipatory bail
by appellant - Rejection of, by the High Court - Sustainability
of - Held: Order passed by the High Court not sustainable -
Appellant directed to join investigation and in the event of
arrest, appellant to be released on bail on his furnishing a E
personal bond - Judgment of Constitution Bench of the
Supreme Court in *Sibbia's case being on the same issue
regarding ambit, scope and object of the concept of
anticipatory bail u/s. 438 followed - Judicial discipline - Bail
- Precedent.
F
ss. 438 and 437 - Power u/s 438, if subject to limitations
uls. 437 - Held: The limitations mentioned in s. 437 cannot
be read into s. 438 - Plentitude of s. 438 must be given its
full play - Court can impose conditions for the grant of bail -
Baa G
s. 438 - Anticipatory bail - Grant of, for limited period -
Held: Order granting anticipatory bail for a limited duration
and, thereafter, directing the accused to surrender and apply
201 H
202 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A before a regular bail is contrary to the legislative intention and
the judgment of the Constitution Bench in *Sibbia's case -
When the bail order is confirmed then the benefit of the grant
of the bail should continue till the end of the trial of that case
- Directing the accused to surrender to custody after the
B limited period amounts to deprivation of his personal liberty
- s. 438 does not mention anything about the duration to which
a direction for release on bail in the event of arrest can be
granted - Courts should not impose restrictions on the ambit
and scope of s. 438 which are not envisaged by the legislature
c - Constitution of India, 1950 - Article 21 - Interpretation of
statutes - Legislative intent.
s. 438 - Anticipatory bail - Scope and ambit of -
Discussed.
D s. 438 - Anticipatory bail - Grant or refusal of - Exercise
of power - Relevant considerations for - Held: Courts should
maintain fine balance between societal interest vis-a-vis
personal liberty while adhering to the fundamental principle
of criminal jurisprudence regarding presumption of innocence
E of an accused until he is found guilty and sanctity of individual
liberty - Discretion must be exercised on the basis of the
available material and the facts of the particular case - When
accused joins investigation and fully co-operates with the
investigating agency, custodial interrogation should be
F avoided - Bail - Criminal jurisprudence.
Jurisprudence : Liberty - Personal liberty - Relevance
and importance of - Explained.
Constitution of India, 1950: Articles 21 and 19(1) - Right
G to life and personal liberty - Concept of - Explained.
Doctrines: Doctrine of per incuriam - Judgment passed
in ignorance of binding precedent - Held: Is rendered per
incuriam.
H Constitution of India, 1950: Article 141 - Reference to
SIDDHARAM SATLINGAPPA MHETRE v. STATE OF 203
MAHARASHTRA
larger Bench - When - Held: In case there is no judgment of A
a Constitution Bench or larger Bench of binding nature and
if the courl doubts the correctness of the judgments by two or
three judges, then the proper course would be to refer the
matter to a larger Bench of appropriate strength - Reference
to larger Bench. B
The appellant was a member of the Congress party.
According to the prosecution, the appellant alongwith his
brother instigated their party workers to fire gun shots at
the workers of BJP party which led to killing of one C
person. The incident of murder took place eight days
after the alleged incident of instigation. Th~ appellant filed
an application for grant of anticipatory bail. The High
Court rejected the application. Therefore, the appellant
filed the instant appeal.
D
Allowing the appeal, the Court
· HELD: 1.1 In the instant case, there is a direct
judgment of the Constitution Bench of this Court in
Sibbia's case dealing with "exactly the same issue E
regarding ambit, scope and object of the concept of
anticipatory bail enumerated under Section 438 of the
Code of Criminal Procedure, 1973. The controversy is no
longer res integra. The judicial discipline obliges this
Court to follow the said judgment in letter and spirit. The F
impugned judgment and order of the High Court
declining anticipatory bail .to the appellant cannot be
sustained and is consequently set aside. The appellant
is directed to join the investigation and fully cooperate
with the investigating agency. In the event of arrest the
appellant would be released on bail. [Paras 151, 152 and G
153) [273-H; 274-A-C]
1.2 This Court in the * Sibbia 's case laid down the
following principles with regard to anticipatory bail:
H
204 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A (a) Section 438(1) Cr.P.C. is to be interpreted in light
of Article 21 of the Constitution of India.
(b) Filing of FIR is not a condition precedent to
exercise of power under Section 438 Cr.P .C.
B (c) Order under Section 438 would not affect the right
of police to conduct investigation.
(d) Conditions mentioned in Section 437 Cr.P.C .
.cannot be read into Section 438 Cr.P.C.
c (e) Although the power to release on anticipatory bail
can be described as of an "extraordinary" character
this would "not justify the conclusion that the power
must be exercised in exceptional cases only."
D (f) Powers are discretionary to be exercised in light
of the circumstances of each case.
(g) Initial order can be passed without notice to the
Public Prosecutor. Thereafter, notice must be issued
E forthwith and question ought to be re-examined after
hearing. Such ad interim order must conform to
requirements of the Section and suitable conditions
should be imposed on the applicant. [Para 119] [261-
B-H; 262-A]
F 1.3 The Constitution Bench in *Sibbia's case
comprehensively dealt with almost all aspects of the
concept of anticipatory bail under Section 438 Cr.P.C. In
view of the clear declaration of law laid down by the
Constitution Bench in *Sibbia's case, it would not be
G proper to limit the life of anticipatory bail. When the court
observed that the anticipatory bail is for limited duration
and thereafter, the accused should apply to the regular
court for bail, that means the life of Section 438 Cr.P.C.
would come to an end after that limited duration. This
H limitation has not been envisaged by the legislature. The
SIDDHARAM SATLINGAPPA MHETRE v. STATE OF 205
MAHARASHTRA
Constitution Bench in *Sibbia's case clearly observed that pt..
it is not necessary to re-write Section 438 Cr.P.C.
Therefore, in view of the clear declaration of the law by
the Constitution Bench, the life of the order under Section
438 Cr.P.C. granting bail cannot be curtailed. [Paras 133
and 134) [267-C-H; 268-A] . B
*Gurbaksh Singh Sibbia and Ors. vs. State of Punjab
(1980) 2 sec 565 - followed.
2.1 The society has a vital interest in grant or refusal
of bail because every criminal offence is an offence C
against the State. The order granting or refusing bail must
reflect perfect balance between the conflicting interests,
namely, sanctity of individual liberty and the interest of
the society. The law of bails dovetails two conflicting
interests namely, on the one hand, the requirements of D
shielding the society from the hazards of those
committing crimes and potentiality of repeating the same
crime while on bail and on the other hand absolute
adherence of the fundamental principle of criminal
jurisprudence regarding presumption of innocence of an E
accused until he is found guilty and the sanctity of
individual liberty. [Para 3) [221-C-D]
2.2 Police custody is an inevitable concomitant of
arrest for non-bailable offences. The concept of
anticipatory bail is that a person who apprehends his F
arrest in a non-bailable case can apply for grant of bail
to the Court of Sessions or to the High Court before the
arrest. It is clear from the statement of objects and
reasons that the purpose of incorporating Section 438 in
the Code of Criminal Procedure, 1973 was to recognize G
the importance of personal liberty and freedom in a free
and democratic country. On analyzing Section 438 Cr.P,.C.
the wisdom of the legislature becomes quite evident and
clear that the legislature was keen to ensure respect for
the personal liberty and also pressed in service the age- H
206 SUPREME COURT REPORTS (2010] 15 (ADDL.) S.C.R.
A old principle that an individual is presumed to be innocent
till he is found guilty by the court. [Paras 14 and 17) (227-
B-C; F-H]
3.1 All human beings are born with some unalienable
8 rights like life, liberty and pursuit of happiness. The
importance of these natural rights can be found in the fact
that these are fundamental for their proper existence and
no other right can be enjoyed without the presence of
right to life and liberty. Life bereft of liberty would be
C without honour and dignity and it would lose all
significance and meaning and the life itself would not be
worth living. That is why 'liberty' is called the very
quintessence of a civilized existence. [Paras 42 and 43)
[235-H; 236-A-B]
D 3.2 The term 'liberty' may be defined as the
affirmation by an individual or group of his or its own
essence. It needs the presence of three factors,
harmonious balance of personality, the absence of
restraint upon the exercise of that affirmation and
E organization of opportunities for the exercise of a
continuous initiative. 'Liberty' generally means the
prevention of restraints and providing such opportunities,
the denial of which would result in frustration and
ultimately disorder. Restraints on man's liberty are laid
F down by power used through absolute discretion, which
when used in this manner brings an end to 'liberty' and
freedom is lost. At the same time 'liberty' without restraints
would mean liberty won by one and lost by another. So
'liberty' means doing of anything one desires but subject
G to the desire of others. [Paras 45, 46 and 47) [236-G-H;
237-A-E]
3.3 In a properly constituted democratic State, there
cannot be a conflict between the interests of the citizens
and those of the State. The harmony, if not the identity,
H of the interests of the State and the individual, is the
SIDDHARAM SATLINGAPPA MHETRE v. STATE OF 207
MAHARASHTRA
fundamental basis of the modern Democratic National A
State. Yet the existence of the State and all government
and even all law must mean in a measure the curtailment
of the liberty of the individual. But such a surrender and
curtailment of his liberty is essential in the interests of the
citizens of the State. The individuals composing the State B
must, in their own interests and in order that they may
be assured the existence of conditions in which they
can, with a reasonable amount of freedom, carry on their
other activities, endow those in authority over them to
make laws and regulations and adopt measures which c
impose certain restrictions on the activities of the
individuals. [Para 51) [238-D-G]
Chambers' Twentieth Century Dictionary; Essays on
Freedom and Power by John E.E.f.J.; Treatise on War and
Civil Liberties by M. C. Setalvad; Development of D
Constitutional Guarantee of Liberty by Rosco Pound;
Commentaries on the Laws of England by Blackstone Vol. I,
p.134; Constitutional Law by Dicey 9th Edn., pp.207-08 -
referred to.
E
4.1 The Fundamental Rights represent the basic
values enriched by the people of this country. The aim
behind having elementary right of the individual such as
the Right to Life and Liberty is not fulfilled as desired by
the framers of the Constitution. It is to preserve and F
protect certain basic human rights against interference
by the State. The inclusion of a Chapter in. Constitution
is in accordance with the trends of modern democratic
thought. The object is to ensure the inviolability of certain
essential rights against political vicissitudes. [Para 59] G
[240-E-F]
4.2 Article 21 of the Constitution of India, 1950 is a
declaration of deep faith and belief in human rights. In this
pattern of guarantee woven in Chapter Ill of the
Constitution, personal liberty of man is at root of Article H
208 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A 21 and each expression used in Article 21 enhances
human dignity and values. It lays foundation for a society
where rule of law has primary and not arbitrary or
capricious exercise of power. The early approach to
Article 21 which guarantees right to life and personal
B liberty was circumscribed by literal interpretation in A.K.
Gopalan case. But in course of time, the scope of the
application of the Article against arbitrary encroachment
by the executives was expanded by liberal interpretation
of the components of the Article in tune with the relevant
c international understanding. Thus, protection against
arbitrary privation of "life" no longer means mere
protection of death, or physical injury, but also an
invasion of the right to "live" with human dignity and
wquld include all these aspects of life which would go to
make a man's life meaningful and worth living, such as
0
his tradition, culture and heritage. The object of Article 21
is to prevent encroachment upon personal liberty in any
manner. Article 21 is repository of all human rights
essentially for a person or a citizen. A fruitful and
meaningful life presupposes full of dignity, honour,
E health and welfare. In the modern "Welfare Philosophy",
it is for the State to ensure these essentials of life to all
its citizens, and if possible to non-citizens. [Paras 67, 69
and 71] [242-H; 243-A, D-F, H; 244-A-B]
F A. K. Gopalan v. The State of Madras AIR 1950 SC 27;
Kharak Singh v. State of U.P. and Ors. AIR 1963 SC 1295;
Maneka Gandhi v. Union of India and Anr. (1978) 1 SCC 248;
State of A.P. v. Challa Ramakrishna Reddy and Ors. (2000)
5 SCC 712; Kartar Singh v. State of Punjab and Ors. (1994)
G 3 SCC 569; Francis Coralie Mullin v. Administrator, Union
Territory of Delhi and Ors. (1981) 1 SCC 608; P. Rathinam/
Nagbhusan Patnaik v. Union of India and Anr. (1994) 3 SCC
394; Khedat Mazdoor Chetana Sangath v. State of M.P. and
Ors. (1994) 6 SCC 260; Central Inland Water Transport
H Corporation Ltd. and Anr. v. Brojo Nath Ganguly and Anr.
SIDDHARAM SATLINGAPPA MHETRE v. STATE OF 209
MAHARASHTRA
(1986) 3 SCC 156; Prem Shankar Shukla v. Delhi A
Administration (1980) 3 sec 526 - relied on.
