• Sidharam Satlingappa Mhetre vs. State of Maharashtra

  • Head Notes

    • Constitution of India - Arts. 21, 22 and 19 - Anticipatory bail - Role of, in protection of right to personal liberty- Sense in which S. 438 CrPC is described as being extraordinary, clarified - Held, S. 438 CrPC is not extraordinary in the sense that it should be invoked only in exceptional or rare cases - A great ignominy, humiliation and disgrace is attached to arrest - In cases where court is of considered view that accused has joined investigation and he is fully cooperating with the investigating agency and is not likely to abscond, in that event, custodial interrogation should be avoided, and anticipatory bail should be granted, which after hearing Public Prosecutor, should ordinarily be continued till end of trial, (2011) 1 SCC 694-A- Constitution of India- Arts. 21 and 22 - Bail - Role of, in protection of right to personal liberty - Essence of function involved in grant of bail, and measures to ensure proper performance thereof - Held, exercise of said jurisdiction requires maintaining of perfect balance between two conflicting interests viz. sanctity of individual liberty and interest of society - Hence, it should be entrusted to judicial officers with some experience and good track record - High Courts advised to periodically organise (through their Judicial Academies) workshops, symposiums, seminars and lectures for orientation of judicial officers and police officers in respect of importance of, and method of balancing of, said conflicting interests - Direction given for periodical evaluation of performance of judicial officers concerned on the basis of cases decided by them, (2011) 1 SCC 694-B- Criminal Procedure Code, 1973 S. 438 - Anticipatory bail - Grant of, and duration for which to be granted - Proper course of action for court - After evaluating averments and accusation available on record, if anticipatory bail is to be granted, held, interim bail should be granted and notice should be issued to Public Prosecutor - After hearing him, court may either reject anticipatory bail application or confirm grant of anticipatory bail - It may also impose conditions for grant of anticipatory bail - If the liberty granted by court is misused then at the instance of Public Prosecutor or complainant, court can cancel or modify conditions of anticipatory bail - Anticipatory bail can be cancelled even on finding of new material or circumstances at any point of time - Anticipatory bail granted should ordinarily be continued till trial of the case - In the present case, applicant although allegedly involved in murder case, High Court's order refusing him anticipatory bail, held, not sustainable - Appellant directed to join investigation and cooperate with investigator - Further directed that in case of arrest, he should be released on bail on personal bond as specified, (2011) 1 SCC 694-C Criminal Procedure Code, 1973 S. 438 - Anticipatory bail - Court's power to grant or refuse - Nature of - Held, it is discretionary, (2011) 1 SCC 694-D Criminal Procedure Code, 1973 Ss. 438, 437 and 439 - Anticipatory bail - Duration for which to be granted - Following Constitution Bench in Sibbia case, (1980) 2 SCC 565, held, grant of anticipatory bail for limited period is illegal - When order of anticipatory bail is confirmed after hearing Public Prosecutor, held, ordinarily its benefit should continue till end of trial - Grant of anticipatory bail for a limited period coupled with requirement to submit to custody thereafter and then seek, if at all, regular bail, held, violative of S. 438 - Such order would also be unreasonable and therefore, violative of Art. 21 of Constitution which enshrines test of fairness and reasonableness, (2011) 1 SCC 694-E-Criminal procedure Code- S. 42 - Condition precedent for exercise of power of police officer to arrest, held, justifiability thereof - Mere availability of the power, not sufficient, (2011) 1 SCC 694-F Criminal Procedure Code, 1973 Ss. 438 and 437 - Relative scope - Reiterated, there is no justification for reading into S. 438 the limitations mentioned in S. 437 - The plentitude of S. 438 must be given its full play - There is no requirement that accused must make out a special case for exercise of the power to grant anticipatory bail - This virtually reduces salutary power conferred by S. 438 to a dead letter, (2011) 1 SCC 694-G Criminal Procedure Code, 1973 S. 438 - Discretion of court to grant or refuse anticipatory bail - Manner of exercise of - Factors to be taken into consideration - Held, said discretion should be exercised with due caution and prudence on the facts and circumstances of the case, without subjecting the discretion to self-imposed limitations - Although no inflexible guidelines or straitjacket formula can be provided in that regard, certain factors and parameters (albeit only illustrative and not exhaustive) laid down which can be taken into consideration while dealing with anticipatory bail, (2011) 1 SCC 694-H Criminal Procedure Code, 1973 Ss. 438 and 42 - Arrest - Arrest of person applying for anticipatory bail, when such arrest becomes imperative - Necessity of recording reasons in case diary emphasised - Such reasons should be recorded before arrest, and in exceptional cases immediately after arrest, so that court may have opportunity to properly consider case for grant or refusal of bail - Importance of fundamental right to personal liberty pointed out, (2011) 1 SCC 694-I Constitution of India- Art. 141 - Later smaller Benches not in consonance with Constitution Bench ruling squarely on the issue - Course to be followed by smaller Bench cognizant of the Constitution Bench ruling - Said earlier rulings of smaller Benches being per incuriam for not being in consonance with the Constitution Bench ruling, former not followed and Constitution Bench ruling followed, (2011) 1 SCC 694-J Precedents Per Incuriam Decision What is and what is its precedential value - Legal position restated, (2011) 1 SCC 694-K Constitution of India Art. 141 - Binding judgments - Not only larger Bench judgment but even judgment of coequal Bench, reiterated, binding - If court doubts correctness of such judgment then proper course is to refer the matter to larger Bench - Present twoJudge Bench, however held, bound by earlier Constitution Bench judgment - Further held, judicial discipline obliges it to do so, (2011) 1 SCC 694-L- Criminal Procedure Code, 1973 S. 438 - Anticipatory bail - Concept of, explained, (2011) 1 SCC 694-M Criminal Procedure Code, 1973 S. 438 and Statement of Objects and Reasons - Legislative history of S. 438 and object of providing anticipatory provision therein, restated, (2011) 1 SCC 694-N Constitution of India Arts. 21 and 19 - Right to life and liberty - Importance of said rights and origin and meaning of liberty, restated - Various treatises and views of important persons considered, (2011) 1 SCC 694-O Constitution of India Arts. 21 and 19 - Right to life and personal liberty - Provision for, in Art. 21 compared with analogous provisions of foreign countries and various international charters, (2011) 1 SCC 694-P Criminal Procedure Code, 1973- S. 438 - Measures to avoid curtailment of personal liberty - Six suggestions, albeit illustrative ones and not exhaustive, given which might dispense with necessity to curtail personal liberty of accused, (2011) 1 SCC 694-T Constitution of India The Practical Lawyer http://www.supremecourtcases.com Eastern Book Company Generated: Sunday, June 14, 2015 Arts. 21 and 19 - Personal liberty protected under - Relative scope - Reiterated, personal liberty is used in Art. 21 as a compendious term to include within itself all varieties of rights which goes to make up the personal liberty of man other than those dealt within several clauses of Art. 19(1) - While Art. 19(1) deals with particular species or attributes of that freedom, personal liberty in Art. 21 takes on and comprises the residue, (2011) 1 SCC 694-U- Judgment: Sidharam Satlingappa Mhetre vs. State of Maharashtra & Ors., Criminal Appeal No.2271 of 2010, Judgment Dated- 02.12.2010, Bench: Dalveer Bhandari & K S Parikar Radhakrishnan, JJ, Citation: 2010 (6) Kar. LJ 930= (2011) 1 SCC 694Head Notes- Constitution of India - Arts. 21, 22 and 19 - Anticipatory bail - Role of, in protection of right to personal liberty- Sense in which S. 438 CrPC is described as being extraordinary, clarified - Held, S. 438 CrPC is not extraordinary in the sense that it should be invoked only in exceptional or rare cases - A great ignominy, humiliation and disgrace is attached to arrest - In cases where court is of considered view that accused has joined investigation and he is fully cooperating with the investigating agency and is not likely to abscond, in that event, custodial interrogation should be avoided, and anticipatory bail should be granted, which after hearing Public Prosecutor, should ordinarily be continued till end of trial, (2011) 1 SCC 694-A- Constitution of India- Arts. 21 and 22 - Bail - Role of, in protection of right to personal liberty - Essence of function involved in grant of bail, and measures to ensure proper performance thereof - Held, exercise of said jurisdiction requires maintaining of perfect balance between two conflicting interests viz. sanctity of individual liberty and interest of society - Hence, it should be entrusted to judicial officers with some experience and good track record - High Courts advised to periodically organise (through their Judicial Academies) workshops, symposiums, seminars and lectures for orientation of judicial officers and police officers in respect of importance of, and method of balancing of, said conflicting interests - Direction given for periodical evaluation of performance of judicial officers concerned on the basis of cases decided by them, (2011) 1 SCC 694-B- Criminal Procedure Code, 1973 S. 438 - Anticipatory bail - Grant of, and duration for which to be granted - Proper course of action for court - After evaluating averments and accusation available on record, if anticipatory bail is to be granted, held, interim bail should be granted and notice should be issued to Public Prosecutor - After hearing him, court may either reject anticipatory bail application or confirm grant of anticipatory bail - It may also impose conditions for grant of anticipatory bail - If the liberty granted by court is misused then at the instance of Public Prosecutor or complainant, court can cancel or modify conditions of anticipatory bail - Anticipatory bail can be cancelled even on finding of new material or circumstances at any point of time - Anticipatory bail granted should ordinarily be continued till trial of the case - In the present case, applicant although allegedly involved in murder case, High Court's order refusing him anticipatory bail, held, not sustainable - Appellant directed to join investigation and cooperate with investigator - Further directed that in case of arrest, he should be released on bail on personal bond as specified, (2011) 1 SCC 694-C Criminal Procedure Code, 1973 S. 438 - Anticipatory bail - Court's power to grant or refuse - Nature of - Held, it is discretionary, (2011) 1 SCC 694-D Criminal Procedure Code, 1973 Ss. 438, 437 and 439 - Anticipatory bail - Duration for which to be granted - Following Constitution Bench in Sibbia case, (1980) 2 SCC 565, held, grant of anticipatory bail for limited period is illegal - When order of anticipatory bail is confirmed after hearing Public Prosecutor, held, ordinarily its benefit should continue till end of trial - Grant of anticipatory bail for a limited period coupled with requirement to submit to custody thereafter and then seek, if at all, regular bail, held, violative of S. 438 - Such order would also be unreasonable and therefore, violative of Art. 21 of Constitution which enshrines test of fairness and reasonableness, (2011) 1 SCC 694-E-Criminal procedure Code- S. 42 - Condition precedent for exercise of power of police officer to arrest, held, justifiability thereof - Mere availability of the power, not sufficient, (2011) 1 SCC 694-F Criminal Procedure Code, 1973 Ss. 438 and 437 - Relative scope - Reiterated, there is no justification for reading into S. 438 the limitations mentioned in S. 437 - The plentitude of S. 438 must be given its full play - There is no requirement that accused must make out a special case for exercise of the power to grant anticipatory bail - This virtually reduces salutary power conferred by S. 438 to a dead letter, (2011) 1 SCC 694-G Criminal Procedure Code, 1973 S. 438 - Discretion of court to grant or refuse anticipatory bail - Manner of exercise of - Factors to be taken into consideration - Held, said discretion should be exercised with due caution and prudence on the facts and circumstances of the case, without subjecting the discretion to self-imposed limitations - Although no inflexible guidelines or straitjacket formula