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PETITIONER: GURBAKSH SINGH SIBBIA ETC.

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT09/04/1980

BENCH: CHANDRACHUD, Y.V. ((CJ) BENCH: CHANDRACHUD, Y.V. ((CJ) BHAGWATI, P.N. UNTWALIA, N.L. PATHAK, R.S. REDDY, O. CHINNAPPA (J)

CITATION:  1980 AIR 1632            1980 SCR  (3) 383  1980 SCC  (2) 565  CITATOR INFO :  R          1982 SC 149  (259)  E&R        1985 SC 969  (6,8,12)

ACT:      Bail-Anticipatory  Bail-Section  438  of  the  Code  of Criminal Procedure  Code, 1973  (Act 2  of 1974),  Scope of- Judicial   balancing    of   personal    liberty   and   the investigational powers of the Police, explained.

HEADNOTE:      The appellant  herein, Sri  Gurbaksh Singh Sibbia was a Minister of Irrigation and Power in the Congress Ministry of the Government  of Punjab.  Grave allegations  of  political corruption  were  made  against  him  and  others  whereupon applications were  filed in  the High  Court of  Punjab  and Haryana under  section 438  of the  Criminal Procedure Code, praying that  the appellants  be directed  to be released on bail, in the event of their arrest on the aforesaid charges. Considering the  importance of  the matter, a learned single Judge referred  the applications  to a  Full Bench, which by its judgment dated September, 13, 1977 dismissed them, after summarising,  what   according  to  it  is  the  true  legal position, of  s. 438 of the Code of Criminal Procedure, 1973 (Act 2 of 1974) thus:           (1)     The  power  under  Section  438,  Criminal                Procedure  Code,   is  of  an  extra-ordinary                character and  must be exercised sparingly in                exceptional cases only.           (2)   Neither Section  438 nor any other provision                of the  Code authorises  the grant of blanket                anticipatory  bail   for  offences   not  yet                committed or  with regard  to accusations not                so far levelled.           (3)  The said power is not unguided or uncanalised                but  all   the  limitations  imposed  in  the                preceding Section  437, are  implicit therein                and must be read into Section 438.           (4)   In addition  to the limitations mentioned in                Section 437,  the petitioner  must make out a

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              special case for the exercise of the power to                grant anticipatory bail.           (5)  Where a legitimate case for the remand of the                offender to  the police custody under Section                167(2) can  be made  out by the investigating                agency  or   a  reasonable  claim  to  secure                incriminating   material   from   information                likely to be received from the offender under                Section 27  of the  Evidence Act  can be made                out, the  power under  Section 438 should not                be exercised.           (6)   The discretion  under Section  438 cannot be                exercised with  regard to offences punishable                with death  or imprisonment  for life  unless                the Court  at that  very stage  is  satisfied                that such  a charge  appears to  be false  or                groundless. 384           (7)   The larger  interest of the public and State                demand that  in serious  cases like  economic                offences involving  blatant corruption at the                higher rungs  of the  executive and political                power, the  discretion under  Section 438  of                the Code should not be exercised; and           (8)  Mere general allegations of mala fides in the                petition are  inadequate. The  court must  be                satisfied on  materials before  it  that  the                allegations of mala fides are substantial and                the  accusation   appears  to  be  false  and                groundless. The argument  that the  appellants were men of substance and position who  were hardly  likely to  abscond and  would  be prepared willingly  to face  trial was  rejected by the Full Bench with  the  observation  that  to  accord  differential treatment to  the appellants on account of their status will amount to negation of the concept of equality before the law and that  it could  hardly be  contended that  every man  of status, who  was intended  to be charged with serious crimes including the one under section 409 was punishable with life imprisonment, "was  entitled to  knock at  the door  of  the Court for anticipatory bail". The possession of high status, according to  the Full  Bench, is  not  only  an  irrelevant consideration for  granting anticipatory  bail, but  is,  if anything, an  aggravating circumstance. Hence the appeals by special leave.      The appellants  contended: (a)  The power  conferred by section 438  to grant  anticipatory bail  is "not limited to the contigencies"  summarised by  the High  Court;  (b)  The power to  grant anticipatory  bail ought  to be  left to the discretion of  the Court  concerned, depending  on the facts and circumstances  of each  particular case;  (c) Since  the denial of  bail amounts  to deprivation of personal liberty; Courts should  lean against  the imposition  of  unnecessary restrictions on  the scope  of Section  438,  when  no  such restrictions are  imposed by the legislature in the terms of that section (d) Section 438 is a procedural provision which is concerned  with the personal liberty of an individual who has not been convicted of the offence in respect of which he seeks bail  and who  must be  presumed to  be innocent.  The validity of that section must accordingly be examined by the test of fairness and which is implicit in Article 21. If the legislature  itself   were   to   impose   an   unreasonable 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

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unreasonable limitation  on the individual’s right to obtain an order  of anticipatory  bail. Imposition  of an unfair or unreasonable limitation  would be  violative of  Article  21 irrespective of  whether it  is imposed by legislation or by judicial decision.      Allowing the appeals in part, the Court, ^      HELD: 1. The society has a vital stake in both of these interests namely,  personal liberty  and the investigational power of the police, though their relative importance at any given time  depends upon  the complexion  and restraints  of political conditions.  The  Court’s  task  is  how  best  to balance these  interests  while  determining  the  scope  of section 438 of the Code of Criminal Procedure, 1973. [393 C- D]      2. The  High Court  and the  Court of Session should be left to  exercise their  jurisdiction under section 438 by a wise and careful use of their discretion 385 which by  their  long  training  and  experience,  they  are ideally suited  to do.  The ends  of justice  will be better served by  trusting these  courts to  act objectively and in consonance with principles governing the grant of bail which are recognised  over the  years, than  by divesting  them of their discretion  which the  legislature has  conferred upon them,  by   laying  down   inflexible   rules   of   general application. It  is customary,  almost chronic,  to  take  a statute as  one finds it on the ground 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. [417 B-D]      3. Section  438(1) of  the Code  lays down  a condition which has  to be  satisfied before  anticipatory bail can be granted. The  applicant must  show that  he has  "reason  to believe" that he may be arrested for a non-bailable offence. The use of the expression "reason to believe" shows that the belief that the applicant may be so arrested must be founded on reasonable  grounds. Mere  ’fear’ is  not  ’belief’,  for which reason it is not enough for the applicant to show that he has  some sort  of a  vague apprehension that some one is going to  make an  accusation against  him, in  pursuance of which he may be arrested. The grounds on which the belief of the applicant  is based  that he  may be arrested for a non- bailable offence,  must be  capable of being examined by the court objectively,  because it  is then alone that the court can determine  whether the  applicant has  reason to believe that he  may be  so  arrested.  Section  438(1),  therefore, cannot  be  invoked  on  the  basis  of  vague  and  general allegations, as  if to  arm oneself  in perpetuity against a possible arrest.  Otherwise, the  number of applications for anticipatory bail  will be  as large,  as, at  any rate, the adult populace.  Anticipatory bail is a device to secure the individual’s liberty;  it  is  neither  a  passport  to  the commission of  crimes nor a shield against any and all kinds of accusation, likely or unlikely. [417 E-H, 418 A]      Secondly, if  an application  for anticipatory  bail is made to the High Court or the Court of Session it must apply its own  mind to  the question and decide whether a case has been made  out for granting such relief. It cannot leave the question for  the decision of the Magistrate concerned under Section 437  of the  Code, as  and when  an occasion arises.

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Such a  course will  defeat the  very object of Section 438. [418 A-B]      Thirdly, the  filing of  a First  Information Report is not a condition precedent to the exercise of the power under Section 438.  The imminence  of a likely arrest founded on a reasonable belief can be shown to exist even if an F.I.R. is not yet filed. [418 B-C]      Fourthly, anticipatory  bail can  be granted even after an F.I.R.  is filed,  so long  as the applicant has not been arrested. [418 C]      Fifthly,  the  provisions  of  Section  438  cannot  be invoked after  the arrest  of  the  accused.  The  grant  of "anticipatory bail"  to  an  accused  who  is  under  arrest involves a  contradiction in terms, in so far as the offence or offences  for which  he is arrested, are concerned. After arrest, the  accused must  seek his remedy under Section 437 or Section  439 of  the Code,  if he wants to be released on bail in  respect of  the offence or offences for which he is arrested. [418 C-E] 386      4. However,  a "blanket  order"  of  anticipatory  bail should not  generally be  passed. This  flows from  the very language of the section which requires the appellant to show that he  has "reason  to believe" that he may be arrested. A belief can  be said to be founded on reasonable grounds only if there  is something  tangible to  go by  on the  basis of which it  can be said that the applicant’s apprehension that he may  be arrested  is genuine.  That is  why, normally,  a direction should  not issue  under  Section  438(1)  to  the effect  that   the  applicant  shall  be  released  on  bail "whenever arrested  for which ever offence whatsoever". That is what  is meant by a ’blanket order’ of anticipatory bail, an order  which serves  as a blanket to cover or protect any and every  kind of  allegedly unlawful activity, in fact any eventuality, likely or unlikely regarding which, no concrete information  can   possibly  be  bad.  The  rationale  of  a direction  under   Section  438(1)  is  the  belief  of  the applicant founded  on reasonable  grounds  that  he  may  be arrested for  a non-bailable  offence. It  is unrealistic to expect the  applicant to  draw up  his application  with the meticulousness of a pleading in a civil case and such is not requirement of  the section.  But specific  events and facts must be  disclosed by  the applicant  in order to enable the court to  judge of  the reasonableness  of his  belief,  the existence of  which is  the sine  qua non of the exercise of power conferred by the section. [418 E-H, 419 A]      Apart from  the fact  that the  very  language  of  the statute compels  this construction,  there is  an  important principle involved  in the  insistence that  facts,  on  the basis of  which a  direction under Section 438(1) is sought, must be  clear and  specific, not  vague and  general. It is only by  the observance  of that  principle that  a possible conflict between  the right  of an individual to his liberty and the  right of  the police  to  investigate  into  crimes reported to them can be avoided. [419 A-C]      A blanket  order of anticipatory bail is bound to cause serious interference with both the right and the duty of the police in the matter of investigation because, regardless of what kind  of offence  is alleged  to have been committed by the applicant  and when,  an order of bail which comprehends allegedly unlawful  activity of  any description whatsoever, will prevent the police from arresting the applicant even if the commits,  say, a  murder in  the presence of the public. Such an  order can  then become a charter of lawlessness and weapon to  stifle prompt  investigation into  offences which