Bugdaycay v. Secretary of State for the Home
Department (1987) 1 Ail ER 940; R on the application of
Pretty v. Director of Public Prosecutions (2002) 1 All ER 1; 8
R. v. Curr (1972) S.C.R. 889 - referred to.
5.1 The complaint filed against the accused needs to
be thoroughly examined including the aspect whether
the complainant has filed false or frivolous complaint on
earlier occasion. The ~ourt should also examine the fact C
whether there is any family dispute between the accused
and the complainant and the complainant must be clearly
told that if the complaint is found to be false or frivolous,
then strict action will be taken against him in accordance
with law. If the connivance between the complainant and D
the investigating officer is established then action be
taken against the investigating officer in accordance with
law. The gravity of charge and exact role of the accused
must be properly comprehended. Before arrest, the
arresting officer must record the valid reasons which E
have led to the arrest of the accused in the case diary. In
exceptional cases the reasons could be recorded
immediately after the arrest, so that while dealing with the
bail application, the remarks and observations of the
arresting officer can also be properly evaluated by the F
court. [Paras 94 and 95] [252-G-H; 253-A-C]
5.2 It is imperative for the courts to carefully and with
meticulous precision evaluate the facts of the case. The
discretion must be exercised on the basis of the available
material and the facts of the particular case. In cases G
where the court is of the considered view that the
· accused has joined investigation and he is fully co-
operating with the investigating agency and is not likely
to abscond, in that event, custodial interrogation should
be avoided. [Paras 96) [253-D-E] H
210 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A 6.1 The Constitution Bench in Sibbia's case clearly
observed that there is no justification for reading into
Section 438 Cr.P.C. the limitations mentioned in Section
437 Cr.P.C. The plentitude of the Section must be given
its full play. [Para 98) [253-H; 254-A-B]
B
6.2 The proper course of action for grant of
anticipatory bail ought to be that after evaluating the
averments and accusation available on the record if the
court is inclined to grant anticipatory bail then an interim
bail be granted and notice be issued to the public
C prosecutor. After hearing the public prosecutor the court
may either reject the bail application or confirm the initial
order of granting bail. The court would certainly be
entitled to· impose conditions for the grant of bail. The
public prosecutor or complainant would be at liberty to
D move the same court for cancellation or modifying the
conditions of bail any time if liberty granted by the court
is misused. The bail granted by the court should
ordinarily be continued till the trial of the case. [Para 101)
[254-G-H; 255-A-B]
E
6.3 The court which grants the bail also has the
power to cancel it. The discretion of grant or cancellation
of bail can be exercised either at the instance of the
accused, the public prosecutor or the complainant on
F finding new material or circumstances at any point of
time. [Para 103) [255-D]
6.4 The intention of the legislature is quite clear that
the power of grant or refusal of bail is entirely
discretionary. The Constitution Bench in Sibbia's case
G clearly stated that grant and refusal is discretionary and
it should depend on the facts and circumstances of each
case; and that the wisdom of the Legislature entrusting
this power to the superior courts namely, the High Court
and the Court of Session must be respected. [Para 104]
H [255-E-F]
SIDDHARAM SATLINGAPPA MHETRE v. STATE OF 211
MAHARASHTRA
7.1 The order granting anticipatory bail for a limited A
duration and, thereafter, directing the accused to
surrender and apply before a regular bail is contrary to
the legislative intention and the judgment of the
Constitution Bench in Sibbia's case. [Para 102) [255-CJ
B
7 .2 The court which grants the bail also has the
power to cancel it according to the provisions of the
General Clauses Act but ordinarily after hearing the public
prosecutor when the bail order is· confirmed then the
benefit of the grant of the bail should continue till the end
of the trial of that case. [Para 105] [256-D] C
7.3 The restriction on the provision of anticipatory
bail under Section 438 Cr.P.C. limits the personal liberty
of the accused granted under Article 21 of the
Constitution. In order to meet the challenge of Article 21 D
of the Constitution the procedure established by law for
depriving a person of his liberty must be fair, just and
reasonable. [Para 107) [256-F-H; 257-A]
Maneka Gandhi v. Union of India and Anr. (1978) 1 SCC
248 - relied on. E
7.4 Section 438 Cr.P.C. does not mention anything
about the duration to which a direction for release on bail
in the event of arrest can be granted. The order granting
an~ipatory bail is a direction specifically to release the F
actused on bail in the event of his arrest. Once such a
direction of anticipatory llail is executed by the accused
and he is released on bail, the concerned court would be
fully justified in imposing conditions including direction
of joining investigation. [Para 108] [257-B-C] G
7 .5 In pursuance to the order of the Court of
Sessions or the High Court, once the accused is released
on bail by the trial court, then it would be unreasonable
to compel the accused to surrender before the trial court
H
212 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A and again apply for regular bail. The court must bear in
mind that at times the applicant would approach the
court for grant of anticipatory bail on mere apprehension
of being arrested on accusation of having committed a
non-bailable offence. In fact, the investigating or
8 concerned agency may not otherwise arrest that
applicant who has applied for anticipatory bail but just
because he makes an application before the court and
gets the relief from the court for a limited period and,
thereafter, he has to surrender before the trial court and
C only thereafter his bail application can be considered and
life of anticipatory bail comes to an end. This may lead
to disastrous and unfortunate consequences. [Paras 110
and 111) [257-E-H; 258-A]
7.6 The courts should not impose restrictions on the
D ambit and scope of Section 438 Cr.P.C. which are not
envisaged by the Legislature. The court cannot rewrite
the provision of the statute in the garb of interpreting it.
It is unreasonable to lay down strict, inflexible and rigid
rules for exercise of such discretion by limiting the period
E of which an order under this Section could be granted.
Once the anticipatory bail is granted then the protection
should ordinarily be available till the end of the trial
unless the interim protection by way of the grant of
anticipatory bail is curtailed when the anticipatory bail
F granted by the court is cancelled by the court on finding
fresh material or circumstances or on the ground of
abuse of the indulgence by the accused. [Paras 113, 114
and 117) [258-E-H; 260-G-H; 261-A]
8.1 No inflexible guidelines or straitjacket formula can
G be provided for grant or refusal of anticipatory bail. No
attempt should be made to provide rigid and inflexible
guidelines in this respect because all circumstances and
situations of future cannot be clearly visualized for the
grant or refusal of anticipatory bail. In consonance with
H
SIDDHARAM SATLINGAPPA MHETRE v. STATE OF 213
MAHARASHTRA
the legislative intention the grant or refusal of anticipatory A
bail should necessarily depend on facts and
circumstances of each case. [Para 121] [262-F-G]
8.2 The following factors and parameters can be
taken into consideration while dealing with the B
anticipatory bail:
(i) The nature and gravity of the accusation and the
exact role of the accused must be properly
comprehended before arrest is made;
c
(ii) The antecedents of the applicant including the
fact as to whether the accused has previously
undergone imprisonment on conviction by a Court
in respect of any cognizable offence;
(iii) The possibility of the applicant to flee from justice; D
(iv) The possibility of the accused's likelihood to
repeat similar or the other offences;
(v) Where the accusations have been made only with E
the object of injuring or humiliating the applicant by
arresting him or her;
(vi) Impact of grant of anticipatory bail particularly in
cases of large magnitude affecting a very large
number of people; F
(vii) The courts must evaluate the entire available
material against the accused very carefully. The court
must also clearly comprehend the exact role of the
accused in the case. The cases in which accused is G
implicated with the help of Sections 34 and 149 of the
Penal Code, the court should consider with even
greater care and caution because over implication in
the cases is a matter of common knowledge and
concern; H
214 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A (viii) While considering the prayer for grant of
anticipatory bail, a balance has to be struck between
two factors namely, no prejudice should be caused
to the free, fair and full investigation and there
should be prevention of harassment, humiliation and
B unjustified detention of the accused;
(ix) The court to consider reasonable apprehension
of tampering of the witness or apprehension of threat
to the complainant;
C (x) Frivolity in prosecution should always be
considered and it is only the element of genuineness
that shall have to be considered in the matter of grant
of bail and in the event of there being some doubt
as to the genuineness of the prosecution, in the
D normal course of events, the accused is entitled to
an order of bail. [Para 122) [263-A-H; 264-A-D]
8.3 The arrest should be the last option and it should
be restricted to those exceptional cases where arresting
E the accused is imperative in the facts and circumstances
of that case. The court must carefully examine the entire
available record and particularly the allegations which
have been directly attributed to the accused and these
allegations are corroborated by other material and
F circumstances on record. [Paras 123 and 124) [264-D-F]
8.4 Personal liberty is a very precious fundamental
right and it should be curtailed only when it becomes
imperative according to the peculiar facts and
circumstances of the case. In case, the State considers
G the following suggestions in proper perspective then
perhaps it may not be necessary to curtail the personal
liberty of the accused in a routine manner. These
suggestions which are only illustrative and not
exhaustive are:
H
$1DDHARAM SATLINGAPPA MHETRE v. STATE OF 215
MAHARASHTRA
(1) DireCt the accused to join investigation and only A
when the accused does not co-operate with the
investigating agency, then only the accused be
arrested.
(2) Seize either the passport or such other related
8
documents, such as, the title deeds of properties or
the Fixed Deposit Receipts/Share Certificates of the
accused.
(3) Direct the accused to execute bonds;
c
(4) The accused may be directed to furnish sureties
of number of persons which according to the
prosecution are necessary in view of the facts of the
particular case.
(5) The accused be directed to furnish unde~king D
that he would not visit the place where the witnesses
reside so that the possibility of tampering of evidence
or otherwise influencing the course of justice can be
avoided.
E
(6) Bank accounts be frozen for small duration
during investigation. [Paras 127 and 128) [265-D-H;
266-A-C]
8.5 In case the arrest is imperative, according to the F
facts of the case, in that event, the arresting officer must
clearly record the reasons for the arrest of the accused
before the arrest in the case diary, but in exceptional
cases where it becomes imperative to arrest the accused
immediately, the reasons be recorded in the case diary
immediately after the arrest is made without loss of any G
time so that the court has an opportunity to properly
consider the case for grant or refusal of bail in the light
of reasons recorded by the arresting officer. [Para 129)
[266-D]
H
216 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A 8.6 The exercise of jurisdiction under Section 438
Cr.P.C. is extremely important judicial function of a judge
and must be entrusted to judicial officers with some
experience and good track record. Both individual and
society have vital interest in orders passed by the courts
B in anticipatory bail applications. It is imperative for the
High Courts through its judicial academies to periodically
organize workshops, symposiums, seminars and
lectures by the experts to sensitize judicial officers, police
officers and investigating officers so that they can
c properly comprehend the importance of personal liberty
vis-a-vis social interests. They must learn to maintain fine
balance between the personal liberty and the social
interests. The performance of the judicial officers must be
periodically evaluated on the basis of the cases decided
by them. In case, they have not been able to maintain
0
balance between personal liberty and societal interests,
the lacunae must be pointed out to them and they may
be asked to take corrective measures in future.
Ultimately, the entire discretion of grant or refusal of bail
has to be left to the judicial officers and all concerned
E must ensure that grant or refusal of bail is considered
basically on the facts and circumstances of each case.
[Paras 130, 131 and 132) (266-E-H; 267-A-B]
8.7 The discretion vested in the court in all matters
F should be exercised with care and circumspection
depending upon the facts and circumstances justifying
its exercise. Similarly, the discretion vested with the court
under Section 438 Cr.P.C. should also be exercised with
caution and prudence. It is unnecessary to travel beyond
G it and subject to the wide power and discretion conferred
by the legislature to a rigorous code of self-imposed
limitations. [Para 137] (268-E-F]
Joginder Kumar v. State of UP. and Ors. (1994) 4 SCC
260 - referred to.
H
SIDDHARAM SATLINGAPPA MHETRE v. STATE OF 217
MAHARASHTRA
9.1 The judgments and orders in Salauddin A
Abdulsamad Shaikh v. State of Maharashtra; K. L. Verma v.
State and Anr.; Adri Dharan Das v. State of West Bengal;
Sunita Devi v. State of Bihar and Anr. and; Naresh Kumar
Yadav v Ravindra Kumar case are clearly contrary to the
law declared by the Constitution Bench of this Court in B
Sibbia's case. These judgments are also contrary to the
legislative intention. The court would not be justified in
re-writing Section 438 Cr.P.C. [Para 138) [268-G]
9.2 The analysis of English and Indian Law clearly C
leads to the irresistible conclusion that not only the
judgment of a larger strength is binding on a judgment
of smaller strength but the judgment of a co-equal
strength is also binding on a Bench of judges of co-equal
strength. In the instant case, the judgments by two or
three judges of this. Court in Salauddin Abdulsamad D
Shaikh v. State of Maharashtra; K. L. Verma v. State and Anr.;
Adri Dharan Das v. State of West Bengal; Sunita Devi v. State
of Bihar and Anr. and; Naresh Kumar Yadav v Ravindra
Kumar case have clearly ignored a Constitution Bench
judgment of this Court in Sibbia's case which has E
comprehensively dealt with all the facets of anticipatory
bail enumerated under Section 438 of Cr.P.C ..
Consequently, the said judgments are per incuriam. [Para
149) [273-D-F]
F
Salauddin Abdulsamad Shaikh v. State of Maharashtra
(1996) 1 SCC 667; K. L. Verma v. State and Anr. (1998) 9
SCC 348; Adri Dharan Das v. State of West Bengal (2005)
4 SCC 303; Sunita Devi v. State of Bihar and Anr. (2005) 1
SCC 608; Naresh Kumar Yadav v Ravindra Kumar (2008) 1 G
sec 632 - per incuriam.
Government of A.P. and Anr. v. 8. Satyanarayana Rao
(dead) by LRs. and Ors. (2000) 4 SCC 262; Union of India v.
Raghubir Singh (1989) 2 SCC 754; Thota Sesharathamma
H
218 SUPREME COURT REPORTS [201 OJ 15 (ADDL.) S.C.R.
A and another v. Thota Manikyamma (Dead) by LRs. and Ors.
(1991) 4 SCC 312; Mst. Karmi v. Amru (1972) 4 SCC 86; R.
Thiruvirkolam v. Presiding Officer and Anr. (1997) 1 SCC 9;
Gujarat Steel Tubes Ltd. v. Mazdoor Sabha (1980) 2 SCC
593; P.H. Kalyani v. Air France (1964) 2 SCR 104; Bharat
B Petroleum Corporation Ltd. v. Mumbai Shramik Sangra and
Ors. (2001) 4 SCC 448; Central Board of Dawoodi Bohra
Community v. State of Maharashtra (2005) 2 SCC 673;
Official Liquidator v. Dayanand and Ors. (2008) 10 SCC 1;
State of Kamataka and Ors. v. Umadevi (3) and Ors. (2006) 4
c SCC 1; Subhash Chandra and Anr. v. Delhi Subordinate
Services Selection Board and Ors. (2009) 15 SCC 458 -
referred to.
Young v. Bristol Aeroplane Company Limited (1994) All
ER 293; Huddersfield Police Authority v. Watson (1947) 2 All
D ER 193 - referred to.
9.3 In case there is no judgment of a Constitution
Bench or larger Bench of binding nature and if the court
doubts the correctness of the judgments by two or three
E judges, then the proper course would be to request
Hon'ble the Chief Justice to refer the matter to a larger
Bench of appropriate strength. [Para 150] [273-G]
Pokar Ram v. State of Rajasthan and Ors. (1985) 2 SCC
F 597; N. Meera Rani v. Government of Tamil Nadu and Anr.
(1989) 4 SCC 418; Vijayalaxmi Cashew Company and Ors.
v. Dy. Commercial Tax Officer and Anr. (1996) 1 SCC 468;
Union of India and Ors. v. K. S. Subramanian (1976) 3 SCC
677; State of U.P. v. Ram Chandra Trivedi (1976) 4 SCC 52;
Palanikumar and Anr. v. State 2007 (4) CTC 1 - referred to.
