These appeals by special leave involve a question of great public importance bearing, at once, on personal liberty and the investigational powers of the police. The society has a vital stake in both of these interests. Our task in these appeals is how best to balance these interest while determining the scope of Section 438 of the Code of Criminal Procedure.
Gurbaksh Singh Sibbia, was a Minister of Irrigation and Power in Punjab. Grave allegations of political corruption were made against him whereupon, applications were filed in the High Court under Section 438, praying that the appellants be directed to be released on bail, in the event of their arrest on the aforesaid charges. A Full Bench dismissed them.
The Code of Criminal Procedure, 1898 did not contain any specific provision corresponding to the present Section 438. The Law Commission of India, in its 41st Report in 1969 pointed out the necessity of introducing a provision in the Code enabling the High Court and the Court of Session to grant “anticipatory bail”.
The facility which Section 438 affords is generally referred to as ‘anticipatory bail’, an expression which was used by the Law Commission in the 41st Report. Any order of bail can, of course, be effective only from the time of arrest because, to grant bail, as stated in Wharton’s Law Lexicon, is to ‘set at liberty a person arrested or imprisoned, on security being taken for his appearance’. Thus, bail is basically release from restraint, more particularly, release from the custody of the police. An order of bail gives back to the accused freedom on condition that he will appear to take his trial. Personal recognisance, suretyship bonds and such other modalities are the means by which an assurance is secured from the accused that though he has been released on bail, he will present himself at the trial of offence or offences of which he is charged and for which he was arrested.
The distinction between an ordinary order of bail and an order of anticipatory bail is that whereas the former is granted after arrest and therefore means release from the custody of the police, the latter is granted in anticipation of arrest and is therefore effective at the very moment of arrest. Police custody is an inevitable concomitant of arrest for non-bailable offences. An order of anticipatory bail constitutes, so to say, an insurance against police custody following upon arrest for offence or offences in respect of which the order is issued.
In other words, unlike a post-arrest order of bail, it is a pre-arrest legal process which directs that if the person in whose favour it is issued is thereafter arrested on the accusation in respect of which the direction is issued, he shall be released on bail.
Departing from Sections 437 and 439, Section 438(1) uses the language that High Court or Court of Session “may, if it thinks fit” direct that the applicant be released on bail.
It has to be borne in mind that anticipatory bail is sought when there is a mere apprehension of arrest on the accusation that the applicant has committed a non-bailable offence. A person who has yet to lose his freedom by being arrested asks for freedom in the event of arrest. That is the stage at which it is imperative to protect his freedom, insofar as one may, and to give full play to the presumption that he is innocent. In fact, the stage, at which anticipatory bail is sought, brings about its striking dissimilarity with the situation in which a person who is arrested for commission of a non-bailable offence asks for bail.
The High Court and the Court of Session to whom the application for anticipatory bail is made ought to be left free in the exercise of their judicial discretion to grant bail if they consider it fit so to do on the particular facts and circumstances of the case and on such condition as the case may warrant.
Section 438 cannot be exercised in regard to offences punishable with death or imprisonment for life unless the court at the stage of granting anticipatory bail is satisfied that such a charge appears to be false or groundless.
Section 438 confers on the High Court and the Court of Session the power to grant anticipatory bail. We see no warrant for reading into this provision the conditions subject to which bail can be granted under Section 437(1).
That section, while conferring the power to grant bail in cases of non-bailable offences, provides by way of an exception that a person accused or suspected of the commission of a non-bailable offence “shall not be so released” if there appear to be reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life. If it was intended that the exception contained in Section 437(1) should govern the grant of relief under Section 438(1), nothing would have been easier for the legislature than to introduce into the latter section a similar provision.
In cases falling under Section 437, there is some concrete data on the basis of which it is possible to show that there appear to be reasonable grounds for believing that the applicant has been guilty of an offence punishable with death or imprisonment for life. In case falling under Section 438 that stage is still to arrive and, in the generality of cases thereunder, it would be premature and indeed difficult to predicate that there are or are not reasonable grounds for so believing.
The foundation of the belief spoken of in Section 437(1), by reason of which the court cannot release there applicant on bail is, normally the credibility of the allegations contained in the first information report. In the majority of cases falling under Section 438, that data will be lacking for forming the requisite belief.
While granting relief u/s 438(1), appropriate conditions can be imposed u/s 438(2) so as to ensure an uninterrupted investigation. One of such conditions can even be that in the event of the police making out a case of a likely discovery u/s 27 of Evidence Act, the person released on bail shall be liable to be taken in police custody for facilitating the discovery.
Besides, if and when the occasion arises, it may be possible for the prosecution to claim the benefit of Section 27 of the Evidence Act in regard to a discovery of facts made in pursuance of information supplied by a person released on bail by invoking the principle stated by this Court in State of U.P. v. Deoman Upadhyaya [1960 SC] to the effect that when a person not in custody approaches a police officer investigating an offence and offers to give information leading to the discovery of a fact, having a bearing on the charge which may be made against him, he may appropriately be deemed so have surrendered himself to police.
The broad foundation of this rule is stated to be that Section 46 does not contemplate any formality before a person can be said to be taken in custody: submission to the custody by word or action by a person is sufficient.
Since denial of bail amounts to deprivation of personal liberty, the court should lean against the imposition of unnecessary restrictions on the scope of Section 438, especially when no such restrictions have been imposed by the legislature in the terms of that section. Section 438 is a procedural provision which is concerned with personal liberty of the individual, who is entitled to the benefit of the presumption of innocence since he is not, on the date of his application for anticipatory bail, convicted of the offence in respect of which he seeks bail. An over-generous infusion of constraints and conditions which are not to be found in Section 438 can make its provisions constitutionally vulnerable since the right to personal freedom cannot be made to depend on compliance with unreasonable restrictions.
As long back as in 1924 it was held by the High Court of Calcutta in Nagendra v. King-Emperor that the object of bail is to secure the attendance of the accused at the trial, that the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial and that it is indisputable that bail is not to be withheld as punishment.
In regard to anticipatory bail if the proposed accusation appears to stem not from motives of furthering the ends of justice but from some ulterior motive, the object being to injure and humiliate the applicant by having him arrested, a direction for the release of the applicant on bail in the event of his arrest would generally be made. But it cannot be laid down as an inexorable rule that anticipatory bail cannot be granted unless the proposed accusation appears to be actuated by mala fides; and, equally, that anticipatory bail must be granted if there is no fear that the applicant will abscond.
The nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the applicant’s presence not being secured at the trial, a reasonable apprehension that witnesses will be tampered with and “the larger interests of the public or the State” are some of the considerations which the court has to keep in mind while deciding an application for anticipatory bail.
It is of paramount consideration to remember that freedom of individual is as necessary for the survival of society as it is for the egoistic purpose of the individual. A person seeking anticipatory bail is still a free man entitled to presumption of innocence. He is willing to submit to restraints on his freedom, by acceptance of condition which the court may think fit to impose, in consideration of the assurance that if arrested he shall be enlarged on bail.
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.
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.
Grounds on which belief of applicant is based that he may be arrested for a non-bailable offence, must be capable of being examined by the court objectively, as it is then alone that court can determine whether applicant has reason to believe that he may be so arrested.
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 FIR is not yet filed.
Fourthly, anticipatory bail can be granted even after an FIR is filed, so long as the applicant has not been arrested.
A ‘blanket order’ of anticipatory bail should not generally be passed. This flows from the very language of the section which, as discussed above, requires the applicant 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.
The rationale of a direction u/s 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 exercise of power conferred by the section.