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could not  possibly be predicated when the order was passed. Therefore, the  court which  grants anticipatory  bail  must take care  to specify  the offence or offences in respect of which alone  the order  will be  effective. The power should not be exercised in a vacuum. [419 C-E]      5. An  order of bail can be passed under section 438(1) of the  Code without  notice to  the Public  Prosecutor. But notice  should   issue  to  the  public  prosecutor  or  the Government Advocate  forthwith  and  the  question  of  bail should  be  re-examined  in  the  light  of  the  respective contentions of  the parties.  The ad-interim  order too must conform to  the requirements  of the  section  and  suitable conditions should  be imposed  on the applicant even at that stage. [419 E-F]      6. Equally  the operation  of  an  order  passed  under section 438(1)  need not  necessarily be limited in point of time. The  Court may,  if there  are reasons  for doing  so, limit the  operation of  the order  to a  short period until after the  filing of  an F.I.R.  in respect  of  the  matter covered by  the order.  The applicant  may in  such cases be directed to obtain an order of bail under Section 437 or 439 of the  Code within  a reasonably  short  period  after  the filing of the F.I.R. 387 as aforesaid. But this need not be followed as an invariable rule. The  normal rule  should be not to limit the operation of the order in relation to a period of time. [419 F-H]      7. Bail  is  basically  release  from  restraint,  more particularly release from the custody of the police. The act of arrest directly affects freedom of movement of the person arrested by  the police, and speaking generally, an order of bail gives  back to  the accused  that freedom  on condition that he will appear to take his trial. Personal recognizance suretyship bonds  and such other modalities are the means by which an  assurance is  secured from the accused that though he has been released on bail, he will present himself as the trial of  offence or offences of which he is charged and for which he was arrested. [397 E-G]      The distinction  between an  ordinary order of bail and an order  of anticipatory bail is that whereas the former is granted after  arrest and  therefore means  release from the custody of the police, the latter is granted in anticipation of arrest  and is  therefore effective at the very moment of arrest. Police  custody  is  an  inevitable  concomitant  of arrest for  non-bailable offences.  An order of anticipatory bail constitutes,  so to  say, an  insurance against  police custody following  upon arrest  for offence  or offences  in respect of which the order is issued. In other words, unlike a post-arrest  order of  bail,  it  is  a  pre-arrest  legal process which  directs that if the person in whose favour it is issued  is  thereafter  arrested  on  the  accusation  in respect of  which the  direction  is  issued,  he  shall  be released on  bail. Section  46(1) of  the Code  of  Criminal Procedure which  deals with  how arrests  are  to  be  made, provides that  in making  the arrest  the police  officer or other person  making the  arrest "shall  actually  touch  or confine the  body of the person to be arrested, unless there be a  submission to  the  custody  by  word  or  action".  A direction  under   section  438   is  intended   to   confer conditional immunity  from this ’touch’ or confinement. [397 G-H. 398 A-B]      8. No one can accuse the police of possessing a healing touch nor  indeed does  anyone have  misgivings in regard to constraints consequent  upon confinement  in police custody. But, society  has come  to accept  and acquiesce in all that

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follows upon  a police  arrest  with  a  certain  amount  of sangfroid, in  so  far  as  the  ordinary  rut  of  criminal investigation is  concerned. It  is  the  normal  day-to-day business of  the police  to investigate into charges brought before them and, broadly and generally, they have nothing to gain, not  favours  at  any  rate,  by  subjecting  ordinary criminal  to   needless  harassment.  But  the  crimes,  the criminals and  even the  complaints can occasionally possess extraordinary features.  When the  even flow of life becomes turbid, the  police can  be  called  upon  to  inquire  into charges arising  out of  political antagonism.  The powerful processes  of   criminal  law  can  then  be  perverted  for achieving   extraneous    ends.    Attendant    upon    such investigations, when  the police  are not free agents within their sphere  of duty,  is a  great amount of inconvenience, harassment and  humiliation. That  can even take the form of the  parading   of  a   respectable  person  in  hand-cuffs, apparently on  way to  a court  of justice. The foul deed is done when  an adversary  is exposed  to social  ridicule and obloquy, no  matter when and whether a conviction is secured or is  at  all  possible.  It  is  in  order  to  meet  such situations, though  not limited to these contingencies, that the power to grant anticipatory bail was introduced into the Code of 1973. [398 C-F]      9. 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 388 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. [401 A-C]      The legislature conferred a wide discretion on the High Court and  the Court  of Session  to grant anticipatory bail because  it  evidently  felt,  firstly,  that  it  would  be difficult  to   enumerate   the   conditions   under   which anticipatory bail  should  or  should  not  be  granted  and secondly; because  the intention  was to  allow  the  higher courts in  the echelon  a somewhat free hand in the grant of relief in  the nature  of anticipatory  bail. That  is  why, departing from  the terms  of Sections  437 and 439, Section 438(1) uses the language that the High Court or the Court of Session "may, if it thinks fit" direct that the applicant be released on  bail. Sub-section  (2)  of  Section  438  is  a further and  clearer manifestation  of the  same legislative intent  to  confer  a  wide  discretionary  power  to  grant anticipatory bail.  It provides  that the  High Court or the Court of Session, while issuing a direction for the grant of anticipatory bail,  "may include  such  conditions  in  such directions in the light of the facts of the particular case, as it  may think fit" including the conditions which are set out in  clauses (i) to (iv) of sub-section (2). The proof of legislative intent  can best  be found in the language which the  legislature   uses.  Ambiguities   can  undoubtedly  be resolved by resort to extraneous aids but words, as wide and explicit as  have been  used in  Section 438,  must be given their full  effect, especially  when to refuse to do so will result in  undue impairment of the freedom of the individual and the presumption of innocence. It has to be borne in mind that anticipatory  bail is  sought  when  there  is  a  mere

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apprehension of  arrest on the accusation that the applicant has committed  a non-bailable  offence. A person who has yet to lose  his freedom  by being  arrested asks for freedom in the event  of arrest.  That is  the stage  at  which  it  is imperative to protect his freedom, in so far as one may, and to give full play to the presumption that he is innocent. In fact, the  stage at  which anticipatory  bail  is  generally sought brings  about its  striking  dissimilarity  with  the situation  in  which  a  person  who  is  arrested  for  the commission of  a non-bailable offences asks for bail. In the latter situation,  adequate data  is available to the Court, or can  be called  for by  it, in  the light of which it can grant or  refuse relief  and while granting it, modify it by the imposition  of all or any of the conditions mentioned in Section 437. [404 A-G]      10. The amplitude of judicial discretion which is given to the  High Court and the Court of Sessions, to impose such conditions as they may think fit while granting anticipatory bail, should  not be cut down, by a process of construction, by reading  into the  statute conditions which are not to be found therein like those evolved by the High Court. The High Court and  the Court  of Session to whom the application for anticipatory bail  is made  ought to  be left  free  in  the exercise of  their judicial discretion to grant bail if they consider it  fit so  to  do  on  the  particular  facts  and circumstances of the case and on such conditions as the case may warrant.  Similarly, they  must be  left free  to refuse bail if  the  circumstances  of  the  case  so  warrant,  on considerations similar  to those mentioned in Section 437 or which are  generally considered to be relevant under Section 439 of the Code. [405 B-D] 389      Generalisations on matters which rest on discretion and the attempt  to discover  formulae of  universal application when facts  are bound  to differ from case to case frustrate the very  purpose of conferring discretion. No two cases are alike on  facts and  therefore, Courts  have to be allowed a little  free  play  in  the  joints  if  the  conferment  of discretionary power  is to  be meaningful.  There is no risk involved in  entrusting a  wide discretion  to the  Court of Session and  the High  Court in  granting anticipatory  bail because,  firstly   these  are   higher  courts   manned  by experienced persons,  secondly their order are not final but are open  to appellate  or revisional scrutiny and above all because, discretion  has always  to be  exercised by  courts judicially and  not according  to whim, caprice or fancy. On the other hand, there is a risk in foreclosing categories of cases in which anticipatory bail may be allowed because life throws  up   unforeseen   possibilities   and   offers   new challenges. Judicial  discretion has to be free enough to be able to  take these  possibilities in its stride and to meet these challenges. [405 D-G]      Hyman and Anr. v. Rose, 1912 A.C. 623; referred to      11. 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, this Court cuts 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

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and when  it arises.  Therefore, even  if this Court 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  guidelines 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 the Courts generally  is to  preserve their  discretion  without meaning to  abuse it.  It  will  be  strange  if  the  Court exhibits concern  to stultify  the discretion conferred upon the Courts by law. [406 D-H]      Discretion, therefore,  ought to be permitted to remain in the domain of discretion, to be exercised objectively and open to  correction by  the higher  courts.  The  safety  of discretionary power  lies  in  this  twin  protection  which provides a safeguard against its abuse. [407 F-G]      12. It  is true that the functions of judiciary and the police are  in a sense complementary and not overlapping. An order of  anticipatory bail does not in any way, directly or indirectly,  take  away  from  the  police  their  right  to investigate into  charges made  or to  be made  against  the person  released   on  bail.  In  fact,  two  of  the  usual conditions incorporated  in a direction issued under section 438(1) are  those recommended in Sub-section (2)(i) and (ii) which require  the applicant  to co-operate  with the police and to  assure that  he shall  not tamper with the witnesses during and  after the  investigation. While  granting relief under Section  438(1), appropriate conditions can be imposed under Section  438(2), so  as  to  ensure  an  uninterrupted investigation. One of 390 such conditions  can even be that in the event of the police making out  a case of a likely discovery under Section 27 of the Evidence  Act, the  person released  on  bail  shall  be liable to  be taken  in police  custody for facilitating the discovery. Besides,  if and when the occasion arises, it may be possible  for the  prosecution to  claim the  benefit  of Section 27  of the  Evidence Act in regard to a discovery of facts made  in pursuance of information supplied by a person released on bail. [409 D, 410 A-D]      King Emperor v. Khwaja Nazir Ahmed, 71 I.A., 203, State of U.P.  v. Deoman  Upadhyaya, [1961]  1 S.C.R.  p. 14 @ 26; referred to.      13. In Balchand Jain v. State of Madhya Pradesh, [1977] 2 SCR  52, this Court was considering whether the provisions of Section 438 relating to anticipatory bail stand overruled or repealed  by virtue  of  Rule  184  of  the  Defence  and Internal Security  of India  Rules, 1971 or whether both the provisions can  by rule  of harmonious  interpretion,  exist side by  side. It  was in  that context that it was observed that "As  section 438  immediately follows Section 437 which is the  main provision  for bail  in respect of non-bailable offences, it  is manifest  that the conditions imposed by s. 437(1) are implicitly contained in Section 438 of the Code". These  observations   regarding  the  nature  of  the  power conferred by  section 438 and regarding the question whether the conditions  mentioned in Section 437 should be read into section 438 cannot, therefore be treated as the ratio of the decision. [413 C-D, E]      The power  conferred by  section 438  is of  an  "extra ordinary" character  only  in  the  sense  that  it  is  not

