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Lalita Kumari v. Govt. of U.P One writ petition, under Article 32 of the Constitution, was filed by Lalita Kumari (minor) through her father, viz., Shri Bhola Kamat for the issuance of a writ of Habeas Corpus or direction(s) of like nature against the respondents for the protection of his minor daughter who has been kidnapped. The grievance in the said writ petition was that on 11.05.2008, a written report was submitted by the petitioner before the officer in-charge of the police station concerned who did not take any action on the same. Thereafter, when a representation to Superintendent of Police was moved, an FIR was registered. According to the petitioner, even thereafter, steps were not taken either for apprehending the accused or for the recovery of the minor girl child. A two‑Judge Bench of SC in, Lalita Kumari vs. Government of Uttar Pradesh & Ors. (2008) 7 SCC 164, after noticing the disparity in registration of FIRs by police officers on case to case basis across the country, issued notice to the Union of India, the Chief Secretaries of all the States and Union Territories and Director Generals of Police/Commissioners of Police to the effect that if steps are not taken for registration of FIRs immediately and the copies thereof are not handed over to the complainants, they may move the Magistrates concerned by filing complaint petitions for appropriate direction(s) to the police to register the case immediately and for apprehending the accused persons, failing which, contempt proceedings must be initiated against such delinquent police officers if no sufficient cause is shown. Pursuant to the above directions, when the matter was heard by the very same Bench in Lalita Kumari vs. Government of Uttar Pradesh & Ors. (2008) 14 SCC 337. In view of the conflicting decisions of Supreme Court on the issue, the said bench, vide order dated 16.09.2008, referred the same to a larger bench. Ensuing compliance to the above direction, the matter pertaining to Lalita Kumari was heard by a Bench of three‑Judges in Lalita Kumari vs. Government of Uttar Pradesh & Ors. (2012) 4 SCC 1 wherein, Supreme Court, after hearing various counsel representing Union of India, States and Union Territories and also after adverting to all the conflicting decisions extensively, referred the matter to a Constitution Bench. ISSUE INVOLVED Whether under Section 154 CrPC, a police officer is bound to register an FIR when a cognizable offence is made out or he (police officer) has an option, discretion or latitude of conducting some kind of preliminary inquiry before registering the FIR? The follow directions were issued by the Constitution Bench of Supreme Court:
i) Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation. ii) If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not. iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further. iv) The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence. v) The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence. vi) As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under: a) Matrimonial disputes/family disputes b) Commercial offences c) Medical negligence cases d) Corruption cases e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay. The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry. vii) While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry. viii) Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above.
sheet (police report) against the three persons under Section 198A and 406 IPC. The Magistrate took cognizance upon the said charge-sheet and thereafter framed charge against them under Section 406 IPC only as, according to the Magistrate, the offence under Section 4 98A IPC was allegedly committed in the district of Karnal. Against the framing of the charge the defendants moved the Sessions Judge in revision, but without success. Thereafter the plaintiff filed another complaint against the three defendants under Section 498A IPC before the Chief Judicial Magistrate, Karnal and on this complaint the magistrate passed a similar order under Section 156(3) of the Code for registration of a case and investigation. In compliance with the orders FIR was registered by the Karnal Police Station and on completion of investigation charge-sheet was submitted against the three under Section 498A IPC. On that charge sheet the Magistrate took cognizance of the above offence and later on framed charge against them in accordance with Section 240 of Cr.PC. Issue before the court: Whether under section 156(3) a Magistrate can ask police to file a FIR/registration of a case? While the above two cases were being tried the defendants filed petitions under Section 482 of the Cr.PC before the Punjab & Haryana High Court for quashing of their proceedings on the ground that the orders passed by the CJMs of Kurukshetra and Karnal directing registration of cases in purported exercise of their power under Section 156(3) of the Code were patently wrong and consequently all actions taken pursuant thereto were illegal. The contention so raised found favour with the High Court; and by the impugned judgment it quashed the orders of the CJMs of Kurukshetra and karnal, pursuant to which cases were registered by the police on the complaints of the appellant, and the entire proceedings of the two cases arising therefrom. According to the High Court, under Section 156(3) of the Cr.PC a Magistrate can only direct investigation by the police but he has no power to direct registration of a case. The Supreme Court observed as under: “whenever a Magistrate directs an investigation on a complaint the police has to register a cognizable case on that complaint treating the same as the FIR and comply with the requirements of the above Rules. It, therefore, passes our comprehension as to how the direction of a Magistrate asking the police to “register a case” makes an order of investigation under Section 156(3) legally unsustainable. Indeed, even if a Magistrate does not pass a direction to register a case, still in view of the provisions of Section 156(1) of the Code which empowers the police to investigate into a cognizable case and the Rules framed under the Indian Police Act, 1861 it (the police) is duty bound to formally register a case and then investigate into the same. The provisions of the Code, therefore, do not in any way stand in the way of a Magistrate to