can be provided in that regard, certain factors and parameters (albeit only illustrative and not exhaustive) laid down which can be taken into consideration while dealing with anticipatory bail, (2011) 1 SCC 694-H Criminal Procedure Code, 1973 Ss. 438 and 42 - Arrest - Arrest of person applying for anticipatory bail, when such arrest becomes imperative - Necessity of recording reasons in case diary emphasised - Such reasons should be recorded before arrest, and in exceptional cases immediately after arrest, so that court may have opportunity to properly consider case for grant or refusal of bail - Importance of fundamental right to personal liberty pointed out, (2011) 1 SCC 694-I Constitution of India- Art. 141 - Later smaller Benches not in consonance with Constitution Bench ruling squarely on the issue - Course to be followed by smaller Bench cognizant of the Constitution Bench ruling - Said earlier rulings of smaller Benches being per incuriam for not being in consonance with the Constitution Bench ruling, former not followed and Constitution Bench ruling followed, (2011) 1 SCC 694-J Precedents Per Incuriam Decision What is and what is its precedential value - Legal position restated, (2011) 1 SCC 694-K Constitution of India Art. 141 - Binding judgments - Not only larger Bench judgment but even judgment of coequal Bench, reiterated, binding - If court doubts correctness of such judgment then proper course is to refer the matter to larger Bench - Present twoJudge Bench, however held, bound by earlier Constitution Bench judgment - Further held, judicial discipline obliges it to do so, (2011) 1 SCC 694-L- Criminal Procedure Code, 1973 S. 438 - Anticipatory bail - Concept of, explained, (2011) 1 SCC 694-M Criminal Procedure Code, 1973 S. 438 and Statement of Objects and Reasons - Legislative history of S. 438 and object of providing anticipatory provision therein, restated, (2011) 1 SCC 694-N Constitution of India Arts. 21 and 19 - Right to life and liberty - Importance of said rights and origin and meaning of liberty, restated - Various treatises and views of important persons considered, (2011) 1 SCC 694-O Constitution of India Arts. 21 and 19 - Right to life and personal liberty - Provision for, in Art. 21 compared with analogous provisions of foreign countries and various international charters, (2011) 1 SCC 694-P Criminal Procedure Code, 1973- S. 438 - Measures to avoid curtailment of personal liberty - Six suggestions, albeit illustrative ones and not exhaustive, given which might dispense with necessity to curtail personal liberty of accused, (2011) 1 SCC 694-T Constitution of India The Practical Lawyer http://www.supremecourtcases.com Eastern Book Company Generated: Sunday, June 14, 2015 Arts. 21 and 19 - Personal liberty protected under - Relative scope - Reiterated, personal liberty is used in Art. 21 as a compendious term to include within itself all varieties of rights which goes to make up the personal liberty of man other than those dealt within several clauses of Art. 19(1) - While Art. 19(1) deals with particular species or attributes of that freedom, personal liberty in Art. 21 takes on and comprises the residue, (2011) 1 SCC 694-U- Judgment: Sidharam Satlingappa Mhetre vs. State of Maharashtra & Ors., Criminal Appeal No.2271 of 2010, Judgment Dated- 02.12.2010, Bench: Dalveer Bhandari & K S Parikar Radhakrishnan, JJ, Citation: 2010 (6) Kar. LJ 930= (2011) 1 SCC 694Head Notes- Constitution of India - Arts. 21, 22 and 19 - Anticipatory bail - Role of, in protection of right to personal liberty- Sense in which S. 438 CrPC is described as being extraordinary, clarified - Held, S. 438 CrPC is not extraordinary in the sense that it should be invoked only in exceptional or rare cases - A great ignominy, humiliation and disgrace is attached to arrest - In cases where court is of considered view that accused has joined investigation and he is fully cooperating with the investigating agency and is not likely to abscond, in that event, custodial interrogation should be avoided, and anticipatory bail should be granted, which after hearing Public Prosecutor, should ordinarily be continued till end of trial, (2011) 1 SCC 694-A- Constitution of India- Arts. 21 and 22 - Bail - Role of, in protection of right to personal liberty - Essence of function involved in grant of bail, and measures to ensure proper performance thereof - Held, exercise of said jurisdiction requires maintaining of perfect balance between two conflicting interests viz. sanctity of individual liberty and interest of society - Hence, it should be entrusted to judicial officers with some experience and good track record - High Courts advised to periodically organise (through their Judicial Academies) workshops, symposiums, seminars and lectures for orientation of judicial officers and police officers in respect of importance of, and method of balancing of, said conflicting interests - Direction given for periodical evaluation of performance of judicial officers concerned on the basis of cases decided by them, (2011) 1 SCC 694-B- Criminal Procedure Code, 1973 S. 438 - Anticipatory bail - Grant of, and duration for which to be granted - Proper course of action for court - After evaluating averments and accusation available on record, if anticipatory bail is to be granted, held, interim bail should be granted and notice should be issued to Public Prosecutor - After hearing him, court may either reject anticipatory bail application or confirm grant of anticipatory bail - It may also impose conditions for grant of anticipatory bail - If the liberty granted by court is misused then at the instance of Public Prosecutor or complainant, court can cancel or modify conditions of anticipatory bail - Anticipatory bail can be cancelled even on finding of new material or circumstances at any point of time - Anticipatory bail granted should ordinarily be continued till trial of the case - In the present case, applicant although allegedly involved in murder case, High Court's order refusing him anticipatory bail, held, not sustainable - Appellant directed to join investigation and cooperate with investigator - Further directed that in case of arrest, he should be released on bail on personal bond as specified, (2011) 1 SCC 694-C Criminal Procedure Code, 1973 S. 438 - Anticipatory bail - Court's power to grant or refuse - Nature of - Held, it is discretionary, (2011) 1 SCC 694-D Criminal Procedure Code, 1973 Ss. 438, 437 and 439 - Anticipatory