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ordinarily resorted  to like the power conferred by sections 437 and 439. [413 E-F]      Bal Chand  Jain v.  State of  M.P., [1977] 2 S.C.R. 52, distinguished.      14. Since  denial of  bail amounts  to  deprivation  of personal  liberty,   the  Court   should  lean  against  the imposition of  unnecessary  restrictions  on  the  scope  of section 438,  especially when no such restrictions have been imposed by  the legislature  in the  terms of  that section. Section 438  is a  procedural provision  which is  concerned with the personal liberty of the individual, who is entitled to the  benefit of  the presumption of innocence since he is not, on  the date  of his application for anticipatory bail, convicted of  the offence in respect of which he seeks bail. An over-generous  infusion  of  constraints  and  conditions which are  not to  be found  in Section  438  can  make  its provisions constitutionally  vulnerable since  the right  to personal freedom cannot be made to depend on compliance with unreasonable restrictions. [413 F-H, 414 A]      Maneka Gandhi  v. Union  of India, [1978] 1 S.C.C. 248; applied.      15. In  regard to  anticipatory bail,  if the  proposed accusation appears  to stem  not from  motives of furthering the ends  of justice  but from  some ulterior  inotive,  the object being to injure and humiliate the applicant by having him arrested a direction for the release of the applicant on bail in the event of his arrest would generally, be made. On the  other  hand,  if  it  appears  likely  considering  the antecedents of  the applicant,  that taking advantage of the order of  anticipatory bail  he will flee from justice, such an order  would not  be made.  But  the  converse  of  these propositions is  not necessarily  true. That  is to  say  it cannot be  laid down as an inexorable rule that anticipatory bail  cannot  be  granted  unless  the  proposed  accusation appears to be actuated by mala fides; 391 and, equally,  that anticipatory  bail must  be  granted  if there is  no fear that the applicant will abscond. There are several other  considerations, too numerous to enumerate the combined effect  of which  must weigh  with the  court while granting or  rejecting anticipatory  bail.  The  nature  and seriousness of  the proposed  charges, the  context  of  the events likely  to lead  to the  making  of  the  charges,  a reasonable possibility of the applicant’s presence not being secured  at   the  trial,  a  reasonable  apprehension  that witnesses will be tampered with and "the larger interests of the public  or the  state" are  some of  the  considerations which the  court has  to keep  in  mind  while  deciding  an application for anticipatory bail. [415 G-H, 416 A-C]      State v.  Captain Jagjit  Singh, [1962]  3 S.C.R.  622, followed.

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal Appeals Nos. 335, 336,  337, 338, 339, 346, 347, 350, 351, 352, 365, 366, 367, 383,  396, 397, 398, 399, 406, 415, 416, 417, 418, 419, 420, 430,  431, 438, 439, 440, 447, 448, 449, 463, 473, 474, 477, 498, 506, 508, 512, 511 of 1977, 1, 15, 16, 38, 53, 69, 70 of  1978, 469, 499 of 1977, 40, 41, 81, 82, 98, 109, 130, 141, 142, 145, 149, 153 and 154 of 1978.                             AND      Special Leave  Petitions (Criminal) Nos. 260, 272, 273, 274, 383, 388 & 479 of 1978.

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    Appeals by  Special leave from the Judgments and Orders dated 13-9-77,  13-9-77, 13-9-77, 15-9-77, 13-9-77, 21-9-77, 19-9-77, 23-9-77,  23-9-77, 23-9-77, 26-9-77, 26-9-77, 30-9- 77, 7-10-77, 16-9-77 9-9-77, 20-9-77, 5-10-77, 20-10-77, 26- 9-77, 20-10-77,  20-10-77, 19-10-77, 24-10-77, 25-10-77, 14- 9-77, 24-10-77,  2-11-77, 2-11-77,  3-11-77, 2-9-77, 7-9-77, 2-9-77, 9-11-77, 22-11-77, 23-11-77, 24-11-77, 13-12-77, 11- 11-77, 23-11-77,  14-12-77, 13-12-77, 20-12-77, 3-1-78, 4-1- 78, 5-1-78,  16-1-78, 18-1-78,  30-1-78, 25-1-78,  18-11-77, 13-12-77, 10-1-78,  13-1-78, 1-2-78,  1-2-78, 8-2-78, 21-12- 77, 1-3-78,  3-3-78, 3-3-78, 10-3-78, 8-3-78, 20-3-78, 17-3- 78, 15-2-78, 17-2-78, 17-2-78, 24-1-78, 14-3-78, 14-3-78 and 27-3-78 of  the Punjab  and Haryana High Court in Crl. Misc. Nos. 3753 M, 3719 M, 3720 M, 3916 M, 3718 M, 3793 M, 3565 M, 3892 M, 3595 M, 3596 M, 4359 M, 3563 M, 3484 M, 4627 M, 3893 M, 3894  M, 3587  M, 4540 M, 4908 M, 3031 M, 4934 M, 4916 M, 4888 M, 4964 M, 4992 M, 3688 M, 4907 M, 5176 M, 5177 M, 5197 M, 3564  M, 3716  M, 3717 M, 5344 M, 5558 M, 5079 M, 5613 M, 5905 M,  5254 M,  5253 M, 5919 M, 5907 M, 6005 M of 1977, 45 M, 68  M, 102 M, 246 M of 1978, 6114 M of 1977, 462 M, 248 M of 1978,  5240 M,  5892 M  of 1977, 19/78, 956/77, 104 M/78, 104 M/78,  605/78, 5995 M/77, 941 M/78, 904 M/78, 1005 M/78, 1137 M/78, 819 M/78, 1260 M/78, 866 M/78 392 & 541  M/78, 4897  M/77, 4758  M/77, 364 M/78, 1167/78, 1168 M/78 and 1381 M/78.      M. C.  Bhandare, Gobind Das, K. S. Thapar, Dilip Singh, Mrs. Sunanda  Bhandare, A.  N. Karkhanis,  Deepak Thapar and Miss Malini  for the  Appellants in  Crl. A.  Nos. 335, 365, 430, 431,  506, 508, 499/77, 150, 141, 142, 153, 154 and for the Petitioners in SLPs 272-274 of 1978.      Frank Anthony,  V. C.  Mahajan, O.  P. Sharma and R. C. Bhatia   for the  Appellants in  Crl. A. Nos. 336, 337, 338, 350, 396,  397-399, 473,  474/77 and  1, 15, 16, 17, 69, 70, 81, 82, 98 and 149 and 109 of 1978.      Harjinder Singh  for the  Appellant in  Crl. A.  339 of 1977.      B. S.  Bindra, S.  M. Ashri and Mrs. Lakshmi Arvind for the Appellants  in Crl.  As. Nos.  348, 366,  415, 420, 477, 511, 512, 469/77 and 145 of 1978.      P. R.  Mridul, H.  K. Puri, Aruneshwar Prasad and Vivek Sethi for the Appellant in Crl. A No. 346 of 1977.      L. N.  Sinha, R.  P. Singh,  L. R. Singh, Suman Kapoor, Sukumar Sahu  and M. C. Bhandare, P. P. Singh and R. K. Jain for the  Appellants in  Crl. A.  Nos. 351, 352, 406, 438-40, 463/77.      S. K. Jain for the Appellant in Crl. A. No. 53/78.      V. M.  Tarkunde, M.  M. L. Srivastava, R. Satish and E. C. Agrawala for the Appellant in Crl. A. Nos. 367/77 and SLP 383/78.      V. C.  Mahajan, Harbhagwan  Singh, S.  K. Mehta,  K. R. Nagaraja and  P. N.  Puri for  the Appellant in Crl. A. Nos. 383/78 and 498/77.      K. K. Mohan for the Petitioner in SLP 260/78.      A. K.  Sen and Rathin Dass for the Appellant in Crl. A. Nos. 40, 41/78.      M. M. L. Srivastava for the Petitioner in SLP 388/78.      L. M.  Singhvi and N. S. Das Behl for the Appellants in Crl. A. No. 38/78 and for the Petitioner in SLP 479/78.      Soli. J.  Sorabjee,  Addl.  Sol.  Genl.  Bishamber  Lal Khanna, Hardev  Singh, R.  S. Sodhi  and B. B. Singh for the Appellants in  Crl. As.  Nos. 477-449/77  and respondents in Crl. A.  Nos. 335-339,347,350,  352,366,367,388,396-398,406, 415-420,438-440,463,473,474,477, 498,  511/77, 1,  15-17/78, 469, 510/77,  109/78 and  for the  Petitioners in  SLP  Nos.