direct the police to register a case at the police station and then investigate into the same. In our opinion when an order for investigation under Section 156(3) of the Code is to be made the proper direction to the police would be to register a case at the police station treating the complaint as the first information report and investigate into the same.” The impugned judgment and orders of the High Court was set aside by SC and directed the concerned Magistrates to proceed with the cases in accordance of law. Sakiri Vasu v. State of U.P. (2008) [Father demanding CBI investigation in the death case of son (Major in Indian Army, dead body found in Railway Station); inquiries held by Army held that it was a case of suicide] The Supreme Court observed that it has been held by this Court in CBI & another vs. Rajesh Gandhi and another 1997 Cr.L.J 63 (vide para
- that no one can insist that an offence be investigated by a particular agency and agreed with the view in the aforesaid decision. An aggrieved person can only claim that the offence he alleges be investigated properly, but he has no right to claim that it be investigated by any particular agency of his choice. In this connection we would like to state that if a person has a grievance that the police station is not registering his FIR under Section 154 Cr.P.C., then he can approach the Superintendent of Police under Section 154(3) Cr.P.C. by an application in writing. Even if that does not yield any satisfactory result in the sense that either the FIR is still not registered, or that even after registering it no proper investigation is held, it is open to the aggrieved person to file an application under Sec 156(3) Cr.P.C. before the learned Magistrate concerned. If such an application under Sec 156(3) is filed before the Magistrate, the Magistrate can direct the FIR to be registered and also can direct a proper investigation to be made, in a case where, according to the aggrieved person, no proper investigation was made. The Magistrate can also under the same provision monitor the investigation to ensure a proper investigation. We are of the view that although Section 156(3) is very briefly worded, there is an implied power in the Magistrate under Section 156(3) Cr.P.C. to order registration of a criminal offence and /or to direct the officer in charge of the concerned police station to hold a proper investigation and take all such necessary steps that may be necessary for ensuring a proper investigation including monitoring the same. Even though these powers have not been expressly mentioned in Section 156(3) Cr.P.C., we are of the opinion that they are implied in the above provision. We often find that when someone has a grievance that his FIR has not been registered at the police station and/or a proper investigation is not being done by the police, he rushes to the High Court to file a writ petition or a petition under Section 482 Cr.P.C. We are of the opinion that the High Court should not encourage this practice and should ordinarily
- In spite of the constitutional and statutory provisions aimed at safeguarding the personal liberty and life of a citizen, growing incidence of torture and deaths in police custody has been a disturbing factor. Experience shows that worst violations of human rights take place during the course of investigation, when the police with a view to secure evidence or confession often resorts to third- degree methods including torture and adopts techniques of screening arrest by either not recording the arrest or describing the deprivation of liberty merely as a prolonged interrogation. In this case, following important guidelines were issued by the Court as preventive measures to be followed as requirements in all cases of arrests and detention: (1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register. (2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest. (3) A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee. (4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest. (5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained. (6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of
the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is. (7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The “Inspection Memo” must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee. (8) The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the State or Union Territory concerned. Director, Health Services should prepare such a panel for all tehsils and districts as well. (9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the Illaqa Magistrate for his record. (10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation. (11) A police control room should be provided at all district and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board. The Supreme Court directed that failure to comply with the above requirements shall apart from rendering the official concerned liable for departmental action, also render him liable to be punished for contempt of court and the proceedings for contempt of court may be instituted in any High Court of the country, having territorial jurisdiction over the matter. State of Haryana v. Dinesh Kumar, (2008) Two appeals in relation to the recruitment as Constable-Drivers in the Haryana Police which have been decided differently by two co-ordinates benches of the same HC were taken up for hearing before SC as issues to be decided in the appeals were common to both. Issue before the court was what constitutes “arrest” and “custody” in relation to a criminal proceeding? In these cases the applicants while filling their application forms answered the both questions, whether they have ever been arrested and whether ever been convicted by the Court of any offence, in negative. In the first of the two appeals, the applicant in this appeal had not surrendered to the police but had appeared before the Magistrate with his