bail - Duration for which to be granted - Following Constitution Bench in Sibbia case, (1980) 2 SCC 565, held, grant of anticipatory bail for limited period is illegal - When order of anticipatory bail is confirmed after hearing Public Prosecutor, held, ordinarily its benefit should continue till end of trial - Grant of anticipatory bail for a limited period coupled with requirement to submit to custody thereafter and then seek, if at all, regular bail, held, violative of S. 438 - Such order would also be unreasonable and therefore, violative of Art. 21 of Constitution which enshrines test of fairness and reasonableness, (2011) 1 SCC 694-E-Criminal procedure Code- S. 42 - Condition precedent for exercise of power of police officer to arrest, held, justifiability thereof - Mere availability of the power, not sufficient, (2011) 1 SCC 694-F Criminal Procedure Code, 1973 Ss. 438 and 437 - Relative scope - Reiterated, there is no justification for reading into S. 438 the limitations mentioned in S. 437 - The plentitude of S. 438 must be given its full play - There is no requirement that accused must make out a special case for exercise of the power to grant anticipatory bail - This virtually reduces salutary power conferred by S. 438 to a dead letter, (2011) 1 SCC 694-G Criminal Procedure Code, 1973 S. 438 - Discretion of court to grant or refuse anticipatory bail - Manner of exercise of - Factors to be taken into consideration - Held, said discretion should be exercised with due caution and prudence on the facts and circumstances of the case, without subjecting the discretion to self-imposed limitations - Although no inflexible guidelines or straitjacket formula can be provided in that regard, certain factors and parameters (albeit only illustrative and not exhaustive) laid down which can be taken into consideration while dealing with anticipatory bail, (2011) 1 SCC 694-H Criminal Procedure Code, 1973 Ss. 438 and 42 - Arrest - Arrest of person applying for anticipatory bail, when such arrest becomes imperative - Necessity of recording reasons in case diary emphasised - Such reasons should be recorded before arrest, and in exceptional cases immediately after arrest, so that court may have opportunity to properly consider case for grant or refusal of bail - Importance of fundamental right to personal liberty pointed out, (2011) 1 SCC 694-I Constitution of India- Art. 141 - Later smaller Benches not in consonance with Constitution Bench ruling squarely on the issue - Course to be followed by smaller Bench cognizant of the Constitution Bench ruling - Said earlier rulings of smaller Benches being per incuriam for not being in consonance with the Constitution Bench ruling, former not followed and Constitution Bench ruling followed, (2011) 1 SCC 694-J Precedents Per Incuriam Decision What is and what is its precedential value - Legal position restated, (2011) 1 SCC 694-K Constitution of India Art. 141 - Binding judgments - Not only larger Bench judgment but even judgment of coequal Bench, reiterated, binding - If court doubts correctness of such judgment then proper course is to refer the matter to larger Bench - Present twoJudge Bench, however held, bound by earlier Constitution Bench judgment - Further held, judicial discipline obliges it to do so, (2011) 1 SCC 694-L- Criminal Procedure Code, 1973 S. 438 - Anticipatory bail - Concept of, explained, (2011) 1 SCC 694-M Criminal Procedure Code, 1973 S. 438 and Statement of Objects and Reasons - Legislative history of S. 438 and object of providing anticipatory provision therein, restated, (2011) 1 SCC 694-N Constitution of India Arts. 21 and 19 - Right to life and liberty - Importance of said rights and origin and meaning of liberty, restated - Various treatises and views of important persons considered, (2011) 1 SCC 694-O Constitution of India Arts. 21 and 19 - Right to life and personal liberty - Provision for, in Art. 21 compared with analogous provisions of foreign countries and various international charters, (2011) 1 SCC 694-P Criminal Procedure Code, 1973- S. 438 - Measures to avoid curtailment of personal liberty - Six suggestions, albeit illustrative ones and not exhaustive, given which might dispense with necessity to curtail personal liberty of accused, (2011) 1 SCC 694-T Constitution of India. Personal liberty protected under - Relative scope - Reiterated, personal liberty is used in Art. 21 as a compendious term to include within itself all varieties of rights which goes to make up the personal liberty of man other than those dealt within several clauses of Art. 19(1) - While Art. 19(1) deals with particular species or attributes of that freedom, personal liberty in Art. 21 takes on and comprises the residue, (2011) 1 SCC 694-U- Judgment: Sidharam Satlingappa Mhetre vs. State of Maharashtra & Ors., Criminal Appeal No.2271 of 2010, Judgment Dated- 02.12.2010, Bench: Dalveer Bhandari & K S Parikar Radhakrishnan, JJ, Citation: 2010 (6) Kar. LJ 930= (2011) 1 SCC 694Head Notes- Constitution of India - Arts. 21, 22 and 19 - Anticipatory bail - Role of, in protection of right to personal liberty- Sense in which S. 438 CrPC is described as being extraordinary, clarified - Held, S. 438 CrPC is not extraordinary in the sense that it should be invoked only in exceptional or rare cases - A great ignominy, humiliation and disgrace is attached to arrest - In cases where court is of considered view that accused has joined investigation and he is fully cooperating with the investigating agency and is not likely to abscond, in that event, custodial interrogation should be avoided, and anticipatory bail should be granted, which after hearing Public Prosecutor, should ordinarily be continued till end of trial, (2011) 1 SCC 694-A- Constitution of India- Arts. 21 and 22 - Bail - Role of, in protection of right to personal liberty - Essence of function involved in grant of bail, and measures to ensure proper performance thereof - Held, exercise of said jurisdiction requires maintaining of perfect balance between two conflicting interests viz. sanctity of individual liberty and interest of society - Hence, it should be entrusted to judicial officers with some experience and good track record - High Courts advised to periodically organise (through their Judicial Academies) workshops, symposiums, seminars and lectures for orientation of judicial officers and police officers in respect of importance of, and method of balancing of, said conflicting interests - Direction