G
Case Law Reference:
(1980) 2 SCC 565 Referred to Para 119,
149, 151
H
SIDDHARAM SATLINGAPPA MHETRE v. STATE OF 219
MAHARASHTRA
(1985) 2 sec 597 Referred to Para 31 A
(1989) 4 sec 418 Referred to Para 33
(1996) 1 sec 468 Referred to Para 34
(1976) 3 sec 677 Referred to Para 35
B
(1976) 4 sec 52 Referred to Para 35
2007 (4) CTC 1 Referred .to Para 39
AIR 1950 SC 27 Relied on Para 62, 69
c
AIR 1963 SC 1295 Relied on Para 64
(1978) 1 sec 248 Relied on Para 65
(2000) 5 sec 112 Relied on Para 66
(1994) 3 sec 569 Relied on Para 66 D
(1981) 1 sec 608 Relied on Para 69
(1994) 3 sec 394 Relied on Para 70
(1994) 6 sec 260 Relied on Para 71 E
(1986) 3 sec 156 Relied on Para 72
(1980) 3 sec 526 Relied on Para 74
(1987) 1 All ER 940 Referred to Para 78
F
(2002) 1 All ER 1 Referred to Para 78
(1972) S.C.R. 889 Referred to Para 84
(1994) 4 sec 260 Referred to Para 120
G
(2008) 1 sec 632 Referred to Para 136
(1994) All ER 293 Referred to Para 139
(1947) 2 All ER 193 Referred to Para 140
(2000) 4 sec 262 Referred to Para 141 H
220 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A (1989) 2 sec 754 Referred to Para 142
(1991) 4 sec 312 Referred to Para 143
(1972) 4 sec 86 Referred to Para 143
(1997) 1 sec 9 Referred to Para 144
B
(1980) 2 sec 593 Referred to Para 144
(1964) 2 SCR 104 Referred to Para 144
(2001) 4 sec 448 Referred to Para 145
c (2005) 2 sec 673 Referred to Para 146
(2008) 1o sec 1 Referred to Para 147
(2006) 4 sec 1 Referred to Para 147
D (2009) 15 sec 458 Referred to Para 148
(1996) 1 sec 667 Per incuriam Para 149
(1998) 9 sec 348 Per incuriam Para 149
E (2005) 4 sec 303 Per incuriam Para 149
(2005) 1 sec 608 Per incuriam Para 149
(2008) 1 sec 632 Per incuriam Para 149
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
F No. 2271 of 2010.
From the Judgment & Order dated 06.10.2009 of the High
Court of Judicature at Bombay in Criminal Application No.
4465 of 2009.
G
Shanti Bhushan, Mahesh Jethmalani, Naveen Chomal,
Sudhir Halli, A. Raghunath, Pravin Satale, Pranav Badheka,
Priyal Sardha, Rajiv Shankar Dvivedi, Arun R. Pednekar,
Sanjay Kharde, Shankar Chillarge, Asha Gopalan Nair, Rajeev
K. Dubey, Kamlendra Mishra for the appearing parties.
H
SIDDHARAM SATLINGAPPA MHETRE v. STATE OF 221
MAHARASHTRA
The Judgment of the Court was delivered by A
DALVEER BHANDARI, J. 1. Leave granted.
2. This appeal involves issues of great public importance
pertaining to the importance of individual's personal liberty and
the society's interest. 8
3. The society has a vital interest in grant or refusal of bail
because every criminal offence is the offence against the State.
The order granting or refusing bail must reflect perfect balance
between the conflicting interests, namely, sanctity of individual C
liberty and the interest of the society. The law of bails dovetails
two conflicting interests namely, on the one hand, the
requirements of shielding the society from the hazards of those
committing crimes and potentiality of repeating the same crime
while on bail and on the other hand absolute adherence of the o
fundamental principle of criminal jurisprudence regarding
presumption of innocence of an accused until he is found guilty
and the sanctity of individual liberty.
4. Brief facts which are necessary to dispose of this appeal
are recapitulated as under: E
The appellant, who belongs to the Indian National Congress
party {for short 'Congress party') is the alleged accused in this
case. The case of the prosecution, as disclosed in the First
Information Report (for short 'FIR'), is that Sidramappa Patil F
was contesting election of the State assembly on behalf of the
Bhartiya Janata Party (for short 'BJP'). In the FIR, it is
incorporated that Baburao Patil, Prakash Patil, Mahadev Patil,
Mallikarjun Patil, Apparao Patil, Yeshwant Patil were supporters
of the Congress and so also the supporters of the appellant G
Siddharam Mhetre and opposed to the BJP candidate.
5. On 26.9.2009, around 6.00 p.m. in the evening,
Sidramappa Patil of BJP came to the village to meet his party
workers. At that juncture, Shrimant lshwarappa Kore,
H
222 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A Bhimashankar lshwarappa Kore, Kallapa Gaddi, Sangappa
Gaddi, Gafur Patil, Layappa Gaddi, Mahadev Kore, Suresh
Gaddi, Suresh Zhalaki, Ankalgi, Sarpanch of village Shivmurti
Vijapure met Sidramappa Patil and thereafter went to worship
and pray at Layavva Devi's temple. After worshipping the
B Goddess when they came out to the assembly hall of the
temple, these aforementioned political opponents namely,
Baburao Patil, Prakash Patil, Gurunath Patil, Shrishail Patil,
Mahadev Patil, Mallikarjun Patil, Annarao @ Pintu Patil,
Hanumant Patil, Tammarao Bassappa Patil, Apparao Patil,
c Mallaya Swami, Sidhappa Patil, Shankar Mhetre, Usman
Sheikh, Jagdev Patil, Omsiddha Pujari, Panchappa Patil,
Mahesh Hattargi, Siddhappa Birajdar, Santosh Arwat,
Sangayya Swami, Anandappa Birajdar, Sharanappa Birajdar,
Shailesh Chougule, Ravi Patil, Amrutling Koshti, Ramesh Patil
and Chandrakant Hattargi suddenly came rushing in their
0
direction and loudly shouted, "why have you come to our village?
Have you come here to oppose our Mhetre Saheb? They asked
them to go away and shouted Mhetre Saheb Ki Jai."
6. Baburao Patil and Prakash Patil from the
E aforementioned group fired from their pistols in order to kill
Sidramappa Patil and the other workers of the BJP. Shima
Shankar Kore was hit by the bullet on his head and died on
the spot. Sangappa Gaddi, Shivmurti Vjapure, Jagdev Patil,
Layappa Patil, Tammaro Patil were also assaulted. It is further
F mentioned in the FIR that about eight days ago, the appellant
Siddharam Mhetre and his brother Shankar Mhetre had gone
to the village and talked to the abovementioned party workers
and told them that, "if anybody says anything to you, then you
tell me. I will send my men within five minutes. You beat
G anybody. Do whatever."
7. According to the prosecution, the appellant along with
his brother instigated their party workers which led to killing of
Bhima Shanker Kora. It may be relevant to mention that the
alleged incident took place after eight days of the alleged
H incident of instigation.
SIDDHARAM SATLINGAPPA MHETRE v. STATE OF 223
MAHARASHTRA [DALVEER BHANDARI, J.]
8. The law relating to bail is contained in sections 436 to A
450 of chapter XXXlll of the Code of Criminal Procedure, 1973.
Section 436 deals with situation, in what kind of cases bail
should be granted. Section 436 deals with the situation when
bail may be granted in case of a bailable offence. Section 439
deals with the special powers of the High Court or the Court of B
Sessions regarding grant of bail. Under sections 437 and 439
bail is granted when the accused or the detenu is in jail or
under detention.
9. The provision of anticipatory bail was introduced for the C
first time in the Code of Criminal Procedure in 1973.
10. Section 438 of the Code of Criminal Procedure, 1973
reads as under:
"438. Direction for grant of bail to person apprehending 0
arrest.- (1) Where any person has reason to believe that
he may be arrested on 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 that
in the event of such arrest he shall be released on bail; and
E
that Court may, after taking into consideration, inter a/ia,
the following factors, namely:-
(i) the nature and gravity of the accusation;
(ii) the antecedents of the applicant including the fact F
as to whether he has previously undergone
imprisonment on conviction by a Court in respect
of any cognizable offence;
(iii) the possibility of the applicant to flee from justice;
and G
(iv) where the accusation has been made with the
object of injuring or humiliating the applicant by
having him so arrested,
H
224 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A either reject the application forthwith or issue an interim order
for the grant of anticipatory bail:
Provided that, where the High Court or, as the case
may be, the Court of Session, has not passed any interim
order under this sub-section or has rejected the application
B
for grant of anticipatory bail, it shall be open to an officer
in-charge of a police station to arrest, without warrant, the
applicant on the basis of the accusation apprehended in
such application.
c (1-A) Where the Court grants an interim order under
sub-section (1 ), it shall forthwith cause a notice being not
less than seven days notice, together with a copy of such
order to be served on the Public Prosecutor and the
Superintendent of Police, with a view to give the Public
D Prosecutor a reasonable opportunity of being heard when
the application shall be finally heard by the Court.
(1-B) The presence of the applicant seeking
anticipatory bail shall be obligatory at the time of final
hearing of the application and passing of final order by the
E
Court, if on an application made to it by the Public
Prosecutor, the Court considers such presence necessary
in the interest of justice.
(2) When the High Court or the Court of Session
F makes a direction under sub- section (1), it may include
such conditions in such directions in the light of the facts
of the particular case, as it may thinks fit, including -
(i) a condition that the person shall make himself
G available for interrogation by a police officer as and
when required;
(ii) a condition that the person shall not, directly or
indirectly,- make any inducement, threat or promise
to any person acquainted with the facts of the case
H
SIDDHARAM SATLINGAPPA MHETRE v. STATE OF 225
MAHARASHTRA [DALVEER BHANDARI, J.]
so as to dissuade him from disclosing such facts A
to the Court or to any police officer;
(iii) a condition that the person shall not leave India
without the previous permission of the Court;
(iv) such other condition as may be imposed under sub- 8
section (3) of section 437, as if the bail were
granted under that section.
(3) If such person is thereafter arrested without warrant by
an officer in charge of a police station on such accusation, C
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 Magistrate taking cognizance of
such offence decides that a warrant should issue in the first
instance against that person, he shall issue a bailable o
warrant in conformity with the direction of the Court under
sub-section (1 )."
Why was the provision of anticipatory bail introduced?
- Historical perspective
E
11. The Code of Criminal Procedure, 1898 did not contain
any specific provision of anticipatory bail. Under the old Code,
there was a sharp difference of opinion amongst the various
High Courts on the question as to whether the courts had an
inherent power to pass an order of bail in anticipation of arrest, F
the preponderance of view being that it did not have such
power.
12. The Law Commission of India, in its 41st Report dated
September 24, 1969 pointed out the necessity of introducing
a provision in the Code of Criminal Procedure enabling the High G
Court and the Court of Sessions to grant "anticipatory bail". It
observed in para 39.9 of its report (Volume I) and the same is
set out as under:
'The suggestion for directing the release of a person on H
226 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A bail prior to his arrest (commonly known as "anticipatory
bail") was carefully considered by us. Though there is a
conflict of judicial opinion about the power of a court to
grant anticipatory bail, the majority view is that there is no
such power under the existing provisions of the Code. The
B necessity for granting anticipatory bail arises mainly
because sometimes influential persons try to implicate
their rivals in false cases for the purpose of disgracing
them or for other purposes by getting them detained in jail
for some days. In recent times, with the accentuation of
c political rivalry, this tendency is showing signs of steady
increase. Apart from false cases, where there are
reasonable grounds for holding that a person accused of
an offence is not likely to abscond, or otherwise misuse
his liberty while on bail, there seems no justification to
require him first to submit to custody, remain in prison for
D
some days and then apply for bail."
The Law commission recommended acceptance of the
suggestion.
E 13. The Law Commission in para 31 of its 48th Report
(July, 1972) made the following comments on the aforesaid
clause:
"The Bill introduces a provision for the grant of
anticipatory bail. This is substantially in accordance with
F the 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
H should make it clear that the direction can be issued only
SIDDHARAM SATLINGAPPA MHETRE v. STATE OF 227
MAHARASHTRA [DALVEER BHANDARI, 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
14. Police custody is an inevitable concomitant of arrest
for non-bailable offences. The concept of anticipatory bail is that
a person who apprehends his arrest in a non-bailable case can
apply for grant of bail to the Court of Sessions or to the High
Court before the arrest. c
Scope and ambit of Section 438 Cr.P.C.
15. It is apparent from the Statement of Objects and
Reasons for introducing section 438 in the Code of Criminal
0
Procedure, 1973 that it was felt imperative to evolve a device
by which an alleged accused is not compelled to face ignominy
and disgrace at the instance of influential people who try to
implicate their rivals in false cases.
16. The Code of Criminal Procedure, 1898 did not contain E
any specific provision corresponding to the present section 438
Cr.P.C. The only two clear provisions of law by which bail could
be granted were sections 437 and 439 of the Code. Section
438 was incorporated in the Code of Criminal Procedure, 1973
for the first time. F
17. It is clear from the Statement of Objects and Reasons
that the purpose of incorporating Section 438 in the Cr.P.C. was
to recognize the importance of personal liberty and freedom in
a free and democratic country. When we carefully analyze this
section, the wisdom of the legislature becomes quite evident G
and clear that the legislature was keen to ensure respect for
the personal liberty and also pressed in service the age-old
principle that an individual is presumed to be innocent till he is
found guilty by the court.
H
228 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A 18. The High Court in the impugned judgment has declined
to grant anticipatory bail to the appellant and aggrieved by the
·said order, the appellant has approached this Court by filing
this appeal.
19. Mr. Shanti Bhushan, learned senior counsel appearing
8
for the appellant submitted that the High Court has gravely
erred in declining the anticipatory bail to the appellant. He
submitted that section 438 Cr.P.C. was incorporated because
sometime influential people try to implicate their rivals in false
cases for the purpose of disgracing them or for other purposes
C by getting them detained in jail for some days. He pointed out
that in recent times, with the accentuation of political rivalry, this
tendency is showing signs of steady increase.
20. Mr. Bhushan submitted that the appellant has been
D implicated in a false case and apart from that he has already
joined the investigation and he is not likely to abscond, or
otherwise misuse the liberty while on bail, therefore, there was
no justification to decline anticipatory bail to the appellant.
21. Mr. Bhushan also submitted that the FIR in this case
E refers to an incident which had taken place on the instigation
of the appellant about eight days ago. According to him, proper
analysis of the averments in the FIR leads to irresistible
conclusion that the entire prosecution story seems to be a cock
and bull story and no reliance can be placed on such a
F concocted version.
22. Mr. Bhushan contended that the personal liberty is the
most important fundamental right guaranteed by the
Constitution. He also submitted that it is the fundamental
G principle of criminal jurisprudence that every individual is
presumed to be innocent till he or she is found guilty. He further
submitted that on proper analysis of section 438 Cr.P .C. the
legislative wisdom becomes quite evident that the legislature
wanted to preserve and protect personal liberty and give
H
SIDDHARAM SATLINGAPPA MHETRE v. STATE OF 229
MAHARASHTRA [DALVEER BHANDARI, J.]
impetus to the age-old principle that every person is presumed A
to be innocent till he is found guilty by the court.