Accordingly, although, we are of the view that the legal position as to what constitutes arrest was correctly stated in the writ petitions filed by Lalit Kumar and Bhupinder, we confirm the order passed in Dinesh Kumar’s case and extend the same benefit to Lalit Kumar and Bhupinder also. The court reiterated the decision of this Court in Niranjan Singh v. Prabhakar (AIR 1980) where it was held that a person can be stated to be in judicial custody when he surrenders before the Court and submits to its directions. The SC observed that It is no doubt true that in the instant case the accused persons had appeared before the concerned Magistrates with their learned advocates and on applying for bail were granted bail without being taken into formal custody, which appears to have swayed one of the benches of the Punjab and Haryana High Court to take a liberal view and to hold that no arrest had actually been effected. The said view, in our opinion, is incorrect as it goes against the very grain of Sections 46 and 439 of the Code. Arnesh Kumar v. State of Bihar, (2014) (498A IPC. Husband or relative of husband of a woman subjecting her to cruelty.) The judgment arises from an appeal preferred by a husband who apprehended his arrest in a case under Section 498-A of the IPC and Section 4 of the Dowry Prohibition Act, 1961. The husband’s attempt to secure anticipatory bail was failed and hence he knocked the door of Supreme Court by way of SLP. The SC in this case ruled on the principles for making arrest and detention under the Cr.PC. The SC in its ruling has issued certain directions to be followed by the police authorities and the Magistrates while making arrest and/or authorizing detention of an accused. The Supreme Court, in its Ruling, emphasized on the need for caution while exercising the drastic power of arrest, which has for years, been treated as a tool for harassment and oppression in the hands of the police authorities and has greatly contributed to police corruption in India. Citing statistics to demonstrate the misuse of the power of arrest by the police authorities, the Supreme Court proceeded to set out certain objective criteria to be applied before making arrest under the Cr.P.C. The Supreme Court held that no arrest should be made only because the offence is non-bailable and cognizable. Neither should arrest be made in a routine, casual and cavalier manner or on a mere allegation of commission of an offence made against a person. Arrest should only be made after reasonable satisfaction reached after due investigation as to the genuineness of the allegation. Dealing with Section 41 (1) of the Cr.P.C., which provides for conditions precedent to making arrest, the Supreme Court emphasized that for making arrest, the police must be satisfied that all the conditions set out in the provision are met viz.,:
Arrest is necessary:
- to prevent such person from committing any further offence; or
- for proper investigation of the case; or
- to prevent destruction or tampering with evidence by the accused; or
- to prevent such person from influencing the witnesses; or
- to ensure presence of the accused in the court. Police must, in any case, record reasons for making, or not making the arrest in a particular case. Further, the Supreme Court laid down the circumstances in which the Magistrate might authorize detention of the accused. As per Article 22(2) of the Constitution of India and Section 57 of the Cr.P.C, an accused must be produced before the Magistrate without unnecessary delay and in no circumstance beyond 24 hours, excluding the time necessary for the journey. An accused may be kept in detention beyond 24 hours of his arrest, only when authorized by the Magistrate2. The Supreme Court held that when an accused is produced before the Magistrate, the police officer effecting the arrest must furnish the facts, the reasons and the conclusions for arrest and the Magistrate, only upon being satisfied that the conditions of Section 41of Cr.P.C. are met and after recording its satisfaction in writing, may proceed to authorize the detention of an accused. The Supreme Court, further, clarified that even in terms of Section 41 A of the Cr.P.C., where arrest of an accused is not required, the conditions precedent to arrest as envisaged under Section 41 of Cr.P.C. must be complied with and shall be subject to the same scrutiny by the Magistrate. The Supreme Court, in its Ruling, further condemned the practice of police mechanically reproducing reasons contained in Section 41 Cr.P.C. for effecting arrest in case diaries being maintained by the police officers. In light of the above, the Supreme Court has issued the following directions to all the State Governments:-
- To instruct the police officers to not mechanically arrest the accused under Section 498 A of I.P.C. without satisfying themselves that the conditions of arrest are met;
- All police officers to be provided with the check-list of conditions precedent prescribed under Section 41 (1)(b)(ii) of Cr.P.C. This checklist is to be duly filed and forwarded to the Magistrate while producing the accused for further detention;
- The Magistrate shall then peruse the report provided by the police officer and only after recording its satisfaction in writing, may authorize detention;
- The decision to not arrest the accused should be forwarded to the Magistrate within two weeks from the date of institution of the case.