given for periodical evaluation of performance of judicial officers concerned on the basis of cases decided by them, (2011) 1 SCC 694-B- Criminal Procedure Code, 1973 S. 438 - Anticipatory bail - Grant of, and duration for which to be granted - Proper course of action for court - After evaluating averments and accusation available on record, if anticipatory bail is to be granted, held, interim bail should be granted and notice should be issued to Public Prosecutor - After hearing him, court may either reject anticipatory bail application or confirm grant of anticipatory bail - It may also impose conditions for grant of anticipatory bail - If the liberty granted by court is misused then at the instance of Public Prosecutor or complainant, court can cancel or modify conditions of anticipatory bail - Anticipatory bail can be cancelled even on finding of new material or circumstances at any point of time - Anticipatory bail granted should ordinarily be continued till trial of the case - In the present case, applicant although allegedly involved in murder case, High Court's order refusing him anticipatory bail, held, not sustainable - Appellant directed to join investigation and cooperate with investigator - Further directed that in case of arrest, he should be released on bail on personal bond as specified, (2011) 1 SCC 694-C Criminal Procedure Code, 1973 S. 438 - Anticipatory bail - Court's power to grant or refuse - Nature of - Held, it is discretionary, (2011) 1 SCC 694-D Criminal Procedure Code, 1973 Ss. 438, 437 and 439 - Anticipatory bail - Duration for which to be granted - Following Constitution Bench in Sibbia case, (1980) 2 SCC 565, held, grant of anticipatory bail for limited period is illegal - When order of anticipatory bail is confirmed after hearing Public Prosecutor, held, ordinarily its benefit should continue till end of trial - Grant of anticipatory bail for a limited period coupled with requirement to submit to custody thereafter and then seek, if at all, regular bail, held, violative of S. 438 - Such order would also be unreasonable and therefore, violative of Art. 21 of Constitution which enshrines test of fairness and reasonableness, (2011) 1 SCC 694-E-Criminal procedure Code- S. 42 - Condition precedent for exercise of power of police officer to arrest, held, justifiability thereof - Mere availability of the power, not sufficient, (2011) 1 SCC 694-F Criminal Procedure Code, 1973 Ss. 438 and 437 - Relative scope - Reiterated, there is no justification for reading into S. 438 the limitations mentioned in S. 437 - The plentitude of S. 438 must be given its full play - There is no requirement that accused must make out a special case for exercise of the power to grant anticipatory bail - This virtually reduces salutary power conferred by S. 438 to a dead letter, (2011) 1 SCC 694-G Criminal Procedure Code, 1973 S. 438 - Discretion of court to grant or refuse anticipatory bail - Manner of exercise of - Factors to be taken into consideration - Held, said discretion should be exercised with due caution and prudence on the facts and circumstances of the case, without subjecting the discretion to self-imposed limitations - Although no inflexible guidelines or straitjacket formula can be provided in that regard, certain factors and parameters (albeit only illustrative and not exhaustive) laid down which can be taken into consideration while dealing with anticipatory bail, (2011) 1 SCC 694-H Criminal Procedure Code, 1973 Ss. 438 and 42 - Arrest - Arrest of person applying for anticipatory bail, when such arrest becomes imperative - Necessity of recording reasons in case diary emphasised - Such reasons should be recorded before arrest, and in exceptional cases immediately after arrest, so that court may have opportunity to properly consider case for grant or refusal of bail - Importance of fundamental right to personal liberty pointed out, (2011) 1 SCC 694-I Constitution of India- Art. 141 - Later smaller Benches not in consonance with Constitution Bench ruling squarely on the issue - Course to be followed by smaller Bench cognizant of the Constitution Bench ruling - Said earlier rulings of smaller Benches being per incuriam for not being in consonance with the Constitution Bench ruling, former not followed and Constitution Bench ruling followed, (2011) 1 SCC 694-J Precedents Per Incuriam Decision What is and what is its precedential value - Legal position restated, (2011) 1 SCC 694-K Constitution of India Art. 141 - Binding judgments - Not only larger Bench judgment but even judgment of coequal Bench, reiterated, binding - If court doubts correctness of such judgment then proper course is to refer the matter to larger Bench - Present twoJudge Bench, however held, bound by earlier Constitution Bench judgment - Further held, judicial discipline obliges it to do so, (2011) 1 SCC 694-L- Criminal Procedure Code, 1973 S. 438 - Anticipatory bail - Concept of, explained, (2011) 1 SCC 694-M Criminal Procedure Code, 1973 S. 438 and Statement of Objects and Reasons - Legislative history of S. 438 and object of providing anticipatory provision therein, restated, (2011) 1 SCC 694-N Constitution of India Arts. 21 and 19 - Right to life and liberty - Importance of said rights and origin and meaning of liberty, restated - Various treatises and views of important persons considered, (2011) 1 SCC 694-O Constitution of India Arts. 21 and 19 - Right to life and personal liberty - Provision for, in Art. 21 compared with analogous provisions of foreign countries and various international charters, (2011) 1 SCC 694-P Criminal Procedure Code, 1973- S. 438 - Measures to avoid curtailment of personal liberty - Six suggestions, albeit illustrative ones and not exhaustive, given which might dispense with necessity to curtail personal liberty of accused, (2011) 1 SCC 694-T- Relative scope- Reiterated, personal liberty is used in Art. 21 as a compendious term to include within itself all varieties of rights which goes to make up the personal liberty of man other than those dealt within several clauses of Art. 19(1) - While Art. 19(1) deals with particular species or attributes of that freedom, personal liberty in Art. 21 takes on and comprises the residue, (2011) 1 SCC 694-U- Judgment: Sidharam Satlingappa Mhetre vs. State of Maharashtra & Ors., Criminal Appeal No.2271 of 2010, Judgment Dated- 02.12.2010, Bench: Dalveer Bhandari & K S Parikar Radhakrishnan, JJ, Citation: 2010 (6) Kar. LJ 930= (2011) 1 SCC 694