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388/78, Crl. A. No. 98/78 & SLP 260/78. 393      Soli. J. Sorabjee Addl. Sol. Genl., Thakur Naubat Singh Adv. Genl.  Haryana, S.  N. Anand and R. N. Sachthey for the Respondents, in Crl. A. Nos. 365, 430, & 431/77, 508, 499/78 and 38, 141 and 142/78.      M. M. Kshatriya and G. S. Chatterjee for Respondents in Crl. A. Nos. 40 and 41 of 1978.      M. M. Kshatriya and G. S. Chatterjee for Respondents in Crl. A. 346/77.      J. K.  Gupta, B.  R. Agarwala  and Janendra Lal for the Vice-Chancellor, Punjab University in Crl. A. No. 346/77.      The Judgment of the Court was delivered by      CHANDRACHUD,  C.J.-These   appeals  by   Special  Leave involve a  question of  great public  importance bearing, at once, on  personal liberty and the investigational powers of the police.  The society  has a vital stake in both of these interests, though  their relative  importance at  any  given time depends upon the complexion and restraints of political conditions. Our task in these appeals in how best to balance these interests  while determining  the scope of Section 438 of the Code of Criminal Procedure, 1973 (Act No. 2 of 1974).      Section 438  provides for the issuance of direction for the grant  of bail  to a  person who  apprehends arrest.  It reads thus:           "438. (1)  When any  person has  reason to believe      that he  may be  arrested on  an 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; and  that Court  may, if it thinks      fit, direct  that in the event of such arrest, he shall      be released on bail.           (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  think  fit,      including-           (i)   a  condition  that  the  person  shall  make                himself  available  for  interrogation  by  a                police officer as and when required;           (ii)  a  condition  that  the  person  shall  not,                directly or  indirectly, make any inducement,                threat or  promise to  any person  acquainted                with the facts of the case so 394                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)."      Criminal Appeal  No. 335  of 1975 which is the first of the many  appeals before  us, arises out of a judgment dated

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September 13,  1977 of  a Full  Bench of  the High  Court of Punjab and  Haryana. The  appellant  herein,  Shri  Gurbaksh Singh Sibbia,  was a Minister of Irrigation and Power in the Congress  Ministry   of  the  Government  of  Punjab.  Grave allegations of  political corruption  were made  against him and others  whereupon, applications  were filed  in the High Court of  Punjab and Haryana under Section 438, praying that the appellants  be directed  to be  released on bail, in the event of  their arrest on the aforesaid charges. Considering the  importance  of  the  matter,  a  learned  Single  Judge referred the  applications to  a Full  Bench, which  by  its judgment dated September 13, 1977 dismissed them.      The Code  of Criminal  Procedure, 1898  did not contain any specific  provision corresponding to the present Section 438. Under  the old  Code, there  was a  sharp difference of opinion amongst  the various  High Courts on the question as to whether courts had the inherent power to pass an order of bail in  anticipation of  arrest, the  preponderance of view being that  it  did  not  have  such  power.  The  need  for extensive amendments  to the  Code of Criminal Procedure was felt for  a long  time and  various suggestions were made in different quarters  in order to make the Code more effective and comprehensive.  The Law Commission of India, in its 41st Report dated September 24, 1969 pointed out the necessity of introducing a provision in the Code en- 395 abling the  High Court  and the  Court of  Session to  grant "anticipatory bail".  It observed  in paragraph  39.9 of its report (Volume I):           "39.9. 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.           We recommend the acceptance of this suggestion. We      are further  of the view that this special power should      be conferred  only on  the High  Court and the Court of      Session, and  that the  order should take effect at the      time of arrest or thereafter.           In order to settle the details of this suggestion,      the following  draft of  a new  section is  placed  for      consideration:                "497A. (1)  When any  person has a reasonable      apprehension that he would be arrested on an 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 Court  may, in its      discretion, direct  that in the event of his arrest, he      shall be released on bail.           (2)   A Magistrate taking cognizance of an offence

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    against that  person shall,  while taking  steps  under      section 204(1),  either issue  summons  or  a  bailable      warrant as  indicated in  the direction  of  the  Court      under sub-section (1).           (3)   if any  person in  respect of  whom  such  a      direction is  made is  arrested without  warrant by  an      officer in  charge of a police station on an accusation      of having com- 396      mitted that offence, and is prepared either at the time      of arrest  or at  any time while in the custody of such      officer to  give bail, such person shall be released on      bail."           We considered  carefully the  question  of  laying      down in  the statute  certain  conditions  under  which      alone anticipatory  bail could be granted. But we found      that  it   may  not   be  practicable  to  exhaustively      enumerate those  conditions; and  moreover, the  laying      down of  such conditions may be construed as prejudging      (partially at  any rate) the whole case. Hence we would      leave it  to the discretion of the court and prefer not      to fetter  such discretion  in the  statutory provision      itself. Superior  Courts  will,  undoubtedly,  exercise      their   discretion   properly,   and   not   make   any      observations in  the order  granting anticipatory  bail      which will  have a tendency to prejudice the fair trial      of the accused."      The suggestion  made by  the  Law  Commission  was,  in principle,  accepted   by  the   Central  Government   which introduced Clause  447 in  the Draft  Bill of  the  Code  of Criminal Procedure,  1970  with  a  view  to  conferring  an express power  on the High Court and the Court of Session to grant anticipatory bail. That Clause read thus:           "447. (1)  When any  person has  reason to believe      that he  would be  arrested on  an 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; and  that Court  may, if it thinks      fit, direct  that in the event of such arrest, he shall      be released on bail.           (2) 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)."      The Law  Commission, in paragraph 31 of its 48th Report (1972), made the following comments on the aforesaid Clause.           "31. 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 397      agree that  this would  be a useful addition, though we      must add that it is in very exceptional cases that such      a power should be exercised.           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,

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    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." Clause 447  of the  Draft Bill  of  1970  was  enacted  with certain modifications  and became Section 438 of the Code of Criminal Procedure,  1973 which  we have  extracted  at  the outset of this judgment.      The facility  which Section  438 affords  is  generally referred to  as ’anticipatory bail’, an expression which was used by  the Law  Commission in its 41st report. Neither the section nor  its marginal  note so  describes  it  but,  the expression ’anticipatory  bail’  is  a  convenient  mode  of conveying  that   it  is  possible  to  apply  for  bail  in anticipation of arrest. Any order of bail can, of course, be effective only  from the  time of  arrest because,  to grant bail, as  stated in  Wharton’s Law  Lexicon, is  to ’set  at liberty a  person arrested  or imprisoned, on security being taken for  his appearance’.  Thus, bail is basically release from restraint,  more particularly, release from the custody of the police. The act of arrest directly affects freedom of movement of  the person arrested by the police, and speaking generally, an  order of  bail gives back to the accused that freedom on  condition that he will appear to take his trial. Personal  recognisance,  suretyship  bonds  and  such  other modalities are  the means  by which  an assurance is secured from the  accused that  though he has been released on bail, he will  present himself at the trial of offence or offences of which  he is  charged and  for which he was arrested. The distinction between  an ordinary  order of bail and an order of anticipatory  bail is  that whereas the former is granted after arrest and therefore means release from the custody of the police,  the latter is granted in anticipation of arrest and is  therefore effective  at the  very moment  of arrest. Police custody  is an  inevitable concomitant  of arrest for non-bailable  offences.   An  order   of  anticipatory  bail constitutes, so  to say, an insurance against police custody following upon  arrest for offence or offences in respect of which the order is 398 issued. In  other words, unlike a post-arrest order of bail, it is  a pre-arrest  legal process which directs that if the person in  whose favour  it is issued is thereafter arrested on the  accusation in  respect of  which  the  direction  is issued, he  shall be  released on bail. Section 46(1) of the Code of  Criminal Procedure which deals with how arrests are to be  made, provides  that in making the arrest, the police officer or  other person  making the  arrest "shall actually touch or  confine the  body of  the person  to be  arrested, unless there  be a  submission to  the custody  by  word  or action". A direction under section 438 is intended to confer conditional immunity from this ’touch’ or confinement.      No one  can accuse  the police  of possessing a healing touch nor  indeed does  anyone have  misgivings in regard to constraints consequent  upon confinement  in police custody. But, society  has come  to accept  and acquiesce in all that follows upon  a police  arrest  with  a  certain  amount  of sangfroid, in  so  far  as  the  ordinary  rut  of  criminal investigation is  concerned. It  is  the  normal  day-to-day business of  the police  to investigate into charges brought before them and, broadly and generally, they have nothing to

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gain, not  favours  at  any  rate,  by  subjecting  ordinary criminals  to  needless  harassment.  But  the  crimes,  the criminals and even the complainants can occasionally possess extra-ordinary features.  When the even flow of life becomes turbid, the  police can  be  called  upon  to  inquire  into charges arising  out of  political antagonism.  The powerful processes  of   criminal  law  can  then  be  perverted  for achieving   extraneous    ends.    Attendant    upon    such investigations, when  the police  are not free agents within their sphere  of duty,  is a  great amount of inconvenience, harassment and  humiliation. That  can even take the form of the  parading   of  a   respectable  person   in  handcuffs, apparently on  way to  a court  of justice. The foul deed is done when  an adversary  is exposed  to social  ridicule and obloquy, no  matter when and whether a conviction is secured or is  at  all  possible.  It  is  in  order  to  meet  such situations, though  not limited to these contingencies, that the power to grant anticipatory bail was introduced into the Code of 1973.      Are we  right in  saying that  the power  conferred  by section 438  to grant  anticipatory bail  is "not limited to these contingencies"? In fact that is one of the main points of controversy  between the parties. Whereas it is argued by Shri M. C. Bhandare, Shri O. P. Sharma and the other learned counsel who  appear for  the appellants  that the  power  to grant anticipatory  bail ought  to be left to the discretion of  the   court  concerned,   depending  on  the  facts  and circumstances of  each particular  case, it is argued by the learned Additional  Solicitor General on behalf of the State Government that the grant of anticipatory bail should 399 at least  be conditional  upon the applicant showing that he is likely  to be arrested for an ulterior motive, that is to say, that  the proposed  charge  or  charges  are  evidently baseless and  are actuated  by mala fides. It is argued that anticipatory bail is an extra-ordinary remedy and therefore, whenever it  appears that the proposed accusations are prima facie  plausible,  the  applicant  should  be  left  to  the ordinary remedy  of applying  for bail  under Section 437 or Section 439, Criminal Procedure Code, after he is arrested.      Shri V. M. Tarkunde, appearing on behalf of some of the appellants, while  supporting the  contentions of  the other appellants, said  that since  the denial  of bail amounts to deprivation of  personal liberty,  court should lean against the imposition  of unnecessary  restrictions on the scope of Section 438,  when no  such restrictions  are imposed by the legislature in  the  terms  of  that  Section.  The  learned counsel added  a new  dimension to  the argument by invoking Article 21 of the Constitution. He urged that Section 438 is a procedural  provision which is concerned with the personal liberty of  an individual  who has not been convicted of the offence in  respect of  which he  seeks bail  and  who  must therefore be  presumed to  be innocent. 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 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.