the offence fell under Section 3 or Section 5 was arguable. It follows from this observation that the High Court thought it possible that the offence might fall under Section 5. This, in our opinion, was the basic error into which the High Court fell in dealing with the application for bail before it, and it should have considered the matter even if it did not consider it proper at that stage to decide the question whether the offence was under Section 3 or Section 5, on the assumption that the case fell under Section 3 of the Act. It should then have taken into account the various considerations, such as, nature and seriousness of the offence, the character of the evidence, circumstances which are peculiar to the accused, a reasonable possibility of the presence of the accused not being secured at the trial, reasonable apprehension of witnesses being tampered with the larger interests of the public or the State, and similar other considerations, which arise when a court is asked for bail in a non-bailable offence. It is true that under Section 498 of the Code of Criminal Procedure, the powers of the High Court in the matter of granting bail are very wide; even so where the offence is non- bailable, various considerations such as those indicated above have to be taken into account before bail is granted in a non-bailable offence. This, the High Court does not seem to have done, for it proceeded as if the offence for which the respondent was being prosecuted might be a bailable one. The only reasons which the High Court gave for granting bail in this case were that the other two persons had been granted bail, that there was no likelihood of the respondent absconding, he being well- connected, and that the trial was likely to take considerable time. These are however not the only considerations which should have weighed with the High Court if it had considered the matter as relating to a non- bailable offence under Section 3 of the Act. Moti Ram v. State of M.P. (1978) (Bail jurisprudence-Enlargement on bail with or without sureties-Scope of Ss. 440(1), 441, 445 read with s. 389(1) of the Cr.PC, 1973 - Criteria to guide in quantifying the amount of bail and acceptance of surety whose estate is situate in a different district or State, explained.) Justice Frankfurter said: “there is no surer way to misread a document than to read it literally”. The accused who was a poor mason was convicted. The apex court had passed an order for bail in his favour to the satisfaction of the Chief Judicial Magistrate. The direction of SC did not spell out the details of the bail, and so, the magistrate ordered that a surety in a sum of Rs 10, be produced and further refused to allow his brother to become a surety as his property was in the adjoining village. He went on appeal once more to the apex court and Justice Krishna Iyer condemned the act of the CJM, and said that the judges should be more inclined towards bail and not jail.
He appealed again to modify the original order “to the extent that petitioner be released on furnishing surety to the tune of Rs 2,000 or on executing a personal bond or pass any other order or direction as this Hon‘ble Court may deem fit and proper”. Legal issues in consideration before the Court: (1) Can the Court, under the Code of Criminal Procedure, enlarge, on his own bond without sureties, a person undergoing incarceration for a non bailable offence either as undertrial or as convict who has appealed or sought special leave? (2) If the Court decides to grant bail with sureties, what criteria should guide it in quantifying the amount of bail, and (3) Is it within the power of the Court to reject a surety because he or his estate is situate in a different district or State? SC observed as under: We should suggest that the Magistrate must always bear in mind that monetary bail is not a necessary element of the criminal process and even if risk of monetary loss is a deterrent against fleeing from justice, it is not the only deterrent and there are other factors which are sufficient deterrents against flight. The Magistrate must abandon the antiquated concept under which pre-trial release could be ordered only against monetary Bail. That concept is out-dated and experience has shown that it has done more harm than good. The new insight into the subject of pre-trial release which has now been developed in socially advanced countries and particularly the United States should now inform the decisions of the Magistrates in regard to pre-trial release. Every other feasible method of pre-trial release should be exhausted before resorting to monetary bail. The practice which is now being followed in the United States is that the accused should ordinarily be released on order to appear or on his own recognizance unless it is shown that there is substantial risk of non-appearance or there are circumstances justifying imposition of conditions on release... If a Magistrate is satisfied after making an enquiry into the condition and background of the accused that the accused has his roots in the community and is not likely to abscond, he can safely release the accused on order to appear or on his own recognizance... Thus, the legal literature, Indian and Anglo-American, on bail jurisprudence lends countenance to the contention that bail, loosely used, is comprehensive enough to cover release on one‘s own bond with or without sureties. Supreme Court Directives