23. Mr. Bhushan also submitted that an order of
anticipatory bail does not in any way, directly or indirectly, take
away from the police their power and right to fully investigate 8
into charges made against the appellant. He further submitted
that when the case is under investigation, the usual anxiety of
the investigating agency is to ensure that the alleged accused
should fully cooperate with them and should be available as and
when they require him. In the instant case, when the appellant C
has already joined the investigation and is fully cooperating with
the investigating agency then it is difficult to comprehend why
the respondent is insistent for custodial interrogation of the
appellant? According to the appellant, in the instant case, the
investigating agency should not have a slightest doubt that the
appellant would not be available to the investigating agency for D
further investigation particularly when he has already joined
investigation and is fully cooperating with the investigating
agency.
24. Mr. Bhushan also submitted that according to the E
General Clauses Act, 1897 the court which grants the bail also
has the power to cancel it. The grant of bail is an interim order.
The court can always review its decision according to the
subsequent facts, circumstances and new material. Mr.
Bhushan also submitted that the exercise of grant, refusal and F
cancellation of bail can be undertaken by the court either at the
instance of the accused or a public prosecutor or a complainant
on finding fresh material and new circumstances at any point
of time. Even the appellant's reluctance in not fully cooperating
with the investigation could be a ground for cancellation of bail. G
25. Mr. Bhushan submitted that a plain reading of the
section 438 Cr.P.C. clearly reveals that the legislature has not
placed any fetters on the court. In other words, the legislature
has not circumscribed court's discretion in any manner while
granting anticipatory bail, therefore, the court should not limit H
230 SUPREME COURT REPORTS (2010) 15 (ADDL.) S.C.R.
A the order only for a specified period till the charge-sheet is filed
and thereafter compel the accused to surrender and ask for
regular bail under section 439 Cr.P.C., meaning thereby the
legislature has not envisaged that the life of the anticipatory bail
would only last till the charge-sheeit is filed. Mr. Bhushan
B submitted that when no embargo has been placed by the
legislature then this court in some of its orders was not justified
in placing this embargo.
26. Mr. Bhushan submitted that the discretion which has
been granted by the legislature cannot and should not be
C curtailed by interpreting the provisions contrary to the legislative
intention. The courts' discretion in grant or refusal of the
anticipatory bail cannot be diluted by interpreting the provisions
against the legislative intention. He submitted that the life is
never static and every situation has to be assessed and
D evaluated in the context of emerging concerns as and when it
arises. It is difficult to visualize or anticipate all kinds of problems
and situations which may arise in future.
Law has been settled by an authoritative pronouncement
E of the Supreme Court
27. The Constitution Bench of this Court in Gurbaksh Singh
Sibbia and Others v. State of Punjab (1980) 2 SCC 565 had
an occasion to comprehensively deal with the scope and ambit
F of the concept of anticipatory bail. Section 438 Cr.P.C. is an
extraordinary provision where the accused who apprehends his/
her arrest on accusation of having committed a non-bailable
offence can be granted bail in anticipation of arrest. The
Constitution Bench's relevant observations are set out as
under:
G
" ........ A wise exercise of judicial power inevitably takes
care of the evil consequences which are likely to flow out
of its intemperate use. Every kind of judicial discretion,
whatever may be the nature of the matter in regard to which
H it is required to be exercised, has to be used with due care
SIDDHARAM SATLINGAPPA MHETRE v. STATE OF 231
MAHARASHTRA [DALVEER BHANDARI, J.]
and caution. In fact, an awareness of the context in which A
the discretion is required to be exercised and of the
reasonably foreseeable consequences of its use, is the
hall mark of a prudent exercise of judicial discretion. One
ought not to make a bugbear of the power to grant
anticipatory bail". B
28. Mr. Bhushan referred to a Constitution Bench judgment
in Sibbia's case (supra) to strengthen his argument that no such
embargo has been placed by the said judgment of the
Constitution Bench. He placed heavy reliance on para 15 of C
Sibbia's case (supra}, which reads as under:
"15. 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 D
so wisely conferred upon the courts, by devising a formula
which will confine the 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 E
an imperfect awareness of the needs of new situations.
Life is never static and every situation has to be assessed
in the context of emerging concerns as and when it arises.
Therefore, even if we were to frame a 'Code for the grant
of anticipatory bail', which really is the business of the F
legislature, it can at best furnish broad guide-lines and
cannot compel blind adherence. In which case to grant bail
and in which to refuse it is, in 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 G
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 thinks fit". The concern of the courts generally is to
preserve their discretion without meaning to abuse it. It will
232 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A be strange if we exhibit concern to stultify the discretion
conferred upon the courts by law."
29. Mr. Bhushan submitted that the Constitution Bench in
Sibbia's case (supra) also mentioned that "we see no valid
reason for rewriting Section 438 with a view, not to expanding
8
the scope and ambit of the 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
C the 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".
D
30. Mr. Bhushan submitted that the court's orders in some
cases that anticipatory bail is granted till the charge-sheet is
filed and thereafter the accused has to surrender and seek bail
application under section 439 Cr.P.C. is neither envisaged by
E the provisions of the Act nor is in consonance with the law
declared by a Constitution Bench in Sibbia's case (supra) nor
it is in conformity with the fundamental principles of criminal
jurisprudence that accused is considered to be innocent till he
is found guilty nor in consonance with the provisions of the
F Constitution where individual's liberty in a democratic society
is considered sacrosanct.
31. Mr. Mahesh Jethmalani, learned senior counsel
appearing for respondent no. 2, submitted that looking to the
facts and circumstances of this case, the High Court was
G justified in declining the anticipatory bail to the appellant. He
submitted that the anticipatory bail ought to be granted in rarest
of rare cases where the nature of offence is not very serious.
He placed reliance on the case of Pokar Ram -v. State of
Rajasthan and Others (1985) 2 SCC 597 and submitted that
H in murder cases custodial interrogation is of paramount
SIDDHARAM SATLINGAPPA MHETRE v. STATE OF 233
MAHARASHTRA [DALVEER BHANDARI, J.]
importance particularly when no eye witness account is A
available.
32. Mr. Jethmalani fairly submitted that the practice of
passing orders of anticipatory bail operative for a few days and
directing the accused to surrender before the Magistrate and B
apply for regular bail are contrary to the law laid down in
Sibbia's case (supra). The decisions of this Court in Salauddin
Abdulsamad Shaikh v. State of Maharashtra (1996) 1 SCC
667, K. L. Verma v. State and Another (1998) 9 ~CC 348, Adri
Dharan Das v. State of West Bengal (2005) 4 SCC 303 and C
Sunita Devi v. State of Bihar and Another (2005) 1 SCC 608
are in conflict with the above decision of the Constitution Bench
in Sibbia's case (supra). He submitted that all these orders
which are contrary to the clear legislative intention of law laid
down in Sibbia's case (supra) are per incuriam. He also
submitted that in case the conflict between the two views is D
irreconcilable, the court is bound to follow the judgment of the
Constitution Bench over the subsequent decisions of Benches
of lesser strength.
33. He placed reliance on N. Meera Rani v. Government E
of Tamil Nadu and Another (1989) 4 sec 418 wherein it was
perceived that there was a clear conflict between the judgment
of the Constitution Bench and subsequent decisions of
Benches of lesser strength. The Court ruled that the dictum in
the judgment of the Constitution Bench has to be preferred over F
the subsequent decisions of the Bench of lesser strength. The
Court observed thus:
"....... All subsequent decisions which are cited have to be
read in the light of the Constitution Bench decision since
they are decisions by Benches comprising of lesser G
number of judges. It is obvious that none of these
subsequent decisions could have intended taking a view
contrary to that of the Constitution bench in Rameshwar
Shaw's case (1964) 4 SCR 921"
H
234 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A 34. He placed reliance on another judgment of this Court
in Vijayalaxmi Cashew Company and Others v. Dy.
Commercial Tax Officer and Another (1996) 1 SCC 468. This
Court held as under:
" ........ It is not possible to uphold the contention that
B
perception of the Supreme Court, as will appear from the
later judgments, has changed in this regard. A judgment
of a Five Judge Bench, which has not been doubted by
any later judgment of the Supreme Court cannot be treated
as overruled by implication."
c
35. He also placed reliance on Union of India and Others
v. K. S. Subramanian (1976) 3 SCC 677 and State of U.P. v.
Ram Chandra Trivedi (1976) 4 SCC 52 and submitted that in
case of conflict, the High Court has to prefer the decision of a
D larger Bench to that of a smaller Bench.
36. Mr. Jethmalani submitted that not only the decision in
Sibbia's case (supra) must be followed on account of the larger
strength of the Bench that delivered it but the subsequent
E decisions must be held to be per incuriam and hence not
binding since they have not taken into account the ratio of the
judgment of the Constitution Bench.
37. He further submitted that as per the doctrine of 'per
incuriam', any judgment which has been passed in ignorance
F of or without considering a statutory provision or a binding
precedent is not good law and the same ought to be ignored.
A perusal of the judgments in Salauddin Abdulsamad Shaikh
v. State of Maharashtra, K. L Verma v. State and Another,
Adri Dharan Das v. State of West Bengal and Sunita Devi v.
G State of Bihar and Another (supra) indicates that none of these
judgments have considered para 42 of Sibbia's case (supra)
in proper perspective. According to Mr. Jethmalani, all
subsequent decisions which have been cited above have to be
read in the light of the Constitution Bench's decision in Sibbia's
H case (supra) since they are decisions of Benches comprised
SIDDHARAM SATLINGAPPA MHETRE v. STATE OF 235
MAHARASHTRA [DALVEER BHANDARI, J.]
of lesser number of judges. According to him, none of these A
subsequent decisions could be intended taking a view contrary
to that of the Constitution Bench in Sibbia's case (supra).
38. Thus, the law laid down in para 42 by the Constitution
Bench that the normal rule is not to limit operation of the order B
of anticipatory bail, was not taken into account by the courts
passing the subsequent judgments. The observations made by
the courts in the subsequent judgments have been made in
ignorance of and without considering the law laid down in para
42 which was binding on them. In these circumstances, the C
observations made in the subsequent judgments to the effect
that anticipatory bail should be for a limited period of time, must
be construed to be per incuriam and the decision of the
Constitution Bench preferred.
39. He further submitted that the said issue came up for D
consideration before the Madras High Court reported in
Palanikumar and Another v. State 2007 (4) CTC 1 wherein
after discussing all the judgments of this court on the issue, the
court held that the subsequent judgments were in conflict with
the decision of the Constitution Bench in Sibbia's case (supra) E
and in accordance with the law of precedents, the judgment of
the Constitution Bench is biding on all courts and the ratio of
that judgment has to be applicable for all judgments decided
by the Benches of same or smaller combinations. In the said
judgment of Sibbia's case (supra) it was directed that the F
anticipatory bail should not be limited in period of time.
40. We have heard the learned counsel for the parties at
great length and perused the written submissions filed by the
learned counsel for the parties.
G
Relevance and importance of personal liberty
41. All human beings are born with some unalienable rights
like life, liberty and pursuit of happiness. The importance of
these natural rights can be found in the fact that these are H
236 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A fundamental for their proper existence and no other right can
be enjoyed without the presence of right to life and liberty.
42. Life bereft of liberty would be without honour and dignity
and it would lose all significance and meaning and the life itself
would not be worth living. That is why "liberty" is called the very
8
quintessence of a civilized existence.
43. Origin of "liberty"' can be traced in the ancient Greek
civilization. The Greeks distinguished between the liberty of the
group and the liberty of the individual. In 431 B.C., an Athenian
C statesman described that the concept of liberty was the
outcome of two notions, firstly, protection of group from attack
and secondly, the ambition of the group to realize itself as fully
as possible through the self-realization of the individual by way
of human reason. Greeks assigned the duty of protecting their
D liberties to the State. According to Aristotle, as the state was
a means to fulfil certain fundamental needs of human nature
and was a means for development of individuals' personality
in association of fellow citizens so it was natural and necessary
to man. Plato found his "republic" as the best source for the
E achievement of the self-realization of the people.
44. Chambers' Twentieth Century Dictionary defines
"liberty" as "Freedom to do as one pleases, the unrestrained
employment of natural rights, power of free chance, privileges,
exemption, relaxation of restraint, the bounds within which
F certain privileges are enjoyed, freedom of speech and action
beyond ordinary civility".
45. It is very difficult to define the "liberty". It has many
facets and meanings. The philosophers and moralists have
G praised freedom and liberty but this term is difficult to define
because it does not resist any interpretation. The term "liberty"
may be defined as the affirmation by an individual or group of
his or its own essence. It needs the presence of three factors,
firstly, harmonious balance of personality, secondly, the
H absence of restraint up0n the exercise of that affirmation and
. SIDDHARAM SATLINGAPPA MHETRE v: STATE OF 237
MAHARASHTRA [DALVEER BHANDARI, J.]
thirdly, organization of opportunities for the exercise of a A
continuous initiative.
46. "Liberty" may be defined as a power of acting
according to the determinations of the will. According to Harold
Laski, liberty was essentially an absence of restraints and John
B
Stuard Mill viewed that "all restraint'', qua restraint is an evil". In
the words of Jonathon Edwards, the meaning of "liberty" and
freedom is:
"Power, opportunity or advantage that any one has to do
as he pleases, or, in other words, his being free from C
hindrance or impediment in the way of doing, or
conducting in any respect, as he wills."
47. It can be found that "liberty" generally means the
prevention of restraints and providing such opportunities, the
0
denial of which would result in frustration and ultimately disorder.
Restraints on man's liberty are laid down by power used through
absolute discretion, which when used in this manner brings an
end to "liberty" and freedom is lost At the same time "liberty"
without restraints would mean liberty won by one and lost by
another. So "liberty" means doing of anything one desires but E
subject to the desire of others.
48. As John E.E.D. in his monograph Action on "Essays
on Freedom and Power" wrote that Liberty is one of the most
essential requirements of the modern man. It is said to be the F
delicate fruit of a mature civilization.