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    The Full  Bench of  the Punjab  and Haryana  High Court rejected  the   appellants’  applications   for  bail  after summarising,  what   according  to  it  is  the  true  legal position, thus:           (1)  The  power   under  Section   438,   Criminal                Procedure  Code,   is  of  an  extra-ordinary                character and  must be exercised sparingly in                exceptional cases only;           (2)  Neither Section  438 nor  any other provision                of the  Code authorises  the grant of blanket                anticipatory  bail   for  offences   not  yet                committed or  with regard  to accusations not                so far levelled.           (3)  The said power is not unguided or uncanalised                but  all   the  limitations  imposed  in  the                preceding Section 400                437, are  implicit therein  and must  be read                into Section 438.           (4)  In addition  to the  limitations mentioned in                Section 437,  the petitioner  must make out a                special case for the exercise of the power to                grant anticipatory bail.           (5)  Where a legitimate case for the remand of the                offender to  the police custody under Section                167 (2)  can be made out by the investigating                agency  or   a  reasonable  claim  to  secure                incriminating   material   from   information                likely to be received from the offender under                Section 27  of the  Evidence Act  can be made                out, the  power under  Section 438 should not                be exercised.           (6)  The discretion  under Section  438 cannot  be                exercised with  regard to offences punishable                with death  or imprisonment  for life  unless                the court  at that  very stage  is  satisfied                that such  a charge  appears to  be false  or                groundless.           (7)  The larger  interest of  the public and State                demand that  in serious  cases like  economic                offences involving  blatant corruption at the                higher rungs  of the  executive and political                power, the  discretion under  Section 438  of                the Code should not be exercised; and           (8)  Mere general  allegation of mala fides in the                petition are  inadequate. The  court must  be                satisfied on  materials before  it  that  the                allegations of mala fides are substantial and                the  accusation   appears  to  be  false  and                groundless. It was  urged before the Full Bench that the appellants were men of  substance and  position who  were hardly  likely  to abscond and  would be prepared willingly to face trial. This argument was  rejected with  the observation  that to accord differential treatment to the appellants on account of their status will  amount to  negation of  the concept of equality before the  law and  that it  could hardly be contended that every man  of status,  who was  intended to  be charged with serious crimes,  including the  one under  Section 409 which was punishable  with life  imprisonment,  "was  entitled  to knock at  the door  of the court for anticipatory bail". The possession of  high status,  according to the Full Bench, is not  only   an   irrelevant   consideration   for   granting anticipatory  bail  but  is,  if  anything,  an  aggravating circumstance.

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    We find  ourselves unable to accept, in their totality, the submissions  of the learned Additional Solicitor General or the constraints which the 401 Full Bench  of the  High Court  has engrafted  on the  power conferred by  Section 438.  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 provisions 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. Though  the   right  to  apply  for  anticipatory  bail  was conferred for  the first time by Section 438, while enacting that provision  the legislature  was not  writing on a clean slate in  the sense  of taking  an unprecedented step, in so far as  the right  to apply  for bail  is concerned.  It had before it  two cognate  provisions of  the Code: Section 437 which deals with the power of courts other than the Court of Session and  the High  Court to  grant bail  in non-bailable cases and  Section 439 which deals with the "special powers" of the  High Court  and the Court of Session regarding bail. The whole  of Section  437  is  riddled  and  hedged  in  by restrictions on  the power  of certain courts to grant bail. That section reads thus :           "437. When  bail may  be taken  in  case  of  non-      bailable offence.  (1) When  any person  accused of  or      suspected of the commission of any non-bailable offence      is arrested  or detained  without warrant by an officer      in charge  of a police station or appears or is brought      before a  Court other  than the  High Court or Court of      Session, he  may be  released on bail, but he shall not      be so  released if  there appear reasonable grounds for      believing  that  he  has  been  guilty  of  an  offence      punishable with death or imprisonment for life :           Provided that the Court may direct that any person      under the age of sixteen years or any woman or any sick      or infirm person accused of such an offence be released      on bail :           Provided  further  that  the  mere  fact  that  an      accused person  may be required for being identified by      witnesses during  investigation shall not be sufficient      ground for  refusing to  grant bail  if he is otherwise      entitled  to   be  released   on  bail   and  gives  an      undertaking that  he shall  comply with such directions      as may be given by the Court.           (2) If  it appears to such officer or Court at any      stage of  the investigation,  inquiry or  trial as  the      case may be, 402      that there  are not  reasonable grounds  for  believing      that the  accused has committed a non-bailable offence,      but that  there  are  sufficient  grounds  for  further      inquiry into his guilt, the accused shall, pending such      inquiry, be  released on bail, or, at the discretion of      such officer  or Court,  on the  execution by  him of a      bond without sureties for his appearance as hereinafter      provided.           (3) When  a person  accused or  suspected  of  the      commission of  an offence  punishable with imprisonment      which may  extend to  seven years  or  more  or  of  an

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    offence under  Chapter VI,  Chapter XVI or Chapter XVII      of the  Indian Penal Code or abetment of, or conspiracy      or attempt  to commit, any such offence, is released on      bail under  sub-section (1),  the Court  may impose any      condition which the Court considers necessary-           (a) in  order to  ensure that  such  person  shall      attend in  accordance with  the conditions  of the bond      executed under this Chapter, or           (b) in  order to ensure that such person shall not      commit an offence similar to the offence of which he is      accused or  of the commission of which he is suspected,      or           (c) otherwise in the interests of justice.           (4) An  officer or a Court releasing any person on      bail under  sub-section (1)  or sub-section  (2), shall      record in writing his or its reasons for so doing.           (5) Any  Court which has released a person on bail      under sub-section  (1) or  sub-section (2),  may, if it      considers it  necessary so  to  do,  direct  that  such      person be arrested and commit him to custody.           (6) If,  in any  case triable by a Magistrate, the      trial of  a person  accused of any non-bailable offence      is not concluded within a period of sixty days from the      first date  fixed for taking evidence in the case, such      person shall,  if he  is in custody during the whole of      the  said   period,  be   released  on   bail  to   the      satisfaction of  the Magistrate,  unless for reasons to      be  recorded   in  writing,  the  Magistrate  otherwise      directs.           (7) If,  at any  time after  the conclusion of the      trial of  a person  accused of  an non-bailable offence      and before  judgment is  delivered,  the  Court  is  of      opinion that there are reasonable grounds for believing      that the accused is not 403      guilty of  any  such  offence,  it  shall  release  the      accused, if  he is  in custody, on the execution by him      of a  bond without  sureties for his appearance to hear      judgment delivered."      Section  439   (1)  (a)   incorporates  the  conditions mentioned in  Section 437  (3) if  the offence in respect of which the  bail is sought is of the nature specified in that sub-section. Section 439 reads thus :           "439. Special  powers of  High Court  or Court  of      Session regarding  bail. (1)  A High  Court or Court of      Session may direct-           (a) That  any person  accused of an offence and in      custody be  released on  bail, and if the offence is of      the nature specified in sub-section (3) of section 437,      may impose  any condition  which it considers necessary      for the purposes mentioned in that sub-section;           (b) that  any condition  imposed by  a  Magistrate      when releasing  any person  on bail  be  set  aside  or      modified :           Provided that  the High  Court  or  the  Court  of      Session shall,  before granting bail to a person who is      accused of  an offence  which is triable exclusively by      the Court  of Session  or which, though not so triable,      is punishable  with imprisonment  for life, give notice      of the  application for  bail to  the Public Prosecutor      unless it is, for reasons to be recorded in writing, of      opinion that it is not practicable to give notice.           (2) A  High Court  or Court  of Session may direct      that any  person who  has been  released on  bail under      this Chapter be arrested and commit him to custody."

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    The provisions  of Section  437  and  439  furnished  a convenient model  for the legislature to copy while enacting Section 438.  If it  has not done so and has departed from a pattern which  could easily  be adopted  with the  necessary modifications, it  would be  wrong to  refuse to give to the departure its  full effect  by  assuming  that  it  was  not intended to  serve any  particular or  specific purpose. The departure,  in   our  opinion,   was  made   advisedly   and purposefully :  Advisedly, at  least in part, because of the 41st Report  of the Law Commission which, while pointing out the  necessity  of  introducing  a  provision  in  the  Code enabling the  High Court  and the  Court of Session to grant anticipatory bail,  said  in  paragraph  29.9  that  it  had "considered" carefully  the question  of laying  down in the statute certain  conditions under  which alone  anticipatory bail could  be granted"  but had come to the conclusion that the question  of granting  such bail  should be left "to the discretion of the court" and ought not to 404 be fettered  by the  statutory provision  itself, since  the discretion was  being conferred  upon superior  courts which were expected  to exercise  it judicially.  The  legislature conferred a  wide discretion on the High Court and the Court of Session  to grant  anticipatory bail because it evidently felt, firstly,  that it  would be difficult to enumerate the conditions under  which anticipatory  bail should  or should not be  granted and  secondly, because  the intention was to allow the  higher courts in the echelon a somewhat free hand in the  grant of  relief in the nature of anticipatory bail. That is  why, departing  from the  terms of Sections 437 and 439, Section 438(1) uses the language that the High Court or the Court of Session "may, if it thinks fit" direct that the applicant be  released on  bail. Sub-section  (2) of Section 438 is  a further  and clearer  manifestation  of  the  same legislative intent  to confer  a wide discretionary power to grant anticipatory  bail. It provides that the High Court or the Court  of Session,  while issuing  a direction  for  the grant of  anticipatory bail, "may include such conditions in such directions  in the light of the facts of the particular case, as  it may  think fit", including the conditions which are set  out in  clauses (i) to (iv) of sub-section (2). The proof of  legislative  intent  can  best  be  found  in  the language  which   the  legislature   uses.  Ambiguities  can undoubtedly be  resolved by  resort to  extraneous aids  but words, as  wide and  explicit as  have been  used in Section 438, must  be given  their full  effect, especially  when to refuse to  do so  will result  in undue  impairement of  the freedom of  the individual and the presumption of innocence. It has  to be borne in mind that anticipatory bail is sought when  there   is  a  mere  apprehension  of  arrest  on  the accusation that  the applicant  has committed a non-bailable offence. A  person who  has yet to lose his freedom by being arrested asks  for freedom  in the  event of arrest. That is the stage  at which it is imperative to protect his freedom, in so  far as  one  may,  and  to  give  full  play  to  the presumption that he is innocent. In fact, the stage at which anticipatory bail  is  generally  sought  brings  about  its striking dissimilarity  with the situation in which a person who is arrested for the commission of a non-bailable offence asks for  bail. In  the latter  situation, adequate  data is available to  the Court,  or can be called for by it, in the light of  which it  can grant  or refuse  relief  and  while granting it,  modify it  by the  imposition of all or any of the conditions mentioned in Section 437.      This is  not to say that anticipatory bail, if granted,