    Full Judgment

    IN THE SUPREME COURT OF INDIA

    CRIMINAL APPELLATE JURISDICTION

    CRIMINAL APPEAL NO. 2271                2010.

    (Arising out of SLP (Crl.) No.7615 of 2009)

    Siddharam Satlingappa Mhetre                        .....Appellant

    Versus

    State of Maharashtra and Others                  .....Respondents

    JUDGMENT

    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.

    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

    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

    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:

    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 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

    Siddharam Mhetre and opposed to the BJP candidate.

    3

    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     Ishwarappa   Kore,

    Bhimashankar Ishwarappa 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

    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, 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 direction and loudly shouted, "why have you

    come to our village? Have you come here to oppose our Mhetre

    4

    Saheb? They asked them to go away and shouted Mhetre Saheb

    Ki Jai."

    6.   Baburao Patil and Prakash Patil from the aforementioned

    group fired from their pistols in order to kill Sidramappa Patil

    and the other workers of the BJP. Bhima 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 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 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 incident

    of instigation.

    8.   The law relating to bail is contained in sections 436 to 450

    of chapter XXXIII of the Code of Criminal Procedure, 1973.

    5

    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

    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

    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 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

    that Court may, after taking into consideration, inter

    alia, the following factors, namely:

    (i)                                                                                                                              

    (ii) the antecedents of the applicant including the

    fact 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

    6

    (iv) where the accusation has been made with the

    object of injuring or humiliating the applicant

    by having him so arrested,

    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 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.

    (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 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 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

    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 available for interrogation by a

    police officer as and when required;

    7

     (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

    so as to dissuade him from disclosing such

    facts 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-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, 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 warrant

    in conformity with the direction of the Court under

    sub-section (1)."

    Why was the provision of anticipatory bail             introduced? -

    Historical perspective

    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, the

    preponderance of view being that it did not have such power.

    8

    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

    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

    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 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 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 some days and then

    apply for bail."

    The    Law    commission    recommended      acceptance    of        the

    13.   The Law Commission in para 31 of its 48th Report (July,

    1972) made the following comments on the aforesaid clause:

    9

    "The Bill introduces a provision for the grant of

    anticipatory bail. This is substantially in accordance

    with 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

    We are further of the view that in order to ensure

    that the provision is not put to abuse at the instance

    of unscrupulous petitioners, the final order should be

    made only after notice to the Public Prosecutor. The

    initial order should only be an interim one. Further,

    the relevant section should make it clear that the

    direction can be issued only for reasons to be

    recorded, and if the court is satisfied that 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."

    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.

    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 Procedure,

    1973 that it was felt imperative to evolve a device by which an

    alleged accused is not compelled to face ignominy and disgrace

    10

    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 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.

    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 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

    18.   The High Court in the impugned judgment has declined to

    grant anticipatory bail to the appellant and aggrieved by the said

    11

    order, the appellant has approached this Court by filing this

    19.   Mr. Shanti Bhushan, learned senior counsel appearing 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 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

    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 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

    12

    conclusion that the entire prosecution story seems to be a cock

    and bull story and no reliance can be placed on such a

    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

    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 impetus

    to the age-old principle that every person is presumed 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 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 has already

    13

    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

    further investigation particularly when he has already joined

    investigation and is fully cooperating with the investigating

    24.   Mr. Bhushan also submitted that according to the 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 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.

    14

    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 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-sheet is filed.   Mr. Bhushan 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

    26.   Mr. Bhushan submitted that the discretion which has been

    granted by the legislature cannot and should not be 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 evaluated in the

    context of emerging concerns as and when it arises.           It is

    15

    difficult to visualize or anticipate all kinds of problems and

    situations which may arise in future.

    Law has been settled by an authoritative pronouncement 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 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:

    "........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 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 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".

    28.   Mr. Bhushan referred to a Constitution Bench judgment in

    Sibbia's case (supra) to strengthen his argument that no such

    16

    embargo has been placed by the said judgment of the

    Constitution Bench.     He placed heavy reliance on para 15 of

    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 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 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 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 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 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

    17

    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 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"

    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 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

    Constitution where individual's liberty in a democratic society is

    considered sacrosanct.

    18

    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 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 in murder cases

    custodial interrogation is of paramount importance particularly

    when no eye witness account is 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 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 SCC 348, Adri Dharan

    Das v. State of West Bengal (2005) 4 SCC 303 and 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

    19

    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 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 of

    Tamil Nadu and Another (1989) 4 SCC 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 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 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"

    34.   He placed reliance on another judgment of this Court in

    Vijayalaxmi      Cashew     Company      and    Others    v.     Dy.

    20

    Commercial Tax Officer and Another (1996) 1 SCC 468. This

    Court held as under:

    "........It is not possible to uphold the contention that

    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."

    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

    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

    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 of

    or without considering a statutory provision or a binding

    precedent is not good law and the same ought to be ignored. A

    21

    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.

    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

    case (supra) since they are decisions of Benches comprised of

    lesser number of judges.      According to him, none of these

    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

    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

    observations made in the subsequent judgments to the effect

    that anticipatory bail should be for a limited period of time, must

    22

    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

    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)

    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

    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.

    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

    23

    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.

    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

    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

    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

    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

    achievement of the self-realization of the people.