49. A distinguished former Attorney General for India, M.C.
Setalvad in his treatise "War and Civil Liberties" observed that
the French Convention stipulates common happiness as the G
end of the society, whereas Bentham postulates the greatest
happiness of the greatest number as the end of law. Article 19
of the Indian Constitution averts to freedom and it enumerates
certain rights regarding individual freedom. These rights are
vital and most important freedoms which lie at the very root of
liberty. H
238 SUPREME COURT REPORTS [2010) 15 (ADDL.) S.C.R.
A 50. He further observed that the concept of civil liberty is
essentially rooted in the philosophy of individualism. According
to this doctrine, the highest development of the individual and
the enrichment of his personality are the true function and end
of the state. It is only when the individual has reached the highest
s state of perfection and evolved what is best in him that society
and the state can reach their goal of perfection. In brief,
according to this doctrine, the state exists mainly, if not solely,
for the purpose of affording the individual freedom and
assistance for the attainment of his growth and perfection. The
c state exists for the benefit of the individual.
51. Mr. Setalvad in the same treatise further observed that
it is also true that the individual cannot attain the highest in him
unless he is in possession of certain essential liberties which
leave him free as it were to breathe and expand. According to
. D Justice Holmes, these liberties are the indispensable conditions
of a free society. The justification of the existence of such a state
can only be the advancement of the interests of the individuals
who compose it and who are its members. Therefore, in a
properly constituted democratic state, there cannot be a conflict
E between the interests of the citizens and those of the state. The
harmony, if not the identity, of the interests of the state and the
individual, is the fundamental basis of the modern Democratic
National State. And, yet the existence of the state and all
government and even all law must mean in a measure the
F curtailment of the liberty of the individual. But such a surrender
and curtailment of his liberty is essential in the interests of the
citizens of the State. The individuals composing the state must,
in their own interests and in order that they may be assured the
existence of conditions in which they can, with a reasonable
G amount of freedom, carry on their other activities, endow those
in authority over them to make laws and regulations and adopt
measures which impose certain restrictions on the activities of
the individuals.
52. Harold J. Laski in his monumental work in "Liberty in
H
SIDDHARAM SATLINGAPPA MHETRE v. STATE OF 239
MAHARASHTRA [DALVEER BHANDARI, J.)
the Modern State" observed that liberty always demands a A
limitation on political authority. Power as such when uncontrolled
is always the natural enemy of freedom.
53. Roscoe Pound, an eminent and one of the greatest
American Law Professors aptly observed in his book "The B
Development of Constitutional Guarantee of Liberty" that
whatever, 'liberty' may mean today, the liberty is guaranteed by
our bills of rights, "is a reservation to the individual of certain
fundamental reasonable expectations involved in life in civilized
society and a freedom from arbitrary and unreasonable
exercise of the power and authority of those who are designated C
or chosen in a politically organized society to adjust that society
to individuals."
54. Blackstone in "Commentaries on the Laws of England",
Vol.I, p.134 aptly observed that "Personal liberty consists in the D
power of locomotion, of changing situation or moving one's
person to whatsoever place one's own inclination may direct,
without imprisonment or restraint unless by due process of law''
55. According to Dicey, a distinguished English author of
the Constitutional Law in his treatise on Constitutional Law E
observed that, "Personal liberty, as understood in England,
means in substance a person's right not to be subjected to
imprisonment, arrest, or other physical coercion in any manner
that does not admit of legal justification." [Dicey on
Constitutional Law, 9th Edn., pp.207-08). According to him, it F
is the negative right of not being subjected to any form of
physical restraint or coercion that constitutes the essence of
personal liberty and not mere freedom to move to any part of
the Indian territory. In ordinary language personal liberty means
liberty relating to or concerning the person or body of the G
individual, and personal liberty in this sense is the antithesis of
physical restraint or coercion.
56. Eminent English Judge Lord Alfred Denning observed:
H
240 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A "By personal freedom I mean freedom of every law
abiding citizen to think what he will, to say what he will, and
to go where he will on his lawful occasion without
hindrance from any person .... It must be matched, of
course, with social security by which I mean the peace and
B good order of the community in which we live."
57. Eminent former Judge of this Court, Justice H.R.
Khanna in a speech as published in 2 IJIL, Vol.18 (1978), p.133
observed that "liberty postulates the creation of a climate
wherein there is no suppression of the human spirits, wherein,
C there is no denial of the opportunity for the full growth of human
personality, wherein head is held high and there is no servility
of the human mind or enslavement of the human body".
Right to life and personal liberty under the Constitution
D
58. We deem it appropriate to deal with the concept of
personal liberty under the Indian and other Constitutions.
59. The Fundamental Rights represent the basic values
enriched by the people of this country. The aim behind having
E elementary right of the individual such as the Right to Life and
Liberty is not fulfilled as desired by the framers of the
Constitution. It is to preserve and protect certain basic human
rights against interference by the state. The inclusion of a
Chapter in Constitution is in accordance with the trends of
F modern democratic thought. The object is to ensure the
inviolability of certain essential rights against political
vicissitudes.
60. The framers of the Indian Constitution followed the
G American model in adopting and incorporating the Fundamental
Rights for the people of India. American Constitution provides
that no person shall be deprived of his life, liberty, or property
without due process of law. The due process clause not only
protects the property but also life and liberty, similarly Article
H 21 of the Indian Constitution asserts the importance of Life and
SIDDHARAM SATLINGAPPA MHETRE v. STATE OF 241
MAHARASHTRA [DALVEER BHANDARI, J.]
Liberty. The said Article reads as under:- A
"no person shall be deprived for his life or personal liberty
except according to procedure established by law"
the right secured by Article 21 is available to every citizen or
non-citizen, according to this article, two rights are secured. 8
1. Right to life
2. Right to personal liberty.
61. Life and personal liberty are the most prized C
possessions of an individua.1. The inner urge for freedom is a
natural phenomenon of every human being. Respect for life,
liberty and property is not merely a norm or a policy of the State
but an essential requirement of any civilized society. ·
D
62. This court defined the term "personal liberty"
immediately after the Constitution came in force in India in the
case of A K.. Gopa/an v. The State of Madras, AIR 1950 SC
27. The expression 'personal liberty' has wider as well narrow
meaning. In the wider sense it includes not only immunity from E
arrest and detention but also freedom of speech, association
etc. In the narrow sense, it means immunity from arrest and
detention. The juristic conception of 'personal liberty', when
used the latter sense, is that it consists freedom of movement
and locomotion.
F
63. Mukherjea, J. in the said judgment observed that
'Personal Liberty' means liberty relating to or concerning the
person or body of the individual and it is, in this sense,
antithesis of physical restraint or coercion. 'Personal Liberty'
means a personal right not to be subjected to imprisonment, G
arrest or other physical coercion in any manner that does not
admit of legal justification. This negative right constitutes the
essence of personal liberty. Patanjali Shastri, J. however, said
that whatever may be the generally accepted connotation of the
expression 'personal liberty', it was used in Article 21 in a H
242 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A sense which excludes the freedom dealt with in Article 19.
Thus, the Court gave a narrow interpretation to 'personal
liberty'. This court excluded certain varieties of rights, as
separately mentioned in Article 19, from the purview of
'personal liberty' guaranteed by Art. 21.
B
64. In Kharak Singh v. State of UP. and Others AIR 1963
SC 1295, Subba Rao, J. defined 'personal liberty, as a right
of an individual to be free from restrictions or encroachment on
his person whether these are directly imposed or indirectly
brought about by calculated measure. The court held that
C 'personal liberty' in Article 21 includes all varieties of freedoms
except those included in Article 19.
65. In Maneka Gandhi v. Union of India and Another
(1978) 1 sec 248, this court expanded the scope of the
D expression 'personal liberty' as used in Article 21 of the
Constitution of India. The court rejected the argument that the
expression 'personal liberty' must be so interpreted as to avoid
overlapping between Article 21 and Article 19(1 ). It was
observed: "The expression 'personal liberty' in Article 21 is of
E the widest amplitude and it covers a variety of rights which go
to constitute the personal liberty of a man and some of them
have been raised to the status of distinct fundamental rights and
given additional protection under Article 19." So, the phrase
'personal liberty' is very wide and includes all possible rights
F which go to constitute personal liberty, including those which
are mentioned in Article 19.
66. Right to life is one of the basic human right and not
even the State has the authority to violate that right. [State of
A.P. v. Challa Ramakrishna Reddy and Others (2000) 5 SCC
G 712).
67. Article 21 is a declaration of deep faith and belief in
human rights. In this pattern of guarantee woven in Chapter Ill
of this Constitution, personal liberty of man is at root of Article
H 21 and each expression used in this Article enhances human
SIDDHARAM SATLINGAPPA MHETRE v. STATE OF 243
MAHARASHTRA [DALVEER BHANDARI, J.]
dignity and values. It lays foundation for a society where rule of A
law has primary and not arbitrary or capricious exercise of
power. [Kartar Singh v. State of Punjab and Others (1994) 3
sec 569].
68. While examining the ambit, scope and content of the B
expression "personal liberty" in the said case, it was held that
the term is used in this Article as a compendious term to
include within itself all varieties of rights which goes to make
up the "personal liberties" or man other than those dealt within
several clauses of Article 19(1). While Article 19(1) deals with
particular species or attributes of that freedom, "personal liberty" C·
in Article 21 takes on and comprises the residue.
69. The early approach to Article 21 which guarantees right
to life and personal liberty was circumscribed by literal
interpretation in A.K. Gopalan (supra). But in course of time, D
the scope of this application of the Article against arbitrary
encroachment by the executives has been expanded by liberal
interpretation of the components of the Article in tune with the
relevant international understanding. Thus protection against
arbitrary privation of "life" no longer means mere protection of E
death, or physical injury, but also an invasion of the right to "live"
with human dignity and would include all these aspects of life
which would go to make a man's life meaningful and worth
living, such as his tradition, culture and heritage. [Francis
Coralie Mullin v. Administrator, Union Territory of Delhi and F
Others (1981) 1 SCC 608]
70. Article 21 has received very liberal interpretation by this
court. It was held: "The right to live with human dignity and same
does not connote continued drudging. It takes within its fold
some process of civilization which makes life worth living and G
expanded concept of life would mean the tradition, culture, and
heritage of the person concerned." [P. Rathinam!Nagbhusan
Patnaik v. Union of India and Another (1994) 3 SCC 394.]
71. The object of Article 21 is to prevent encroachment H
244 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A upon personal liberty in any manner. Article 21 is repository of
all human rights essentially for a person or a citizen. A fruitful
and meaningful life presupposes full of dignity, honour, health
and welfare. In the modern "Welfare Philosophy", it is for the
State to ensure these essentials of life to all its citizens, and if
B possible to non~citizens. While invoking the provisions of Article
21, and by referring to the oft-quoted statement of Joseph
Addision, "Better to die ten thousand deaths than wound my
honour", the Apex court in Khedat Mazdoor Chetana Sangath
v. State of M.P. and Others (1994) 6 SCC 260 posed to itself
c a question "If dignity or honour vanishes what remains of life"?
This is the significance of the Right to Life and Personal Liberty
guaranteed under the Constitution of India in its third part.
72. This court in Central Inland Water Transport
Corporation Ltd. and Another v. Brojo Nath Ganguly and
D Another (1986) 3 SCC 156 observed that the law must respond
and be responsive to the felt and discernible compulsions of
circumstances that would be equitable, fair and justice, .and
unless there is anything to the contrary in the statute, Court must
take cognizance of that fact and act accord!ngly.
E
73. This court remarked that an undertrial prisoner should
not be put in fetters while he is being taken from prison to Court
or back to prison from Court. Steps other than putting him in
fetters will have to be taken to prevent his escape.
F 74. In Prem Shankar Shukla v. Delhi Administration
(1980) 3 sec 526, this court has made following observations:
" ....... The Punjab Police Manual, in so far as it puts the
ordinary Indian beneath the better class breed (para
G 26.21A and 26.22 of Chapter XXVI) is untenable and
arbitrary. Indian humans shall not be dichotomised and the
common run discriminated against regarding handcuffs.
The provisions in para 26.22 that every under-trial who is
accused of a non-bailable offence punishable with more
H than 3 years prison term shall be routinely handcuffed is
SIDDHARAM SATLINGAPPA MHETRE v. STATE OF 245
MAHARASHTRA [DALVEER BHANDARI, J.]
violative of Articles 14, 19 and 21. The nature of the A
accusation is not the criterion. The clear and present
danger of escape breaking out of the police control is the
determinant. And for this there must be clear material, not
glib assumption, record of reasons and judicial oversight
and summary hearing and direction by the court where the B
victim is produced .... Handcuffs are not summary
punishment vicariously imposed at police level, at once
obnoxious and irreversible. Armed escorts, worth the salt,
can overpower any unarmed under-trial and extra guards
can make up exceptional needs. In very special situations, c
the application of irons is not ruled out. The same
reasoning applies to (e) and (f). Why torture the prisoner
because others will demonstrate or attempt his rescue?
The plain law of under-trial custody is thus contrary to the
unedifying escort practice. (Para 31)
0
Even in cases where, in extreme circumstances, handcuffs
have to be put on the prisoner, the escorting authority must
record contemporaneously the reason for doing so.
Otherwise, under Article 21 the procedure will be unfair
and bad in law. The minions of the police establishment E
must make good their security recipes by getting judicial
approval. And, once the court directs that handcuffs shall
be off, no escorting authority can overrule judicial direction.
This is implicit in Article 21 which insists upon fairness,
reasonableness and justice in the very procedure which F
authorities stringent deprivation of life and liberty. (Para 30)
It is implicit in Articles 14 and 19 that when there is no
compulsive need to fetter a person's limbs, it is sadistic,
capricious, despotic and demoralizing to humble a man G
by manacling him. Such arbitrary conduct surely slaps
Article 14 on the face. The minimal freedom of movement
which even a detainee is entitled to under Article 19 cannot
be cut down cruelly by application of handcuffs or other
hoops. It will be unreasonable so to do unless the State is
able to make out that no other practical way of forbidding H
246 SUPREME COURT REPORTS [2010) 15 (ADDL.) S.C.R.
A escape is available, the prisoner being so dangerous and
desperate and the circumstances so hostile to
safekeeping. (Para 23)
Whether handcuffs or other restraint should be imposed
on a prisoner is a matter for the decision of the authority
B
responsible for his custody. But there is room for imposing
supervisory regime over the exercise of that power. One
sector of supervisory jurisdiction could appropriately lie with
the court trying the accused, and it would be desirable for
the custodial authority to inform that court of the
c circumstances in which, and the justification for, imposing
a restraint on the body of the accused. It should be for the
court concerned to work out the modalities of the
procedure requisite for the purpose of enforcing such
control."
D
75. After dealing with the concept of life and liberty under
the Indian Constitution, we would like to have the brief survey
of other countries to ascertain how life and liberty has been
protected in other countries.