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must be  granted without  the imposition  of any conditions. That will  be plainly  contrary to the very terms of Section 438. Though  sub-section (1)  of that  section says that the Court "may,  if it thinks fit" issue the necessary direction for bail, sub-section (2) confers on the Court the 405 power to  include such conditions in the direction as it may think fit  in the light of the facts of the particular case, including the conditions mentioned in clauses (i) to (iv) of that sub-section.  The controversy  therefore is not whether the Court  has the power to impose conditions while granting anticipatory bail.  It clearly and expressly has that power. The true  question is  whether by a process of construction, the amplitude  of judicial  discretion which is given to the High  Court  and  the  Court  of  Session,  to  impose  such conditions as they may think fit while granting anticipatory bail, should  be  cut  down  by  reading  into  the  statute condition which  are not  to be  found therein,  like  those evolved by  the High  Court  or  canvassed  by  the  learned Additional  Solicitor   General.  Our  answer,  clearly  and emphatically, is  in the  negative. The  High Court  and the Court of  Session to  whom the  application for anticipatory bail is  made ought to be left free in the exercise of their judicial discretion to grant bail if they consider it fit so to do  on the particular facts and circumstances of the case and on  such conditions  as the case may warrant. Similarly, they must  be left  free to refuse bail if the circumstances of the  case so  warrant, on considerations similar to those mentioned in  Section 437  or which are generally considered to be relevant under Section 439 of the Code.      Generalisations on matters which rest on discretion and the attempt  to discover  formulae of  universal application when facts  are bound  to differ from case to case frustrate the very  purpose of conferring discretion. No two cases are alike on  facts and  therefore, Courts  have to be allowed a little  free  play  in  the  joints  if  the  conferment  of discretionary power  is to  be meaningful.  There is no risk involved in  entrusting a  wide discretion  to the  Court of Session and  the High  Court in  granting anticipatory  bail because,  firstly,   these  are   higher  courts  manned  by experienced persons,  secondly, their  orders are  not final but are  open to  appellate or revisional scrutiny and above all because, discretion has always to be exercised by courts judicially and  not according  to whim, caprice or fancy. On the other hand, there is a risk in foreclosing categories of cases in which anticipatory bail may be allowed because life throws  up   unforeseen   possibilities   and   offers   new challenges. Judicial  discretion has to be free enough to be able to  take these  possibilities in its stride and to meet these challenges.  While  dealing  with  the  necessity  for preserving  judicial   discretion  unhampered  by  rules  of general application,  Earl Loreburn  L. C. said in Hyman and Anr. v. Rose :           "I desire  in the first instance to point out that      the  discretion   given  by   the   section   is   very      wide........... Now it 406      seems to  me that when the Act is so express 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

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    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  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."      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. 407      A close  look at  some of  the rules in the eight-point code formulated  by he High Court will show how difficult it is to apply them in practice. The seventh proposition says :           "The larger  interest  of  the  public  and  State      demand that  in serious  cases like  economic  offences      involving blatant corruption at the higher rungs of the      executive and  political power,  the  discretion  under      Section 438 of the Code should not be exercised."      How can  the Court,  even if it had a third eye, assess the blatantness  of corruption  at the stage of anticipatory bail ? And will it be correct to say that blatantness of the accusation will  suffice for  rejecting bail,  even  if  the applicant’s conduct  is painted  in colours  too lurid to be true ?  The eighth proposition rule framed by the High Court says :           "Mere general  allegations of  mala fides  in  the      petition are inadequate. The court must be satisfied on      materials before  it that  the allegations of mala fide      are substantial  and the accusation appears to be false      and groundless."      Does this  rule mean,  and that  is the argument of the learned Additional  Solicitor-General, that the anticipatory bail cannot  be granted unless it is alleged (and naturally,

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also shown,  because mere  allegation is  never enough) that the  proposed   accusations  are   mala   fide   ?   It   is understandable that  if mala  fides are  shown  anticipatory bail should be granted in the generality of cases. But it is not easy  to appreciate  why an application for anticipatory bail must  be rejected  unless the accusation is shown to be mala fide.  This, truly,  is the  risk involved  in  framing rules by judicial construction. Discretion, therefore, ought to be permitted to remain in the domain of discretion, to be exercised objectively  and open  to correction by the higher courts. The  safety of discretionary power lies in this twin protection which provides a safeguard against its abuse.      According to  the sixth  proposition framed by the High Court, the  discretion under Section 438 cannot be exercised in regard  to offences punishable with death or imprisonment for  life  unless,  the  court  at  the  stage  of  granting anticipatory bail,  is satisfied  that such a charge appears to be  false or  groundless. Now, Section 438 confers on the High Court  and the  Court of  Session the  power  to  grant anticipatory bail  if the  applicant has  reason to  believe that he may be arrested on an accusation of having committed "a non-bailable offence". We see no warrant for reading into this provision the conditions subject to 408 which bail  can be granted under Section 437(1) of the Code. That section,  while conferring  the power  to grant bail in cases of  non-bailable  offences,  provides  by  way  of  an exception  that   a  person  accused  or  suspected  of  the commission of  a  non-bailable  offence  "shall  not  be  so released" if  there appear  to  be  reasonable  grounds  for believing that  he has  been guilty of an offence punishable with death or imprisonment for life. If it was intended that the exception  contained in Section 437(1) should govern the grant of  relief under  Section 438(1),  nothing would  have been easier  for the  legislature than to introduce into the latter section  a similar provision. We have already pointed out  the  basic  distinction  between  these  two  sections. Section 437  applies only  after a person, who is alleged to have  committed  a  non-bailable  offence,  is  arrested  or detained without  warrant or  appears or is brought before a court. Section 438 applies before the arrest is made and, in fact, one  of the  pre-conditions of its application is that the person, who applies for relief under it, must be able to show  that  he  has  reason  to  believe  that  "he  may  be arrested", which  plainly means that he is not yet arrested. The nexus  which this  distinction bears  with the  grant or refusal of  bail is that in cases falling under Section 437, there is  some concrete  data on  the basis  of which  it is possible to  show that there appear to be reasonable grounds for believing  that the  applicant has  been  guilty  of  an offence punishable  with death  or imprisonment for life. In cases falling  under Section  438 that  stage  is  still  to arrive and,  in the generality of cases thereunder, it would be premature  and indeed  difficult to  predicate that there are or  are not  reasonable grounds  for so  believing.  The foundation of  the belief  spoken of  in Section  437(1), by reason of  which the  court cannot  release the applicant on bail  is,  normally,  the  credibility  of  the  allegations contained in  the First  Information Report. In the majority of cases  falling under  Section  438,  that  data  will  be lacking for  forming the  requisite belief.  If at  all  the conditions mentioned  in Section 437 are to be read into the provisions of Section 438, the transplantation shall have to be done without amputation. That is to say, on the reasoning of the  High Court,  Section 438(1) shall have to be read as

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containing the  clause that  the applicant  "shall  not"  be released on  bail "if  there appear  reasonable grounds  for believing that  he has  been guilty of an offence punishable with death  or imprisonment  for life".  In this process one shall have  overlooked that whereas, the power under Section 438(1) can  be exercised  if the  High Court or the Court of Session "thinks  fits to  do so,  Section  437(1)  does  not confer the  power to  grant bail in the same wide terms. The expression "if  it thinks  fit",  which  occurs  in  Section 438(1) in  relation to  the power  of the  High Court or the Court of Session, is conspicuously absent in Section 437(1). We see no valid reason for re-writing Section 438 with a 409 view, not to expanding 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 ancipatory 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.      A great  deal has  been said  by the  High Court on the fifth proposition  framed by  it, according  to which, inter alia, the power under Section 438 should not be exercised if the investigating agency can make a reasonable claim that it can secure incriminating material from information likely to be received  from the  offender  under  Section  27  of  the Evidence Act.  According to  the High Court, it is the right and the  duty of  the police  to investigate  into  offences brought to  their notice  and therefore,  courts  should  be careful not  to exercise  their powers  in a manner which is calculated to  cause interference therewith. It is true that the functions of the Judiciary and the police are in a sense complementary and  not overlapping.  And, as observed by the Privy Council in King Emperor v. Khwaja Nasir Ahmed :           "Just as it is essential that every one accused of      a crime  should have  free access to a court of justice      so that he may be duly acquitted if found not guilty of      the offence  with which  he is charged, so it is of the      utmost  importance   that  the   judiciary  should  not      interfere with  the police  in matters which are within      their province  and into  which the law imposes on them      the duty of inquiry. The functions of the Judiciary and      the Police  are complementary, not overlapping, and the      combination  of  the  individual  liberty  with  a  due      observance of  law and  order is only to be obtained by      leaving each to exercise its own function...."      But, these  remarks, may it be remembered, were made by the Privy  Council while  rejecting the  view of  the Lahore High Court  that it  had inherent jurisdiction under the old Section  561A,   Criminal  Procedure   Code,  to  quash  all proceedings taken  by the  police in  pursuance of two First Information Reports  made to  them. An  order quashing  such proceedings puts an end to the proceedings with the 410 inevitable result that all investigation into the accusation comes to  a halt.  Therefore, it  was held  that  the  Court cannot, in  the exercise  of its  inherent powers, virtually direct that  the  police  shall  not  investigate  into  the charges contained in the F.I.R. We are concerned here with a situation of  an altogether  different  kind.  An  order  of anticipatory  bail   does  not   in  any  way,  directly  or

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indirectly,  take  away  from  the  police  their  right  to investigate into  charges made  or to  be made  against  the person  released   on  bail.  In  fact,  two  of  the  usual conditions incorporated  in a direction issued under Section 438 (1)  are those  recommended in  Sub-section (2)  (i) and (ii) which  require the  applicant to  co-operate  with  the police and  to assure  that he  shall not  tamper  with  the witnesses during and after the investigation. While granting relief under  Section 438 (1), appropriate conditions can be imposed  under   Section  438   (2)  so   as  to  ensure  an uninterrupted investigation. One of such conditions can even be that  in the  event of  the police making out a case of a likely discovery  under Section  27 of the Evidence Act, the person released  on bail  shall be  liable to  be  taken  in police custody  for facilitating  the discovery. Besides, if and when  the occasion  arises, it  may be  possible for the prosecution to  claim the  benefit  of  Section  27  of  the Evidence Act  in regard  to a  discovery of  facts  made  in pursuance of  information supplied  by a  person released on bail by invoking the principle stated by this Court in State of U.P. v. Deoman Upadhyaya to the effect that when a person not in  custody approaches a police officer investigating an offence and  offers  to  give  information  leading  to  the discovery of  a fact,  having a  bearing on the charge which may be  made against  him, he may appropriately be deemed to have surrendered himself to the police. The broad foundation of this  rule is stated to be that Section 46 of the Code of Criminal Procedure does not contemplate any formality before a person  can be  said to be taken in custody: submission to the custody by word or action by a person is sufficient. For similar reasons,  we are  unable to  agree that anticipatory bail should  be refused  if a legitimate case for the remand of the  offender to the police custody under Section 167 (2) of the Code is made out by the investigating agency.      It is  unnecessary to consider the third proposition of the High  Court in any great details because we have already indicated that  there is  no justification  for reading into Section 438  the limitations  mentioned in  Section 437. The High Court  says  that  such  limitations  are  implicit  in Section 438 but, with respect, no such implications arise or can be 411 read into  that section.  The plenitudes of the section must be given its full play.      The High  Court says  in its fourth proposition that in addition to  the limitations  mentioned in  Section 437, the petitioner 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  to a dead letter.  In its  anxiety, otherwise  just, to show that the power  conferred by  Section 438  is  not  "unguided  or uncanalised", the  High Court  has subjected that power to a restraint which  will have  the effect  of making  the power utterly unguided.  To say that the applicant must make out a "special case"  for the  exercise  of  the  power  to  grant anticipatory bail  is really  to say  nothing. The applicant has undoubtedly  to  make  out  a  case  for  the  grant  of anticipatory bail. But one cannot go further and say that he must make  out a  "special case".  We do  not  see  why  the provisions of  Section 438 should be suspected as containing something volatile  or incendiary, which needs to be handled with the  greatest  care  and  caution  imaginable.  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