    24

    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   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 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 absence of

    restraint upon the exercise of that affirmation and thirdly,

    organization of opportunities for the exercise of a continuous

    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 Stuard Mill

    25

    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 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

    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 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

    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

    26

    the French Convention stipulates common happiness as the 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

    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 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

    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

    27

    unless he is in possession of certain essential liberties which

    leave him free as it were to breathe and expand. According to

    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

    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

    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

    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.

    28

    52.   Harold J. Laski in his monumental work in "Liberty in the

    Modern State" observed that liberty always demands 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

    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 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

    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".

    29

    55.    According to Dicey, a distinguished English author of the

    Constitutional Law in his treatise on Constitutional Law

    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 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 individual,

    and personal liberty in this sense is the antithesis of physical

    restraint or coercion.

    56.    Eminent English Judge Lord Alfred Denning observed:

    "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 good order of the community in

    which we live."

    30

    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, 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

    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

    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

    modern democratic thought. The object is to ensure the

    inviolability   of   certain    essential   rights    against      political

    31

    60.   The framers of the Indian Constitution followed the

    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 21

    of the Indian Constitution asserts the importance of        life and

    liberty. The said Article reads as under:-

    "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.

    1.   Right to life

    2    Right to personal liberty.

    61.   Life and personal liberty are the most prized possessions of

    an individual. 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.

    62. This court defined the term "personal liberty" immediately

    after the Constitution came in force in India in the case of A. K.

    32

    Gopalan 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 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.

    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, 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 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

    33

    Article 19, from the purview of `personal liberty' guaranteed by

    Art. 21.

    64.   In Kharak Singh v. State of U.P. 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 `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 SCC 248, this court expanded the scope of the 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 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

    34

    very wide and includes all possible rights which go to constitute

    personal liberty, including those which are mentioned in Article

    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 712].

    67.     Article 21 is a declaration of deep faith and belief in human

    rights. In this pattern of guarantee woven in Chapter III of this

    Constitution, personal liberty of man is at root of Article 21 and

    each expression used in this Article 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.

     [Kartar Singh v. State of Punjab and Others (1994) 3 SCC

    569].

    68.     While examining the ambit, scope and content of the

    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

    35

    species or attributes of that freedom, "personal liberty" 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,

    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

    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 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

    36

    and 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 upon

    personal liberty in any manner.       Article 21 is repository of al

    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 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 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

    37

    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 accordingly.

    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

    74.   In Prem Shankar Shukla v. Delhi Administration (1980)

    3 SCC 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 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 than 3

    years prison term shall be routinely handcuffed is

    violative of Articles 14, 19 and 21. The nature of the

    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 victim

    is produced. ... Handcuffs are not summary

    punishment vicariously imposed at police level, at

    38

    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, 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)

    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 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 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 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 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 responsible for his custody. But there

    is room for imposing supervisory regime over the

    39

    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

    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."

    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.

    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 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

    77.   In the Magna Carta, it is stated "no free man shall be taken,

    or imprisoned or disseised or outlawed or banished or any ways

    40

    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".

    78.    Right to life is the most fundamental of all human rights

    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 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.

    79.    The importance of personal liberty is reflected in the Fifth

    Amendment to the Constitution of U.S.A. (1791) which declares

    as under :-

    "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' [s.7].

    41

    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, 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, 8 th

    Edn. 2002 p.475.).

    WEST GERMANY

    81.   Article 2(2) of the West German Constitution (1948)

    declares:

    "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

    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

    42

    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:

    "(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 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

    of a formal law or in contravention of the procedure prescribed

    JAPAN

    83.   Article XXXI of the Japanese Constitution of 1946 says :

    "No person shall be deprived of life or liberty nor shall

    any other criminal penalty be imposed, except

    according to procedure established by law."

    This article is similar to Article 21 of our Constitution save that it

    includes other criminal penalties, such as fine or forfeiture

    within its ambit.

    43

    CANADA

    84.   S. 1(1) of the Canadian Bill of Rights Act, 1960, adopted the

    `Due Process' Clause from the American 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 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 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 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 A.K. Gopalan (supra).

    44

    BANGADESH

    85.   Article 32 of the Constitution of Bangladesh, 1972 [3 SCW

    385] reads as under:

    "No person shall be deprived of life or personal liberty

    save 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

    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."

    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.

    INTERNATIONAL CHARTERS

    88.   Universal Declaration, 1948. - Article 3 of the Universal

    Declaration says:

    "Everyone has the right to life, liberty and security of

    person."

    45

    Article 9 provides:

    "No one shall be subjected to arbitrary arrest,

    detention or exile."

    Cl.10 says:

    "Everyone is entitled in full equality to a fair and

    public hearing by an independent and impartial

    tribunal, in the determination of his rights and

    obligations and of any criminal charge against him."

    [As to its legal effect, see M. v. Organisation Belge,

    (1972) 45 Inter, LR 446 (447, 451, et. Sq.)]

    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 grounds and in accordance with such

    procedure as are 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 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 described as follows:

    46

    "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 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, 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 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 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

    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.

    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

    47

    Constitution Bench in Sibbia's case (supra) clearly mentioned

    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

    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 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

    application should try to maintain fine balance between the

    societal interest vis-`-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.

    48

    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

    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 the investigating officer is established then

    action be taken against the investigating officer in accordance

    with law.

    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 that while

    dealing with the bail application, the remarks and observations

    of the arresting officer can also be properly evaluated by the

    49

    96.   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 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

    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

    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.?

    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 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
    50

    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 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 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 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 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.

    51

    100. The Constitution Bench in the same judgment also

    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 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 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 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.

    52

    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 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 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

    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 the

    superior courts namely, the High Court and the Court of

    Session. The Constitution Bench observed as under:

    53

    "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 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 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 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 err,

    they are liable to be corrected."

    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 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.