E UNITED KINGDOM
76. Life and personal liberty has been given prime
importance in the United Kingdom. It was in 1215 that the
people of England revolted against King John and enforced
F their rights, first time the King had acknowledged that there were
certain rights of the subject could be called Magna Carta 1215.
In 1628 the petition of rights was presented to King Charles-I
which was the 1st step in the transfer of Sovereignty from the
King to Parliament. It was passed as the Bill of Rights 1689.
G
77. In the Magna Carta, it is stated "no free man shall be
taken, or imprisor.ed or disseised or outlawed or banished or
any ways destroyed, nor will the King pass upon him or commit
him to prison, unless by the judgment of his peers or the law of
the land".
H
SIDDHARAM SATLINGAPPA MHETRE v. STATE OF 247
MAHARASHTRA [DALVEER BHANDARI, J.]
78. Right to life is the most fundamental of all human rights A
and any decision affecting human right or which may put an
individual's life at risk must call for the most anxious scrutiny.
See: Bugdaycay v. Secretary of State for the Home
Department (1987) 1 All ER 940. The sanctity of human life is
probably the most fundamental of the human social values. It B
is recognized in all civilized societies and their legal system and
by the internationally recognized statements of human rights.
See: R on the application of Pretty v. Director of Public
Prosecutions (2002) 1 All ER 1.
U.S.A. c
79. The importance of personal liberty is reflected in the
Fifth Amendment to the Constitution of U.S.A. (1791) which
declares as under :-
D
"No person shall be ..... deprived of his life, liberty or
property, without due process of law." (The 'due process'
clause was adopted in s.1 (a) of the Canadian Bill of Rights
Act, 1960. In the Canada Act, 1982, this expression has
been substituted by 'the principles of fundamental justice' E
[s. 7].
80. The Fourteenth Amendment imposes similar limitation
on the State authorities. These two provisions are conveniently
referred to as the 'due process clauses'. Under the above
clauses the American Judiciary claims to declare a law as bad, F
if it is not in accordance with 'due process', even though the
legislation may be within the competence of the Legislature
concerned. Due process is conveniently understood means
procedural regularity and fairness. (Constitutional Interpretation
by Craig R. Ducat, 8th Edn. 2002 p.475.). G
WEST GERMANY
81. Article 2(2) of the West German Constitution (1948)
declares:
H
248 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A "Everyone shall have the right to life and physical
inviolability. The freedom of the individual shall be
inviolable. These rights may be interfered with only on the
basis of the legal order."
Though the freedom of life and liberty guaranteed by the above
8
Article may be restricted, such restriction will be valid only if it
is in conformity with the 'legal order' (or 'pursuant to a law,
according to official translation). Being a basic right, the
freedom guaranteed by Article 2(2) is binding on the legislative,
administrative and judicial organs of the State [Article 1(3)]. This
C gives the individual the rights to challenge the validity of a law
or an executive act violative the freedom of the person by a
constitutional complaint to the Federal Constitutional Court,
under Article 93. Procedural guarantee is given by Articles
103(1) and 104. Article 104(1)-2(2) provides:
D
"(1) The freedom of the individual may be restricted only
on the basis of a formal law and only with due regard to
the forms prescribed therein ......... .
(2) Only the Judge shall decide on the admissibility and
E
continued deprivation of liberty."
82. These provisions correspond to Article 21 of our
Constitution and the court is empowered to set a man to liberty
if it appears that he has been imprisoned without the authority
F of a formal law or in contravention of the procedure prescribed
there.
JAPAN
83. Article XXXI of the Japanese Constitution of 1946 says:
G
"No person shall be deprived of life or liberty nor shall any
other criminal penalty be imposed, except according to
procedure established by law."
H This article is similar to Article 21 of our Constitution save that
SIDDHARAM SATLINGAPPA MHETRE v. STATE OF 249
MAHARASHTRA [DALVEER BHANDARI, J.]
it includes other criminal penalties, such as fine or forfeiture A
within its ambit.
CANADA
84. S. 1 (1) of the Canadian Bill of Rights Act, 1960,
adopted the 'Due Process' Clause from the American B
Constitution. But the difference in the Canadian set-up was due
to the fact that this Act was not a constitutional instrument to
impose a direct limitation on the Legislature but only a statute
for interpretation of Canadian status, which, again, could be
excluded from the purview of the Act of 1960, in particular C
cases, by an express declaration made by the Canadian
Parliament itself (s.2). The result was obvious : The Canadian
Supreme Court in R. v. Curr (1972) S.C.R. 889 held that the
Canadian Court would not import 'substantive reasonableness'
into s.1 (a), because of the unsalutary experience of substantive D
due process in the U.S.A.; and that as to 'procedural
reasonableness', s.1 (a) of the Bill of Rights Act only referred
to 'the legal processes recognized by Parliament and the
Courts in Canada'. The result was that in Canada, the 'due
process clause' lost its utility as an instrument of judicial review E
of legislation and it came to mean practically the same thing
as whatever the Legislature prescribes, - much the same as
'procedure established by law' in Article 21 of the Constitution
of India, as interpreted in AK. Gopalan (supra).
F
BANGADESH
85. Article 32 of the Constitution of Bangladesh, 1972 [3
sew 385] reads as under:
"No person shall be deprived of life or personal liberty save G
in accordance with law."
This provision is similar to Article 21 of the Indian Constitution.
Consequently, unless controlled by some other provision, it
should be interpreted as in India.
H
250 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A PAKISTAN
86. Article 9 Right to life and Liberty. - "Security of Person
: No person shall be deprived of life and liberty save in
accordance with law."
B NEPAL
87. In the 1962 - Constitution of Nepal, there is Article
11 (1) which deals with right to life and liberty which is identical
with Article 21 of the Indian Constitution.
C INTERNATIONAL CHARTERS
88. Universal Declaration, 1948. - Article 3 of the
Universal Declaration says:
o "Everyone has the right to life, liberty and security of
person."
Article 9 provides:
"No one shall be subjected to arbitrary arrest, detention or
E exile."
Cl.10 says:
"Everyone is entitled in full equality to a fair and public
hearing by an independent and impartial tribunal, in the
F
determination of his rights and obligations and of any
criminal charge against him." [As to its legal effect, see M.
v. Organisation Beige, (1972) 45 Inter, LR 446 (447, 451,
et. Sq.)]
G 89. Covenant on Civil and Political Rights -Article 9(1)
of the U.N. 1966, 1966 says:
"Everyone has the right to liberty and security of person.
No one shall be subjected to arbitrary arrest or detention.
No one shall be deprived of his liberty except on such
H
SIDDHARAM SATLINGAPPA MHETRE v. STATE OF 251
MAHARASHTRA [DALVEER BHANDARI, J.]
grounds and in accordance with such procedure as are A
established by law."
90. European Convention on Human Rights, 1950. -
This Convention contains a most elaborate and detailed
codification of the rights and safeguards for the protection of B
life and personal liberty against arbitrary invasion.
91. In every civilized democratic country, liberty is
considered to be the most precious human right of every
person. The Law Commission of India in its 177th Report under
the heading 'Introduction to the doctrine of "arrest" has C
described as follows:
"Liberty is the most precious of all the human rights".
It has been the founding faith of the human race for more
than 200 years. Both the American Declaration of D
Independence, 1776 and the French Declaration of the
Rights of Man and the Citizen, 1789, spoke of liberty being
one of the natural and inalienable rights of man. The
universal declaration of human rights adopted by the
general assembly on United Nations on December 10,
E
1948 contains several articles designed to protect and
promote the liberty of individual. So does the international
covenant on civil and political rights, 1996. Above all,
.Article 21 of the Constitution of India proclaims that no one
shall be deprived of his right to personal liberty except in
F
accordance with the procedure prescribed by law. Even
Article 20(1) & (2) and Article 22 are born out of a concern
for human liberty. As it is often said, "one realizes the value
of liberty only when he is deprived of it." Liberty, along with
equality is the most fundamental of human rights and the
fundamental freedoms guaranteed by the Constitution. Of G
equal importance is the maintenance of peace, law and
order in the society. Unless, there is peace, no real
progress is· possible. Societal peace lends stability and
security to the polity. It provides the necessary conditions
for growth, whether it is in the economic sphere or in the H
252 SUPREME COURT REPORTS (2010] 15 (ADDL.) S.C.R.
A scientific and technological spheres."
92. Just as the Liberty is precious to an individual, so is
the society's interest in maintenance of peace, law and order.
Both are equally important.
B 93. It is a matter of common knowledge that a large number
of undertrials are languishing in jail for a long time even for
allegedly committing very minor offences. This is because
section 438 Cr.P.C. has not been allowed its full play. The
Constitution Bench in Sibbia's case (supra) clearly mentioned
C that section 438 Cr.P.C. is extraordinary because it was
incorporated in the Code of Criminal Procedure, 1973 and
before that other provisions for grant of bail were sections 437
and 439 Cr.P.C. It is not extraordinary in the sense that it should
be invoked only in exceptional or rare cases. Some courts of
D smaller strength have erroneously observed that section 438
Cr.P.C. should be invoked only in exceptional or rare cases.
Those orders are contrary to the law laid down by the judgment
of the Constitution Bench in Sibbia's case (supra). According
to the report of the National Police Commission, the power of
E arrest is grossly abused and clearly violates the personal liberty
of the people, as enshrined under Article 21 of the Constitution,
then the courts need to take serious notice of it. When conviction
rate is admittedly less than 10%, then the police should be slow
in arresting the accused. The courts considering the·bail
F application should try to maintain fine balance between the
societal interest vis-a-vis personal liberty while adhering to the
fundamental principle of criminal jurisprudence that the accused
that the accused is presumed to be innocent till he is found guilty
by the competent court.
G 94. The complaint filed against the accused needs to be
thoroughly examined including the aspect whether the
complainant has filed false or frivolous complaint on earlier
occasion. The court should also examine the fact whether there
is any family dispute between the accused and the complainant
H and the complainant must be clearly told that if the complaint
SIDDHARAM SATLINGAPPA MHETRE v. STATE OF 253
MAHARASHTRA [DALVEER BHANDARI, J.)
is found to be false or frivolous, then strict action will be taken A
against him in accordance with law. If the connivance between
the complainant and the investigating officer is established then
action be taken against the investigating officer in accordance
with law.
B
95. The gravity of charge and exact role of the accused
must be properly comprehended. Before arrest, the arresting
officer must record the valid reasons which have led to the
arrest of the accused in the case diary. In exceptional cases
the reasons could be recorded immediately after the arrest, so C
that while dealing with the bail application, the remarks and
observations of the arresting officer can also be properly
evaluated by the court.
96. It is imperative for the courts to carefully and with
meticulous precision evaluate the facts of the case. The D
discretion must be exercised on the basis of the available
material and the facts of the particular case. In cases where
the court is of the considered view that the accused has joined
investigation and he is fully cooperating with the investigating
agency and is not likely to abscond, in that event, custodial E
interrogation should be avoided.
97. A great ignominy, humiliation and disgrace is attached
to the arrest. Arrest leads to many serious consequences not
only for the accused but for the entire family and at times for
the entire community. Most people do not make any distinction F
between arrest at a pre-conviction stage or post-conviction
stage.
Whether the powers under section 438 Cr.P.C. are
subject to limitation of section 437 Cr.P.C.? G
98. The question which arises for consideration is whether
the powers under section 438 Cr.P.C. are unguided or
uncanalised or are subject to all the limitations of section 437
Cr.P.C.? The Constitution Bench in Sibbia's case (supra) has
H
254 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A clearly observed that there is no justification for reading into
section 438 Cr.P.C. and the limitations mentioned in section
437 Cr.P.C. The Court further observed that the plentitude of
the section must be given its full play. The Constitution Bench
has also observed that the High Court is not right in observing
B that the accused must make out a "special case" for the
exercise of the power to grant anticipatory bail. This virtually,
reduces the salutary power conferred by section 438 Cr.P.C.
to a dead letter. The Court observed that "We do not see why
the provisions of Section 438 Cr P.C. should be suspected as
c containing something volatile or incendiary, which needs to be
handled with the greatest care and caution imaginable."
99. As aptly observed in Sibbia's case (supra) that a wise
exercise of judicial power inevitably takes care of the evil
consequences which are likely to flow out of its intemperate
D use. Every kind of judicial discretion, whatever may be the
nature of the matter in regard to which it is required to be
exercised, has to be used with due care and caution. In fact,
an awareness of the context in which the discretion is required
to be exercised and of the reasonably foreseeable
E consequences of its use, is the hallmark of a prudent exercise
of judicial discretion. One ought not to make a bugbear of the
power to grant anticipatory bail.
100. The Constitution Bench in the same judgment also
F observed that a person seeking anticipatory bail is still a free
man entitled to the presumption of innocence. He is willing to
submit to restraints and conditions on his freedom, by the
acceptance of conditions which the court may deem fit to
impose, in consideration of the assurance that if arrested, he
G shall enlarged on bail.
101. The proper course of action ought to be that after
evaluating the averments and accusation available on the
record if the court is inclined to grant anticipatory bail then an
interim bail be granted and notice be issued to the public
H prosecutor. After hearing the public prosecutor the court may
· SIDDHARAM SATLINGAPPA MHETRE v. STATE OF 255
MAHARASHTRA [DALVEER BHANDARI, J.]
either reject the bail application or confirm the initial order of A
granting bail. The court would certainly be entitled to impose
conditions for the grant of bail. The public prosecutor or
complainant would be at liberty to move the same court for
cancellation or modifying the conditions of bail any time if liberty
granted ~y the court is misused. The bail granted by the court B
should ordinarily be continued till the trial of the case.
102. The order granting anticipatory bail for a limited
duration and thereafter directing the accused to surrender and
apply before a regular bail is contrary to the legislative intention C
and the judgment of the Constitution Bench in Sibbia's case
(supra).
103. It is a settled legal position that the court which grants
the bail also has the power to cancel it. The discretion of grant
or cancellation of bail can be exercised either at the instance D
of the accused, the public prosecutor or the complainant on
finding new material or circumstances at any point of time.
104. The intention of the legislature is quite clear that the
power of grant or refusal of bail is entirely discretionary. The
E
Constitution Bench in Sibbia's case (supra) has clearly stated
that grant and refusal is discretionary and it should depend on
the facts and circumstances of each case. The Constitution ·
Bench in the said case has aptly observed that we must
respect the wisdom of the Legislature entrusting this power to F
the superior courts namely, the High Court and the Court of
Session. The Constitution Bench observed as under:
"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 G
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
recognized over the years, than by divesting them of their H
256 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A 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 grounds that, after all "the legislature in, its wisdom"
has thought it fit to use a particular expression. A
B 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 e(r, they are liable to be corrected."