relevant for consideration for grant or refusal of bail in a non-bailable offence punishable with death or imprisonment for life there was no option but to cancel the bail. Dismissing the appeal, HELD : (1) The change in language u/s. 437(1) does not affect the true legal position. Under the new Code as well as the old one an accused after being arrested is produced before the Magistrate. There is not a provision in the code Whereby an accused is for the first time produced after initial arrest before the Court of Sessions or before the High Court. It is not possible to hold that the Sessions Judge or the High Court certainly enjoying wide powers will be oblivious of the considerations of the likelihood of the accused being guilty of an offence punishable with death or imprisonment for life. (2)A Court of Sessions cannot cancel a bail which has already been granted, by the High Court unless new circumstances arise during the progress of the trial after the accused person has been admitted to bail by the High Court. If, however, a Court of Sessions had admitted an accused person to bail the State has two options. It may move the Sessions Judge if certain new circumstances have arisen which were not earlier known to the State. The State may as well approach the High Court being the superior court under s. 439(2) to commit the accused to custody. This position follows from the subordinate position of the court of Sessions vis- a-vis the High Court. Under s. 397 the High Court and the Sessions Judge have concurrent powers of revision. However, when an application under that section has been put in by person to the High Court or to the Sessions Judge no further application by the same person shall be entertained by either authority. (3)Chapter XXXIII contains provisions in respect of bail and bonds. Section 436 provides for invariable rule for bail in case of bailable offences subject to the specified exception under sub-s.(2). Section 437 provides as to when bail may be taken in case of non-bailable offences. It makes a distinction between offences punishable with death or imprisonment for life on the, one hand and the rest of the offences on the other hand. (4)With regard to the first category if there are reasonable grounds for believing that an accused has been so guilty in other non-bailable cases judicial discretion will always be exercised by the court in favour of granting bail subject to s. 437(3) with regard to imposition of conditions, if necessary. In case of non-bailable offences punishable with death or imprisonment for life reasons have to be recorded for releasing a person on bail. The only limited enquiry by the Magistrate at that stage relates to the materials for the suspicion. The position would naturally change on investigation progress and more facts and circumstances come to light.
The over-riding considerations in granting bail are the nature and gravity of the circumstances in which the offence is committed, the position and the status of the accused with reference to victim and the witnesses, the likelihood of the accused fleeing from justice, of repeating the offence, of jeopardising his own life being faced with a grim prospect of possible conviction in the case, of tampering with the witnesses, the history of the case as well as of its investigation and other relevant grounds which in view of so many variable factors, cannot be exhaustively set-out. The State v. Captain Jagjit Singh, [1962] (3) S.C.R., 622,referred to. (5)Ordinarily, the High Court would not exercise its discretion to interfere with an order of bail granted by the Sessions Judge in favour of the accused. In the present case, the Sessions Judge did not take into proper account the grave apprehension of the prosecution that there was likelihood of the appellants, tampering with the prosecution witnesses. In the peculiar nature of the case and the position of the appellants in relation to the eye witnesses it was incumbent upon the Sessions Judge to give proper weight to the serious apprehension of the prosecution with regard to the tampering with the eye witnesses. The manner in which the above plea was disposed of by the Sessions Judge was very casual. The facts and circumstances of each case will govern the exercise of judicial discretion in granting or cancelling bail. The High Court has correctly appreciated the entire position and the Sessions Judge did not at the stage the case was before him. This court would not, therefore, be justified u/Art. 136 of the Constitution in interfering with the discretion exercised by the High Court in cancelling the bail. The Court, however, directed that the Magistrate without loss of further time, should pass an appropriate order under s. 209 Cr.PC and that Court of Sessions would thereafter commence trial at an early date and examine all the eye witnesses first and such other material witnesses thereafter as may be produced by the prosecution as early as possible and that trial should proceed day to day as far as practicable. The Court also observed that after the statements of the eye witnesses and the said Panch witness have been recorded it would be open to the accused to move the Sesions Judge for admitting them to bail. Sanjay Chandra v. Central Bureau of Investigation, (2012) (2G scam case) In this case the Court extensively dealt with the issue of granting or refusing the grant of Bail, that is, circumstances under which only Bail should be refused, and ordinarily, as a general rule, Bail should be given.