    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

    54

    artificial and unreasonable restriction on the scope of enactment

    contrary to the legislative intention

    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

    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 established by law

    for depriving a person of his liberty must be fair, just and

    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 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

    55

    concerned court would be fully justified in imposing conditions

    including direction of joining investigation.

    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 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 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 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 he makes an

    56

    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 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 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 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 of

    section 438 Cr.P.C.     It is also contrary to Article 21 of the

    57

    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

    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 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 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 by the test of fairness and reasonableness

    which is implicit in Article 21. If the legislature itself

    were to impose an 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

    58

    unreasonable limitation on the individual's right 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

    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 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 of a

    presumption as salutary 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

    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 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 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

    59

    conditions upon a free discretion entrusted 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 free hand."

    xxx           xxx              xxx

    "The concern of the courts generally is to preserve

    their discretion without meaning to abuse it. It will be

    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

    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

    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.

    60

    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 by way of the grant

    of anticipatory bail is curtailed when the anticipatory bail

    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.

    SCOPE AND AMBIT OF ANTICIPATORY BAIL:

    118. A good deal of misunderstanding with regard to the ambit

    and scope of section 438 Cr.P.C. could have been avoided in case

    the Constitution Bench decision of this court in Sibbia's case

    (supra) was correctly understood, appreciated and applied

    119. This Court in the Sibbia'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.

    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.

    61

    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."

    Powers are discretionary to be exercised in light of

    the circumstances of each case.

    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 conditions should be imposed on the

    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

    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 Code and has

    invited suggestions from various quarters. Reference is made in

    this Article to the 41st 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

    62

    bail even when there are reasonable 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 Kumar v. State of U.P.

    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

    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

    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 their long training

    and experience they are ideally suited to do. In any event, this is

    63

    the legislative mandate which we are bound to respect and

    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

    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

    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

    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.

    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

    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

    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

    anticipatory bail, a balance has to be struck

    between two factors namely, no prejudice should be

    64

    caused to the free, fair and full investigation and

    there should be prevention of harassment,

    humiliation and unjustified detention of the

    accused;

    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

    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

    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

    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.

    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 pray for

    65

    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 judges of the

    superior courts. In consonance with the legislative 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

    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. 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.

    66

    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 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

    1)      Direct the accused to join investigation and only

    when the accused does not cooperate with the

    investigating agency, then only the accused be

    2)     Seize either the passport or such other related

    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;

    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 undertaking

    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.

    6)        Bank accounts be frozen for small duration

    during investigation.

    67

    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 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 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

    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 officers,

    police officers and investigating officers so that they can properly

    comprehend the importance of personal liberty vis-`-vis social

    68

    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 periodically

    evaluated on the basis of the cases decided by them. In case,

    they have not been able to maintain 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 must

    ensure that grant or refusal of bail is 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 Cr.P.C. A

    number of judgments have been referred to by the learned

    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

    anticipatory bail should leave it to the regular court to deal with

    69

    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

    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 it".

    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

    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 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

    70

    135. The ratio of the judgment of the Constitution Bench in

    Sibbia's case (supra) perhaps was not brought to the notice of

    their Lordships who had decided the cases of 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. State of Bihar and Another (supra).

    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

    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 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

    71

    and discretion conferred by the legislature to a rigorous code

    of self-imposed 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 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

    Young v. Bristol Aeroplane Company Limited (1994) All ER

    293 the House of Lords observed that `Incuria' 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

    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.

    72

    "......... In Halsbury's Laws of England (4th Edn.)

    Vol. 26: 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 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) 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

    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

    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.

    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:

    73

    "The rule of per incuriam can be applied where a

    court 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 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, 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.

    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

    SCC 86 was per incuriam and observed as under:

    "...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 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."

    74

    144. In R. Thiruvirkolam v.            Presiding Officer and

    Another (1997) 1 SCC 9 a two Judge Bench of this Court

    observed that the question is whether it was bound to accept

    the decision rendered in Gujarat Steel Tubes Ltd. v.

    Mazdoor Sabha (1980) 2 SCC 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 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 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

    Kalyani, which is the binding authority on the

    point."

    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 of their doubts about its correctness.

    75

    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 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) 10 SCC 1 again reiterated

    the clear position of law that by virtue of Article 141 of the

    Constitution, the judgment of the Constitution Bench in State

    of Karnataka and Others v. Umadevi (3) and Others (2006)

    4 SCC 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

    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 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 ethos

    and breach of discipline have grave impact on the

    76

    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 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."

    148. In   Subhash    Chandra     and    Another    v.    Delhi

    Subordinate Services Selection Board and Others (2009)

    15 SCC 458, this court again reiterated the settled legal

    position that Benches of lesser strength are bound by the

    judgments of 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

    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 Shekhar Rao v. Seth G.S.

    Medical College (1990) 3 SCC 139 and E.V.

    Chinnaiah v. State of A.P. (2005) 1 SCC 394.

    Marri Chandra Shekhar Rao (supra) had been

    followed by this Court in a large number of

    decisions    including   the    three-Judge   Bench

    decisions. S. Pushpa (supra) therefore, could not

    have ignored either Marri Chandra Shekhar Rao

    77

    (supra) or other decisions following the same only

    on the basis of an administrative circular issued or

    otherwise and more so when the constitutional

    scheme as contained 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 v. Dayanand and

    Others (2008) 10 SCC 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 analysis of English and Indian Law clearly 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,

    judgments mentioned in paragraphs 135 and 136 are by two

    or three judges of this court.   These judgments have clearly

    ignored a 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.

    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

    78

    proper course would be to request Hon'ble the Chief Justice 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 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 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 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 of in

    terms of the aforementioned observations.

    79

    ...............................................J.

    (Dalveer Bhandari)

    ..............................................J.

    (K.S. Panicker Radhakrishnan)

    New Delhi;

    December 2, 2010

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