C GRANT OF BAIL FOR LIMITED PERIOD IS CONTRARY TO
THE LEGISLATIVE INTENTION AND LAW DECLARED BY
THE CONSTITUTION BENCH:
105. The court which grants the bail has the right to cancel
D the bail according to the provisions of the General Clauses Act
but ordinarily after hearing the public prosecutor when the bail
order is confirmed then the benefit of the grant of the bail should
continue till the end of the trial of that case.
E 106. The judgment in Salauddin Abdulsamad Shaikh
(supra) is contrary to legislative intent and the spirit of the very
provisions of the anticipatory bail itself and has resulted in an
artificial and unreasonable restriction on the scope of
enactment contrary to the legislative intention.
F 107. The restriction on the provision of anticipatory bail
under section 438 Cr.P.C. limits the personal liberty of the
accused granted under Article 21 of the constitution. The added
observation is nowhere found in the enactment and bringing in
restrictions which are not found in the enactment is again an
G unreasonable restriction. It would not stand the test of fairness
and reasonableness which is implicit in Article 21 of the
Constitution after the decision in Maneka Gandhi's case
(supra) in which the court observed that in order to meet the
challenge of Article 21 of the Constitution the procedure
H
SIDDHARAM SATLINGAPPA MHETRE v. STATE OF 257
MAHARASHTRA [DALVEER BHANDARI, J.]
established by law for depriving a person of his liberty must be A
fair, just and reasonable.
108. Section 438 Cr.P.C. does not mention anything about
the duration to which a direction for release on bail in the event
of arrest can be granted. The order granting anticipatory bail B
is a direction specifically to release the accused on bail in the
event of his arrest. Once such a direction of anticipatory bail is
executed by the accused and he is released on bail, the
concerned court would be fully justified in imposing conditions
including direction of joining investigation.
c
109. The court does not use the expression 'anticipatory
bail' but it provides for issuance of direction for the release on
bail by the High Court or the Court of Sessions in the event of
arrest. According to the aforesaid judgment of Salauddin's
case, the accused has to surrender before the trial court and D
only thereafter he/she can make prayer for grant of bail by the
trial court. The trial court would release the accused only after
he has surrendered.
110. In pursuance to the order of the Court of Sessions or E
the High Court, once the accused is released on bail by the
trial court, then it would be unreasonable to compel the
accused to surrender before the trial court and again apply for
regular bail.
111. The court must bear in mind that at times the F
applicant would approach the court for grant of anticipatory bail
on mere apprehension of being arrested on accusation of
having committed a non-bailable offence. In fact, the
investigating or concerned agency may not otherwise arrest that
applicant who has applied for anticipatory bail but just because G
he makes an application before the court and gets the relief
from the court for a limited period and thereafter he has to
surrender before the trial court and only thereafter his bail
application can be considered and life of anticipatory bail
comes to an end. This may lead to disastrous and unfortunate H
258 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A consequences. The applicant who may not have otherwise lost
his liberty loses it because he chose to file application of
anticipatory bail on mere apprehension of being arrested on
accusation of having committed a non-bailable offence. No
arrest should be made because it is lawful for the police officer
B to do so. The existence of power to arrest is one thing and the
justification for the exercise of it is quite another. The police
officer must be able to justify the arrest apart from his power
to do so. This finding of the said judgment (supra) is contrary
to the legislative intention and law which has been declared by
c a Constitution Bench of this court in Sibbia's case (supra).
112. The validity of the restrictions imposed by the Apex
Court, namely, that the accused released on anticipatory bail
must submit himself to custody and only thereafter can apply
for regular bail. This is contrary to the basic intention and spirit
D of section 438 Cr.P.C. It is also contrary to Article 21 of the
Constitution. The test of fairness and reasonableness is implicit
under Article 21 of the Constitution of India. Directing the
accused to surrender to custody after the limited period
amounts to deprivation of his personal liberty.
E
113. It is a settled legal position crystallized by the
Constitution Bench of this court in Sibbia's case (supra) that
the courts should not impose restrictions on the ambit and
scope of section 438 Cr.P.C. which are not envisaged by the
F Legislature. The court cannot rewrite the provision of the statute
in the garb of interpreting it.
114. It is unreasonable to lay down strict, inflexible and rigid
rules for exercise of such discretion by limiting the period of
which an order under this section could be granted. We deem
G it appropriate to reproduce some observations of the judgment
of the Constitution Bench of this court in the Sibbia's case
(supra).
'The validity of that section must accordingly be examined
H by the test of fairness and reasonableness which is implicit
SIDDHARAM SATLINGAPPA MHETRE v. STATE OF 259
MAHARASHTRA [DALVEER BHANDARI, J.]
in Article 21. If the legislature itself were to impose an A
unreasonable restriction on the grant of anticipatory bail,
such a restriction could have been struck down as being
violative of Article 21. Therefore, while determining the
scope of Section 438, the court should not impose any
unfair or unreasonable limitation on the individual's right B
to obtain an order of anticipatory bail. Imposition of an
unfair or unreasonable limitation, according to the learned
Counsel, would be violative of Article 21, irrespective of
whether it is imposed by legislation or by judicial decision.
xxx xxx xxx
c
Clause (1) of Section 438 is couched in terms, broad
and unqualified. By any known canon of construction, words
of width and amplitude ought not generally to be cut down
so as to read into the language of the statute restraints and D
conditions which the legislature itself did not think it proper
or necessary to impose. This is especially true when the
statutory provision which falls for consideration is designed
to secure a valuable right like the right to personal freedom
and involves the application ofa presumption as salutary E
and deep grained in our criminal jurisprudence as the
presumption of innocence."
xxx xxx xxx
"I desire in the first instance to point out that the F
discretion given by the section is very wide ... Now it
seems to me that when the Act is so expressed 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 G
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 H
260 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A discretion given by the statute would be fettered by
limitations which have nowhere been enacted. It is one
thing to decide what is the true meaning of the language
contained in an Act of Parliament. It is quite a different
thing to place conditions upon a free discretion entrusted
B by statute to the court where the conditions are not based
upon statutory enactment at all. It is not safe, I think, to say
that the court must and will always insist upon certain things
when the Act does not require them, and the facts of some
unforeseen case may make the court wish it had kept a
c free hand."
xxx xxx xxx
"The concern of the courts generally is to preserve
their discretion without meaning to abuse it. It will be
D strange if we exhibit concern to stultify the discretion
conferred upon the courts by law."
115. The Apex Court in Salauddin's case (supra) held that
anticipatory bail should be granted only for a limited period and
E on the expiry of that duration it should be left to the regular court
to deal with the matter is not the correct view. The reasons
quoted in the said judgment is that anticipatory bail is granted
at a stage when an investigation is incomplete and the court is
not informed about the nature of evidence against the alleged
offender.
F
116. The said reason would not be right as the restriction
is not seen in the enactment and bail orders by the High Court
and Sessions Court are granted under sections 437 and 439
also at such stages and they are granted till the trial.
G
117. The view expressed by this Court in all the above
referred judgments have to be reviewed and once the
anticipatory bail is granted then the protection should ordinarily
be available till the end of the trial unless the interim protection
H by way of the grant of anticipatory bail is curtailed when the
SIDDHARAM SATLINGAPPA MHETRE v. STATE OF 261
MAHl)RASHTRA [DALVEER BHANDARI, J.]
anticipatory bail granted by the court is cancelled by the court A
on finding fresh material or circumstances or on the ground of
abuse of the indulgence by the accused.
SCOPE AND AMBIT OF ANTICIPATORY BAIL:
118. A good deal of misunderstanding with regard to the B
ambit and scope of section 438 Cr.P.C. could have been
avoided in case the Constitution Bench decision of this court
in Sibbie's case (supra) was correctly understood, appreciated
and applied.
c
119. This Court in the Sibbie's case (supra) laid down the
following principles with regard to anticipatory bail:
(a) Section 438(1) is to be interpreted in light of Article
21 of the Constitution of India.
D
(b) Filing of FIR is not a condition precedent to
exercise of power under section 438.
(c) Order under section 438 would not affect the right
of police to conduct investigation. -
~.
(d) Conditions mentioned in section 437 cannot be
read into section 438.
(e) Although the power to release on anticipatory bail
can be described as of an "extraordinary" character F
this would "not justify the conclusion that the power
must be exercised in exceptional cases only."
Powers are discretionary to be exercised in light of
the circumstances of each case.
G
(f) Initial order can be passed without notice to the .
Public Prosecutor. Thereafter, notice must be
issued forthwith and question ought to be re-
examined after hearing. Such ad interim order must
conform to requirements of the section and suitable
H
262 SUPREME COURT REPORTS (2010] 15 (ADDL.) S.C.R.
A conditions should be imposed on the applicant.
120. The Law Commission in July 2002 has severely
criticized the police of our country for the arbitrary use of power
of arrest which, the Commission said, is the result of the vast
discretionary powers conferred upon them by this Code. The
8
Commission expressed concern that there is no internal
mechanism within the police department to prevent misuse of
law in this manner and the stark reality that complaint lodged
in this regard does not bring any result. The Commission
intends to suggest amendments in the Criminal Procedure
C Code and has invited suggestions from various quarters.
Reference is made in this Article to the 41 st Report of the Law
Commission wherein the Commission saw 'no justification' to
require a person to submit to custody, remain in prison for some
days and then apply for bail even when there are reasonable
D grounds for holding that the person accused of an offence is
not likely to abscond or otherwise misuse his liberty.
Discretionary power to order anticipatory bail is required to be
exercised keeping in mind these sentiments and spirit of the
judgments of this court in Sibbia's case (supra) and Joginder
E Kumar v. State of UP. and Others (1994) 4 SCC 260.
Relevant consideration for exercise of the power
121. No inflexible guidelines or straitjacket formula can be
provided for grant or refusal of anticipatory bail. We are clearly
F of the view that no attempt should be made to provide rigid and
inflexible guidelines in this respect because all circumstances
and situations of future cannot be clearly visualized for the grant
or refusal of anticipatory bail. In consonance with the legislative
intention the grant or refusal of anticipatory bail should
G necessarily depend on facts and circumstances of each case.
As aptly observed in the Constitution Bench decision in
Sibbia's case (supra) that the High Court or the Court of
Sessions to exercise their jurisdiction under section 438
Cr.P.C. by a wise and careful use of their discretion which by
H their long training and experience they are ideally suited to do.
SIDDHARAM SATLINGAPPA MHETRE v. STATE OF 263
MAHARASHTRA [DALVEER BHANDARI, J.]
In any event, this is the legislative mandate which we are bound A
to respect and honour.
122. The following factors and parameters can be taken
into consideration while dealing with the anticipatory bail:
i. The nature and gravity of the accusation and the B
exact role of the accused must be properly
comprehended before arrest is made;
ii. The antecedents of the applicant including the fact
as to whether the accused has previously c
undergone imprisonment on conviction by a Court
in respect of any cognizable offence;
iii. The possibility of the applicant to flee from justice;
iv. The possibility of the accused's likelihood to repeat D
similar or the other offences.
v. Where the accusations have been made only with
the object of injuring or humiliating the applicant by
arresting him or her.
E
vi. Impact of grant of anticipatory bail particularly in
cases of large magnitude affecting a very large
number of people.
vii. The courts must evaluate the entire available F
material against the accused very carefully. The
court must also clearly comprehend the exact role
of the accused in the case. The cases in which
accused is implicated with the help of sections 34
and 149 of the Indian Penal Code, the court should G
consider with even greater care and caution
because over implication in the cases is a matter
of common knowledge and concern;
viii. While considering the prayer for grant of
H
264 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A anticipatory bail, a balance has to be struck
between two factors namely, no prejudice should
be caused to the free, fair and full investigation and
there should be prevention of harassment,
humiliation and unjustified detention of the accused;
B ix. The court to consider reasonable apprehension of
tampering of the witness or apprehension of threat
to the complainant;
x. Frivolity in prosecution should always be
c considered and it is only the element of
genuineness that shall have to be considered in the
matter of grant of bail and in the event of there being
some doubt as to the genuineness of the
prosecution, in the normal course of events, the
D accused is entitled to an order of bail.
123. The arrest should be the last option and it should be
restricted to those exceptional cases where arresting the
accused is imperative in the facts and circumstances of that
case.
E
124. The court must carefully examine the entire available
record and particularly the allegations which have been directly
attributed to the accused and these allegations are
corroborated by other material and circumstances on record.
F
125. These are some of the factors which should be taken
into consideration while deciding the anticipatory bail
applications. These factors are by no means exhaustive but they
are only illustrative in nature because it is difficult to clearly
visualize all situations and circumstances in which a person may
G pray for anticipatory bail. If a wise discretion is exercised by
the concerned judge, after consideration of entire material on
record then most of the grievances in favour of grant of or
refusal of bail will be taken care of. The legislature in its wisdom
has entrusted the power to exercise this jurisdiction only to the
H
SIDDHARAM SATLINGAPPA MHETRE v. STATE OF 265
MAHARASHTRA [DALVEER BHANDARI, J.]
judges of the superior courts. In consonance with the legislative A
intention we should accept the fact that the discretion would be
properly exercised. In any event, the option of approaching the
superior court against the court of Sessions or the High Court
is always available.
B
126. Irrational and Indiscriminate arrest are gross violation
of human rights. In Joginder Kumar's case (supra), a three
Judge Bench of this Court has referred to the 3rd report of the
National Police Commission, in which it is mentioned that the
quality of arrests by the Police in India mentioned power of
arrest as one of the chief sources of corruption in the police. C
The report suggested that, by and large, nearly 60% of the
arrests were either unnecessary or unjustified and that such
unjustified police action accounted for 43.2% of the expenditure
of the jails.
D
127. Personal liberty is a very precious fundamental right
and it should be curtailed only when it becomes imperative
according to the peculiar facts and circumstances of the case.
128. In case, the State consider the following suggestions E
in proper perspective then perhaps it may not be necessary to
curtail the personal liberty of the accused in a routine manner.
These suggestions are only illustrative and not exhaustive.
(1) Direct the accused to join investigation and only
when the accused does not cooperate with the F
investigating agency, then only the accused be
arrested.
(2) Seize either the passport or such other related
documents, such as, the title deeds of properties G
or the Fixed Deposit Receipts/Share Certificates
of the accused.
(3) Direct the accused to execute bonds;
(4) The accused may be directed to furnish sureties of H
266 SUPREME COURT REPORTS (2010] 15 (ADDL.) S.C.R.
A number of persons which according to the
prosecution are necessary in view of the facts of the
particular case.