- Purpose of Bail
- Article 21 violated when undertrial prisoners are detained in jail custody to an indefinite period
- When the under trial prisoners are detained in jail custody to an indefinite period, Article 21 of the Constitution is violated. Every person, detained or arrested, is entitled to speedy trial. Shri Gurbaksh Singh Sibbia v. State of Punjab (1980) (Anticipatory Bail- Sec. 438 of Cr.PC, Scope of Judicial balancing of personal liberty and the investigational powers of the Police, explained.) The accused, Sri Gurbaksh Singh Sibbia was a Minister of Irrigation and Power in the Government of Punjab. Grave allegations of political corruption were made against him and others whereupon applications were filed in the High Court of Punjab and Haryana under section 438 of the Cr. PC, praying that the appellants be directed to be released on bail, in the event of their arrest on the aforesaid charges. Considering the importance of the matter, a learned single Judge referred the applications to a Full Bench, which by its judgment in 1977 dismissed them. Allowing the appeals in part, the Supreme Court, HELD:
- The High Court and the Court of Session should be left to exercise their jurisdiction under section 438 by a wise and careful use of their discretion which by their long training and experience, they are ideally suited to do. The ends of justice will be better served by trusting these courts to act objectively and in consonance with principles governing the grant of bail which are recognised over the years, than by divesting them of their discretion which the legislature has conferred upon them, by laying down inflexible rules of general application. If they err, they are liable to be corrected.
- Section 438(1) of the Code lays down a condition which has to be satisfied before anticipatory bail can be granted. The applicant must show that he has "reason to believe" that he may be arrested for a non-bailable offence. The use of the expression "reason to believe" shows that the belief that the applicant may be so arrested must be founded on reasonable grounds. Mere 'fear' is not 'belief', for which reason it is not enough for the applicant to show that he has some sort of a vague apprehension that someone is going to make an accusation against him, in pursuance of which he may be arrested. The grounds on which the belief of the applicant is based that he may be arrested for a non-bailable offence, must be capable of being examined by the court objectively, because it is then alone that the court can determine whether the applicant has reason to believe that he may be so arrested. Section 438(1), therefore, cannot be invoked on the basis of vague and general allegations, as if to arm oneself in perpetuity against a possible arrest.
Otherwise, the number of applications for anticipatory bail will be as large, as, at any rate, the adult populace. Anticipatory bail is a device to secure the individual's liberty; it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusation, likely or unlikely. Secondly, if an application for anticipatory bail is made to the High Court or the Court of Session it must apply its own mind to the question and decide whether a case has been made out for granting such relief. It cannot leave the question for the decision of the Magistrate concerned under Section 437 of the Code, as and when an occasion arises. Such a course will defeat the very object of Section 438. Thirdly, the filing of a First Information Report is not a condition precedent to the exercise of the power under Section 438. The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an F.I.R. is not yet filed. Fourthly, anticipatory bail can be granted even after an F.I.R. is filed, so long as the applicant has not been arrested. Fifthly, the provisions of Section 438 cannot be invoked after the arrest of the accused. The grant of "anticipatory bail" to an accused who is under arrest involves a contradiction in terms, in so far as the offence or offences for which he is arrested, are concerned. After arrest, the accused must seek his remedy under Section 437 or Section 439 of the Code, if he wants to be released on bail in respect of the offence or offences for which he is arrested.
- However, a "blanket order" of anticipatory bail should not generally be passed. This flows from the very language of the section which requires the appellant to show that he has "reason to believe" that he may be arrested. A belief can be said to be founded on reasonable grounds only if there is something tangible to go by on the basis of which it can be said that the applicant's apprehension that he may be arrested is genuine. That is why, normally, a direction should not issue under Section 438(1) to the effect that the applicant shall be released on bail "whenever arrested for which ever offence whatsoever". That is what is meant by a 'blanket order' of anticipatory bail, an order which serves as a blanket to cover or protect any and every kind of allegedly unlawful activity, in fact any eventuality, likely or unlikely regarding which, no concrete information can possibly be bad. The rationale of a direction under Section 438(1) is the belief of the applicant founded on reasonable grounds that he may be arrested for a non-bailable offence. It is unrealistic to expect the applicant to draw up his application with the meticulousness of a pleading in a civil case and such is not requirement of the section. But specific events and facts must be disclosed by the applicant in order to enable the court to judge of the reasonableness of his belief, the existence of which is the sine qua non of the exercise of power conferred by the section.