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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.      By proposition No. 1 the High Court says that the power conferred by  Section 438  is "of an extraordinary character and must  be exercised sparingly in exceptional cases only". It may  perhaps be  right to  describe the  power as  of  an extraordinary  character  because  ordinarily  the  bail  is applied for under Section 437 or Section 439. These Sections deal with  the power to grant or refuse bail to a person who is in  the custody  of the  police and  that is the ordinary situation in  which bail  is generally applied for. But this does not  justify the  conclusion that  the  power  must  be exercised in  exceptional cases  only, because  it is  of an extra-ordinary character.  We will really be saying once too often that  all discretion has to be exercised with care and circumspection depending  on  circumstances  justifying  its exercise. It  is unnecessary to travel beyond it and subject the wide  power conferred  by the  legislature to a rigorous code of self-imposed limitations. 412      It remains  only to  consider  the  second  proposition formulated by  the High  Court, which  is the  only one with which we are disposed to agree but we will say more about it a little later.      It will  be appropriate  at this  stage to  refer to  a decision of  this Court  in Balchand Jain v. State of Madhya Pradesh on  which the  High  Court  has  leaned  heavily  in formulating its  propositions. One  of us,  Bhagwati J.  who spoke for  himself and A. C. Gupta, J. observed in that case that:           "the power  of  granting  ’anticipatory  bail’  is      somewhat extraordinary  in character  and it is only in      exceptional cases  where it appears that a person might      be falsely  implicated, or  a frivolous  case might  be      launched against  him, or "there are reasonable grounds      for holding  that a person accused of an offence is not      likely to  abscond, or  otherwise  misuse  his  liberty      while on bail" that such power is to be exercised."      Fazal Ali,  J. who  delivered a  separate  judgment  of concurrence also observed that:           "an   order    for   anticipatory   bail   is   an      extraordinary remedy available in special cases". and proceeded to say:           "As Section  438 immediately  follows s. 437 which      is the  main provision  for bail  in  respect  of  non-      bailable offences,  it is  manifest that the conditions      imposed by  s. 437  (1) are  implicitly contained in s.      438 of  the Code.  Otherwise the result would be that a      person who  is accused  of murder can get away under s.      438 by obtaining an order for anticipatory bail without      the necessity  of proving  that there  were  reasonable      grounds for believing that he was not guilty of offence      punishable with  death or imprisonment for life. Such a      course would  render the  provisions of s. 437 nugatory      and will  give a  free licence  to the  accused persons      charged with  non-bailable offences to get easy bail by      approaching the  Court under  s. 438  and by-passing s.      437 of  the Code.  This, we feel, could never have been      the intention  of the Legislature. Section 438 does not      contain unguided or uncanalised powers to pass an order

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    for anticipatory  bail, but  such an  order being of an      exceptional type can only be passed if, 413      apart from the conditions mentioned in s. 437, there is      a special  case made  out for  passing the  order.  The      words "for  a direction  under this section" and "Court      may, if  it thinks  fit, direct"  clearly show that the      Court  has   to  be   guided  by   a  large  number  of      considerations including  those mentioned  in s. 437 of      the Code." While stating  his conclusions  Fazal Ali,  J. reiterated in conclusion  no.3  that  "Section  438  of  the  Code  is  an extraordinary remedy  and should  be  resorted  to  only  in special cases."      We hold  the decision in Balchand Jain (supra) in great respect but it is necessary to remember that the question as regards the  interpretation of  Section 438  did not  at all arise in  that case. Fazal Ali, J. has stated in paragraph 3 of his  judgment that  "the  only  point"  which  arose  for consideration before the Court was whether the provisions of Section 438  relating to  anticipatory bail  stand overruled and repealed  by virtue  of Rule  184  of  the  Defence  and Internal Security  of India  Rules, 1971 or whether both the provisions can,  by the  rule of  harmonious interpretation, exist side  by side.  Bhagwati, J.  has also  stated in  his judgment, after  adverting to  Section 438  that Rule 184 is what the  Court  was  concerned  with  in  the  appeal.  The observations made  in Balchand  Jain (supra)  regarding  the nature of  the power  conferred by Section 438 and regarding the question whether the conditions mentioned in Section 437 should be  read into Section 438 cannot therefore be treated as concluding  the  points  which  arise  directly  for  our consideration.  We  agree,  with  respect,  that  the  power conferred by Section 438 is of an extraordinary character in the sense indicated above, namely, that it is not ordinarily resorted to  like the  power conferred  by Sections  437 and 439. We also agree that the power to grant anticipatory bail should be  exercised with  due care  and circumspection  but beyond  that,   it  is   not  possible  to  agree  with  the observations made  in Balchand Jain (supra) in an altogether different context on an altogether different point.      We find  a great  deal of  substance in  Mr. Tarkunde’s submission that  since denial of bail amounts to deprivation of personal  liberty, the  Court  should  lean  against  the imposition of  unnecessary  restrictions  on  the  scope  of Section 438,  especially when no such restrictions have been imposed by  the legislature  in the  terms of  that section. Section 438  is a  procedural provision  which is  concerned with the personal liberty of the individual, who is entitled to the  benefit of  the presumption of innocence since he is not, on  the date  of his application for anticipatory bail, convicted of  the offence in respect of which he seeks bail. An overgenerous infusion of constraints and conditions which are not  to be  found in Section 438 can make its provisions constitutionally vulnerable  since  the  right  to  personal freedom cannot be made to depend on com- 414 pliance  with  unreasonable  restrictions.  The  beneficient provision contained  in  Section  438  must  be  saved,  not jettisoned. No doubt can linger after the decision in Maneka Gandhi 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 reasonable.  Section  438,  in  the  form  in  which  it  is conceived by the legislature, is open to no exception on the

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ground that  it prescribes  a procedure  which is  unjust or unfair. We ought, at all costs, to avoid throwing it open to a Constitutional  challenge by reading words in it which are not be found therein.      It is  not necessary  to refer  to decisions which deal with the  right to ordinary bail because that right does not furnish an exact parallel to the right to anticipatory bail. It is,  however, interesting that as long back as in 1924 it was held  by the  High Court of Calcutta in Nagendra v. King Emperor that  the object of bail is to secure the attendance of the  accused at  the trial,  that the  proper test  to be applied in  the solution of the question whether bail should be granted  or refused  is whether  it is  probable that the party  will  appear  to  take  his  trial  and  that  it  is indisputable  that   bail  is   not  to  be  withheld  as  a punishment. In two other cases which, significantly, are the ’Meerut Conspiracy  cases’  observations  are  to  be  found regarding the right to bail which observe a special mention. In K.  N. Joglekar v. Emperor it was observed, while dealing with Section  498 which  corresponds to  the present Section 439 of  the Code,  that it conferred upon the Sessions Judge or the  High Court  wide powers to grant bail which were not handicapped by the restrictions in the preceding Section 497 which  corresponds  to  the  present  Section  437.  It  was observed by  the Court  that there was no hard and fast rule and no  inflexible principle  governing the  exercise of the discretion conferred  by  Section  498  and  that  the  only principle which  was established  was  that  the  discretion should  be  exercised  judiciously.  In  Emperor  v.  H.  L. Hutchinson it  was said  that it  was very unwise to make an attempt to lay down any particular rules which will bind the High Court,  having regard  to the fact that the legislature itself  left   the  discretion   of  the  Court  unfettered. According to  the High  Court, the variety of cases that may arise from  time to  time cannot be safely classified and it is dangerous to make an attempt to classify the cases and to say that in particular classes a bail may be granted but not in other  classes. It  was observed that the principle to be deduced from the various sections in the Criminal Procedure 415 Code was  that grant  of bail is the rule and refusal is the exception. An accused person who enjoys freedom is in a much better position  to look  after his  case  and  to  properly defend himself  than if  he were in custody. As a presumably innocent person  he is  therefore entitled  to  freedom  and every opportunity  to look  after his own case. A presumably innocent person  must have  his freedom  to  enable  him  to establish his innocence.      Coming nearer  home, it  was observed  by Krishna Iyer, J., in  Gudikanti Narasimhulu  v.  Public  Prosecutor,  High Court of  Andhra Pradesh  that "the  issue of bail is one of liberty, justice,  public safety  and burden  of the  public treasury, all of which insist that a developed jurisprudence of bail  is  integral  to  a  socially  sensitized  judicial process. After  all,  personal  liberty  of  an  accused  or convict is  fundamental, suffering  lawful eclipse  only  in terms of  procedure established  by law. The last four words of Article 21 are the life of that human right."      In Gurcharan  Singh  v.  State  (Delhi  Admn.)  it  was observed by Goswami, J. who spoke for the Court, that "there cannot be  an inexorable  formula in  the matter of granting bail. The  facts and  circumstances of each case will govern the  exercise   of  judicial   discretion  in   granting  or cancelling bail."      In American Jurisprudence (2d, Volume 8, page 806, para