(5) The accused be directed to furnish undertaking that
he would not visit the place where the witnesses
B
reside so that the possibility of tampering of
evidence or otherwise· influencing the course of
justice can be avoided.
(6) Bank accounts be frozen for small duration during
c investigation.
129. In case the arrest is imperative, according to the facts
of the case, in that event, the arresting officer must clearly
record the reasons for the arrest of the accused before the
D arrest in the case diary, but in exceptional cases where it
becomes imperative to arrest the accused immediately, the
reasons be recorded in the case diary immediately after the
arrest is made without loss of any time so that the court has an
opportunity to properly consider the case for grant or refusal of
E bail in the light of reasons recorded by the arresting officer.
130. Exercise of jurisdiction under section 438 of Cr.P.C.
is extremely important judicial function of a judge and must be
entrusted to judicial officers with some experience and good
track record. Both individual and society have vital interest in
F orders passed by the courts in anticipatory bail applications.
131. It is imperative for the High Courts through its judicial
academies to periodically organize workshops, symposiums,
seminars and lectures by the experts to sensitize judicial
G officers, police officers and investigating officers so that they
can properly comprehend the importance of personal liberty vis-
a-vis social interests. They must learn to maintain fine balance
between the personal liberty and the social interests.
132. The performance of the judicial officers must be
H periodically evaluated on the basis of the cases decided by
SIDDHARAM SATLINGAPPA MHETRE v. STATE OF 267
MAHARASHTRA [DALVEER BHANDARI, J.]
them. In case, they have not been able to maintain balance A
between personal liberty and societal interests, the lacunae
must be pointed out to them and they may be asked to take
corrective measures in future. Ultimately, the entire discretion
of grant or refusal of bail has to be left to the judicial officers
and all concerned must ensure that grant or refusal of bail is B
considered basically on the facts and circumstances of each
case.
133. In our considered view, the Constitution Bench in
Sibbia's case (supra) has comprehensively dealt with almost
all aspects of the concept of anticipatory bail under section 438 C
Cr.P.C. A number of judgments have been referred to by the
!earned counsel for the parties consisting of Benches of smaller
strength where the courts have observed that the anticipatory
bail should be of limited duration only and ordinarily on expiry
of that duration or standard duration, the court granting the D
anticipatory bail should leave it to the regular court to deal with
the matter. This view is clearly contrary to the view taken by the
Constitution Bench in Sibbia's case (supra). In the preceding
paragraphs, it is clearly spelt out that no limitation has been
envisaged by the Legislature under section 438 Cr.P.C. The E
Constitution Bench has aptly observed that "we see no valid
reason for rewriting section 438 with a view, not to expanding
the scope and ambit of the discretion conferred on the High
Court or the Court of Session but, for the purpose of limiting
r. F
134. In view of the clear declaration of law laid down by
the Constitution Bench in Sibbia's case (supra), it would not be
proper to limit the life of anticipatory bail. When the court
observed that the anticipatory bail is for limited duration and G
thereafter the accused should apply to the regular court for bail,
that means the life of section 438 Cr.P.C. would come to an
end after that limited duration. This limitation has not been
envisaged by the legislature. The Constitution Bench in Sibbia's
case (supra) clearly observed that it is not necessary to re-write
H
268 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A section 438 Cr.P.C. Therefore, in view of the clear declaration
of the law by the Constitution Bench, the life of the order under
section 438 Cr.P.C. granting bail cannot be curtailed.
135. The ratio of the judgment of the Constitution Bench
B in Sibbia's case (supra) perhaps was not brought to the notice
of their Lordships who had decided the cases of Sa/auddin
Abdu/samad Shaikh v. State of Maharashtra, K. L. Verma v.
State and Another, Adri Dharan Das v. State of West Bengal
and Sunita Devi v. State of Bihar and Another (supra).
C 136. In Naresh Kumar Yadav v. Ravindra Kumar (2008)
1 SCC 632, a two-Judge Bench of this Court observed "the
power exercisable under section 438 Cr.P.C. is somewhat
extraordinary in character and it should be exercised only in
exceptional cases. This approach is contrary to the legislative
o intention and the Constitution Bench's decision in Sibbia's case
(supra).
137. We deem it appropriate to reiterate and assert that
discretion vested in the court in all matters should be exercised
with care and circumspection depending upon the facts and
E circumstances justifying its exercise. Similarly, the discretion
vested with the court under section 438 Cr.P.C. should also be
exercised with caution and prudence. It is unnecessary to travel
beyond it and subject to the wide power and discretion
conferred by the legislature to a rigorous code of self-imposed
F limitations.
138. The judgments and orders mentioned in paras 135
and 136 are clearly contrary to the law declared by the
Constitution Bench of this Court in Sibbia's case (supra). These
G judgments and orders are also contrary to the legislative
intention. The Court would not be justified in re-writing section
438 Cr.P.C.
139. Now we deem it imperative to examine the issue of
per incuriam raised by the learned counsel for the parties. In
H
SIDDHARAM SATLINGAPPA MHETRE v. STATE OF 269
MAHARASHTRA [DALVEER BHANDARI, J.]
Young v. Bristol Aeroplane Company Limited (1994) All ER A
293 the House of Lords observed that 'lncuria' literally means
'carelessness'. In practice per incuriam appears to mean per
ignoratium. English courts have developed this principle in
relaxation of the rule of stare decisis. The 'quotable in law' is
avoided and ignored if it is rendered, 'in ignoratium of a statute B
or other binding authority. The same has been accepted,
approved and adopted by this court while interpreting Article
141 of the Constitution which embodies the doctrine of
precedents as a matter of law.
" ......... In Halsbury's Laws of England (4th Edn.) Vol. 26:
c
Judgment and Orders:. Judicial Decisions as Authorities
(pp. 297-98, para 578) per incuriam has been elucidated
as under:
"A decision is given per incuriam when the court D
has acted in ignorance of a previous decision of its
own or of a court of coordinate jurisdiction which
covered the case before it, in which case it must
decide which case to follow (Young v. Bristol
Aeroplane Co. Ltd., 1944 KB 718 at 729: (1944) E
2 All ER 293 at 300.
In Huddersfield Police Authority v. Watson, 1947
KB 842 : (1947) 2 All ER 193.); or when it has
acted in ignorance of a House of Lords decision,
in which case it must follow that decision; or when
F
the decision is given in ignorance of the terms of a
statute or rule having statutory force."
140. Lord Godard, C.J. in Huddersfield Police Authority
v. Watson (1947) 2 All ER 193 observed that where a case or G
statute had not been brought to the court's attention and the
court gave the decision in ignorance or forgetfulness of the
existence of the case or statute, it would be a decision
rendered in per incuriam.
H
270 SUPREME COURT REPORTS [2010) 15 (ADDL.) S.C.R.
A 141. This court in Government of A.P. and Another v. B.
Satyanarayana Rao (dead) by LRs. and Others (2000) 4 SCC
262 observed as under:
"The rule of per incuriam can be applied where a court
B omits to consider a binding precedent of the same court
or the superior court rendered on the same issue or where
a court omits to consider any statute while deciding that
issue."
142. In a Constitution Bench judgment of this Court in
C Union of India v. Raghubir Singh (1989) 2 SCC 754, Chief
Justice Pathak observed as under:
"The doctrine of binding precedent has the merit of
promoting a certainty and consistency in judicial decisions,
0 and enables an organic development of the law, besides
providing assurance to the individual as to the
consequence of transactions forming part of his daily
affairs. And, therefore, the need for a clear and consistent
enunciation of legal principle in the decisions of a court."
E 143. In Thota Sesharathamma and another v. Thota
Manikyamma (Dead) by LRs. and others (1991) 4 SCC 312
a two Judge Bench of this Court held that the three Judge
Bench decision in the case of Mst. Karmi v. Amru (1972) 4
sec 86 was per incuriam and observed as under:
F
" ... It is a short judgment without adverting to any
provisions of Section 14 ( 1) or 14(2) of the Act. The
judgment neither makes any mention of any argument
raised in this regard nor there is any mention of the earlier
G decision in Badri Pershad v. Smt. Kanso Devi. The
decision in Mst. Karmi cannot be considered as an
authority on the ambit and scope of Section 14(1) and (2)
of the Act."
144. In R. Thiruvirko/am v. Presiding Officer and Another
H
SIDDHARAM SATLINGAPPA MHETRE v. STATE OF 271
MAHARASHTRA [DALVEER BHANDARI, J.]
(1997) 1 SCC 9 a two Judge Bench of this Court observed that A
the question is whether it was bound to accept the decision
rendered in Gujarat Steel Tubes Ltd. v. Mazdoor Sabha
(1980) 2 sec 593, which was not in conformity with the
decision of a Constitution Bench in P.H. Kalyani v. Air France
(1964) 2 SCR 104. J.S. Verma, J. speaking for the court B
observed as under:
"With great respect, we must say that the above-
quoted observations in Gujarat Steel at P. 215 are not in.
line with the decision in Kalyani which was binding or with C
D. C. Roy to which the learned Judge, Krishna Iyer, J. was
a party. It also does not match with the underlying juristic
principle discussed in Wade. For the reasons, we are
bound to follow the Constitution Bench decision in Ka/yam;
which is the binding authority on the point."
D
145. In Bharat Petroleum Corporation Ltd. v. Mumbai
Shramik Sangra and others (2001) 4 SCC 448 a Constitution
Bench of this Court ruled that a decision of a Constitution Bench
of this Court binds a Bench of two learned Judges of this Court
and that judicial discipline obliges them to follow it, regardless E
of their doubts about its correctness.
146. A Constitution Bench of this Court in Central Board
of Dawoodi Bohra Community v. State of Maharashtra (2005)
2 SCC 673 has observed that the law laid down by this Court
in a decision delivered by a Bench of larger strength is binding F
on any subsequent Bench of lesser or coequal strength.
147. A three-Judge Bench of this court in Official
__Liquidator v. Dayanand and Others (2008) !0 SCC-1 again
reiterated the clear position of law that·ny virtue of Article 141 G
of the Constitutiorr;·the·jaagment of the Constitution Bench in
State of Karnataka and Others v. Umadevi (3) and Others
(2006) 4 sec 1 is binding on all courts including this court till
the same is overruled by a larger Bench. The ratio of the
Constitution Bench has to be followed by Benches of lesser H
272 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A strength. In para 90, the court observed as under:-
"We are distressed to note that despite several
pronouncements on the subject, there is substantial
increase in the number of cases involving violation of the
basics of judicial discipline. The learned Single Judges
B and Benches of the High Courts refuse to follow and
accept the verdict and law laid down by coordinate and
even larger Benches by citing minor difference in the facts
as the ground for doing so. Therefore, it has become
necessary to reiterate that disrespect to the constitutional
c ethos and breach of discipline have grave impact on the
credibility of judicial institution and encourages chance
litigation. It must be remembered that predictability and
certainty is an important hallmark of judicial jurisprudence
developed in this country in the last six decades and
D increase in the frequency of conflicting judgments of the
superior judiciary will do incalculable harm to the system
inasmuch as the courts at the grass roots will not be able
to decide as to which of the judgments lay down the
correct law and which one should be followed."
E
148. In Subhash Chandra and Another v. Delhi
Subordinate Services Selection Board and Others (2009) 15
sec 458, this court again reiterated the settled legal position
that Benches of lesser strength are bound by the judgments of
F the Constitution Bench and any Bench of smaller strength taking
contrary view is per incuriam. The court in para 110 observed
as under:-
"Should we consider S. Pushpa v.
Sivachanmugavelu (2005) 3 SCC 1 to be an obiter
G following the said decision is the question which arises
herein. We think we should. The decisions referred to
hereinbefore clearly suggest that we are bound by a
Constitution Bench decision. We have referred to two
Constitution Bench decisions, namely, Marri Chandra
H Shekhar Rao v. Seth G. S. Medical College (1990) 3
SIDDHARAM SATLINGAPPA. MHETRE v. STATE OF 273
MAHARASHTRA [DALVEER BHANDARI, J.]
SCC 139 and E. V. Chinmaiah v. State of A.P. (2005) 1 A
SCC 394. Marri Chandra Shekhar Rao (supra) had been
followed by this Court. in a large number of decisions
including the three-Judge
I
Bench decisions. S. Pushpa
(supra) therefore, co,uld not have ignored either Marri
Chandra Shekhar Rclio (supra) or other decisions following B
the same only on the basis of an administrative circular
issued or otherwisef~ and more so when the constitutional
1
scheme as contain ed in clause (1) of Articles 341 and 342
of the Constitution of India putting the State and Union
Territory in the same bracket. Following Official Liquidator c
V. Dayanand ancl Others (2008) 10 sec 1 therefore, we
are of the opinion that the dicta in S. Pushpa (supra) is
an obiter and does not lay down any binding ratio."
149. The analy~;is of English and Indian Law clearly leads
to the irresistible conclusion that not only the judgment of a D
larger strength is binding on a judgment of smaller strength but
the judgment of a co-equal strength is also binding on a Bench
of judges of co-equal strength. In the instant case, judgments
mentioned in paragraphs 135 and 136 are by two or three
judges of this court. These judgments have clearly ignored a E
Constitution Bench judgment of this court in Sibbia's case
(supra) which has comprehensively dealt with all the facets of
anticipatory bail enumerated under section 438 of Cr.P.C ..
Consequently, judgments mentioned in paragraphs 135 and
136 of this judgment are per incuriam. F
150. In case there is no judgment of a Constitution Bench
or larger Bench of binding nature and if the court doubts the
correctness of the judgments by two or three judges, then the
proper course would be to request Hon'ble the Chief Justice G
to refer the matter to a larger Bench of appropriate strength.
151. In the instant case there is a direct judgment of the
Constitution Bench of this court in Sibbia's case (supra) dealing
with exactly the same issue regarding ambit, scope and object
of the concept of anticipatory bail enumerated under section H
274 SUPREME COURT REPORTS [2010) 15 (ADDL.) S.C.R.
A 438 Cr.P.C. The controversy is no longer res integra. We are
clearly bound to follow the said judgment of the Constitution
Bench. The judicial discipline obliges us to follow the said
judgment in letter and spirit.
152. In our considered view the impugned judgment and
8
order of the High Court declining anticipatory bail to the
appellant cannot be sustained and is consequently set aside.
153. We direct the appellant to join the investigation and
fully cooperate with the investigating agency. In the event of
C arrest the appellant shall be released on bail on his furnishing
a personal bond in the sum of Rs.50,000/- with two sureties in
the like amount to the satisfaction of the arresting officer.
154. Consequently, this appeal is allowed and disposed
0 of in terms of the aforementioned observations.
N.J. Appeal allowed.
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