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39) it is stated:           "Where  the  granting  of  bail  lies  within  the      discretion of  the court,  the granting  or  denial  is      regulated,  to   a  large  extent,  by  the  facts  and      circumstances of each particular case. Since the object      of the  detention or  imprisonment of the accused is to      secure   his   appearance   and   submission   to   the      jurisdiction and the judgment of the court, the primary      inquiry is  whether a recognizance or bond would effect      that end." It is  thus clear that the question whether to grant bail or not depends  for its answer upon a variety of circumstances, the cumulative  effect of which must enter into the judicial verdict. Any one single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail.      In  regard   to  anticipatory  bail,  if  the  proposed accusation appears  to stem  not from  motives of furthering the ends  of justice  but from  some  ulterior  motive,  the object being to injure and humiliate the applicant by having him arrested,  a direction  for the release of the applicant on bail  in the event of his arrest would generally be made. On the other 416 hand, if  it appears  likely, considering the antecedents of the  applicant,  that  taking  advantage  of  the  order  of anticipatory bail  he will  flee from justice, such an order would not be made. But the converse of these propositions is not necessarily true. That is to say, it cannot be laid down as an  inexorable rule  that  anticipatory  bail  cannot  be granted  unless   the  proposed  accusation  appears  to  be actuated by mala fides; and, equally, that anticipatory bail must be  granted if there is no fear that the applicant will abscond.  There   are  several   other  considerations,  too numerous to  enumerate, the  combined effect  of which  must weigh  with   the  court   while   granting   or   rejecting anticipatory  bail.   The  nature  and  seriousness  of  the proposed charges,  the context  of the events likely to lead to the  making of  the charges,  a reasonable possibility of the applicant’s  presence not  being secured at the trial, a reasonable apprehension that witnesses will be tampered with and "the  larger interests  of the  public or the state" are some of  the considerations  which the  court has to keep in mind while  deciding an  application for  anticipatory bail. The relevance of these considerations was pointed out in The State v.  Captain Jagjit  Singh, which,  though, was  a case under the  old Section  498 which corresponds to the present Section 439 of the Code. It is of paramount consideration to remember that  the freedom of the individual is as necessary for the  survival of  the society  as it is for the egoistic purposes of  the individual.  A person  seeking anticipatory bail is  still a  free man  entitled to  the presumption  of innocence. He  is willing  to submit  to restraints  on  his freedom, by the acceptance of conditions which the court may think fit  to impose, in consideration of the assurance that if arrested, he shall be enlarged on bail.      A word  of caution  may perhaps  be  necessary  in  the evaluation of  the consideration  whether the  applicant  is likely to  abscond. There  can be  no presumption  that  the wealthy and  the mighty  will submit themselves to trial and that the  humble and  the poor will run away from the course of justice,  any more  than there  can be a presumption that the former  are not  likely to commit a crime and the latter are more  likely to  commit it.  In his  charge to the grand jury at  Salisbury Assizes,  1899 (to which Krishna Iyer, J.

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has referred in Gudikanti), Lord Russel of Killowen said:           " .............  it was the duty of magistrates to      admit accused  persons to  bail, wherever  practicable,      unless there  were strong  grounds for  supposing  that      such persons  would not  appear to take their trial. It      was not  the poorer  classes who  did not  appear,  for      their circumstances  were such  as to  tie them  to the      place where  they carried  on their  work. They had not      the golden wings with which to fly from justice." 417 This, incidentally,  will serve to show how no hard and fast rules can  be laid  down in  discretionary matters  like the grant or refusal of bail, whether anticipatory or otherwise. No such  rules can be laid down for the simple reason that a circumstance which,  in  a  given  case,  turns  out  to  be conclusive, may  have no more than ordinary signification in another case.      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 recognised  over the  years, than  by divesting  them of their discretion  which the  legislature has  conferred upon them,  by   laying  down   inflexible   rules   of   general application. 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.      This should  be the  end  of  the  matter,  but  it  is necessary to  clarify a  few points which have given rise to certain misgivings.      Section 438(1)  of the Code lays down a condition which has to be satisfied before anticipatory bail can be granted. The applicant must show that he has "reason to believe" that he may  be arrested  for a  non-bailable offence. The use of the expression  "reason to  believe" shows  that the  belief that the  applicant may  be so  arrested must  be founded on reasonable grounds.  Mere ’fear’  is not ’belief’, for which reason it  is not  enough for  the applicant to show that he has some sort of a vague apprehension that some one is going to make  an accusation against him, in pursuance of which he may be  arrested. The  grounds on  which the  belief of  the applicant is  based that  he may  be  arrested  for  a  non- bailable offence,  must be  capable of being examined by the court objectively,  because it  is then alone that the court can determine  whether the  applicant has  reason to believe that he  may be  so  arrested.  Section  438(1),  therefore, cannot  be  invoked  on  the  basis  of  vague  and  general allegations, as  if to  arm oneself  in perpetuity against a possible arrest.  Otherwise, the  number of applications for anticipatory bail  will be  as large  as, at  any rate,  the adult populace.  Anticipatory bail is a device to secure the individual’s liberty; it is neither a passport to 418 the commission  of crimes  nor a  shield against any and all kinds of accusations, likely or unlikely.      Secondly, if  an application  for anticipatory  bail is

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made to the High Court or the Court of Session it must apply its own  mind to  the question and decide whether a case has been made  out for granting such relief. It cannot leave the question for  the decision of the Magistrate concerned under Section 437  of the  Code, as  and when  an occasion arises. Such a course will defeat the very object of Section 438.      Thirdly, the  filing of  a First  Information Report is not a condition precedent to the exercise of the power under Section 438.  The imminence  of a likely arrest founded on a reasonable belief can be shown to exist even if an F.I.R. is not yet filed.      Fourthly, anticipatory  bail can  be granted even after an F.I.R.  is filed,  so long  as the applicant has not been arrested.      Fifthly,  the  provisions  of  Section  438  cannot  be invoked after  the arrest  of  the  accused.  The  grant  of "anticipatory bail"  to  an  accused  who  is  under  arrest involves a  contradiction in terms, in so far as the offence or offences  for which  he is arrested, are concerned. After arrest, the  accused must  seek his remedy under Section 437 or Section  439 of  the Code,  if he wants to be released on bail in  respect of  the offence or offences for which he is arrested.      We have  said that  there is one proposition formulated by the  High Court with which we are inclined to agree. That is preposition  No. (2).  We agree that a ’blanket order’ of anticipatory bail should not generally be passed. This flows from the  very language  of the  section which, as discussed above, requires the applicant to show that he has "reason to believe" that he may be arrested. A belief can be said to be founded on  reasonable grounds  only if  there is  something tangible to  go by on the basis of which it can be said that the applicant’s  apprehension that  he may  be  arrested  is genuine. That is why, normally, a direction should not issue under Section  438(1) to the effect that the applicant shall be released on bail "whenever arrested for whichever offence whatsoever." That  is what  is meant by a ’blanket order’ of anticipatory bail,  an order  which serves  as a  blanket to cover or  protect any  and every  kind of allegedly unlawful activity,  in  fact  any  eventuality,  likely  or  unlikely regarding which,  no concrete  information can  possibly  be had. The  rationale of  a direction  under Section 438(1) is the belief  of the  applicant founded  on reasonable grounds that he  may be  arrested for  a non-bailable offence. It is unrealistic  to   expect  the   applicant  to  draw  up  his application with the meticulousness of a pleading in a civil case and  such  is  not  requirement  of  the  section.  But specific events and facts 419 must be  disclosed by  the applicant  in order to enable the court to  judge of  the reasonableness  of his  belief,  the existence of  which is  the sine  qua non of the exercise of power conferred by the section.      Apart from  the fact  that the  very  language  of  the statute compels  this construction,  there is  an  important principle involved  in the  insistence that  facts,  on  the basis of  which a direction under Section 438 (1) is sought, must be  clear and  specific, not  vague and  general. It is only by  the observance  of that  principle that  a possible conflict between  the right  of an individual to his liberty and the  right of  the police  to  investigate  into  crimes reported to them can be avoided.      A blanket  order of anticipatory bail is bound to cause serious interference with both the right and the duty of the police in the matter of investigation because, regardless of

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what kind  of offence  is alleged  to have been committed by the applicant  and when,  an order of bail which comprehends allegedly unlawful  activity of  any description whatsoever, will prevent the police from arresting the applicant even if he commits,  say, a  murder in  the presence  of the public. Such an order can then become a charter of lawlessness and a weapon to  stifle prompt  investigation into  offences which could not  possibly be predicated when the order was passed. Therefore, the  court which  grants anticipatory  bail  must take care  to specify  the offence or offences in respect of which alone  the order  will be  effective. The power should not be exercised in a vacuum.      There was  some discussion  before us  on certain minor modalities  regarding  the  passing  of  bail  orders  under Section 438(1).  Can an  order of  bail be passed under that section without  notice to the public prosecutor? It can be. But notice  should issue  to the  public prosecutor  or  the Government Advocate  forthwith  and  the  question  of  bail should  be  re-examined  in  the  light  of  the  respective contentions of  the parties.  The ad-interim  order too must conform to  the requirements  of the  section  and  suitable conditions should  be imposed  on the applicant even at that stage. Should the operation of an order passed under Section 438(1) be  limited in  point of  time? Not  necessarily. The Court may,  if there  are reasons  for doing  so, limit  the operation of  the order  to a  short period  until after the filing of  an F.I.R. in respect of the matter covered by the order. The applicant may in such cases be directed to obtain an order of bail under Section 437 or 439 of the Code within a reasonably  short period after the filing of the F.I.R. as aforesaid. But  this need  not be  followed as an invariable rule. The  normal role  should be not to limit the operation of the order in relation to a period of time. 420      During the  last couple  of  years  this  Court,  while dealing with  appeals against  orders passed by various High Courts, has  granted anticipatory  bail to  many a person by imposing conditions  set out  in Section 438(2)(i), (ii) and (iii). The Court has, in addition, directed in most of those cases that (a) the applicant should surrender himself to the police for a brief period if a discovery is to be made under Section 27  of the  Evidence Act or that he should be deemed to have  surrendered himself  if such  a discovery  is to be made. In  certain exceptional  cases, the Court has, in view of the material placed before it, directed that the order of anticipatory bail  will remain  in operation only for a week or so  until after  the filing  of the  F.I.R. in respect of matters covered  by the  order. These  orders, on the whole, have worked  satisfactorily, causing the least inconvenience to the individuals concerned and least interference with the investigational  rights   of  the   police.  The  Court  has attempted through  those orders  to strike a balance between the  individual’s   right  to   personal  freedom   and  the investigational rights  of the  police. The  appellants  who were refused  anticipatory bail  by various courts have long since been  released by  this Court  under Section 438(1) of the Code.      The various  appeals and Special Leave petitions before us will  stand disposed  of in  terms of  this Judgment. The judgment of  the Full  Bench of  the Punjab and Haryana High Court, which  was treated  as the main case under appeal, is substantially set  aside as  indicated during  the course of this Judgment. S.R.                                Appeals allowed in part. 421

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