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PETITIONER: POKAR RAM

       Vs.

RESPONDENT: STATE OF RAJASTHAN AND ANR

DATE OF JUDGMENT17/04/1985

BENCH: DESAI, D.A. BENCH: DESAI, D.A. TULZAPURKAR, V.D. SEN, A.P. (J)

CITATION:  1985 AIR  969            1985 SCR  (3) 780  1985 SCC  (2) 597        1985 SCALE  (1)918

ACT:             Criminal Procedure Code 1973 s 438- Anticipatory bail-grant of-When arises.            The son of the appellant ,  was injured by a fire arm on August 23 ,  1983 at 4 p. m. The F.I.R. was lodged on the next day at 11.30 a.m. In clear and unambiguous terms it alleged that  the respondent  was at the relevant time armed with a  gun and  fired at that appellant’s son. who suffered injuries by  gun shot.  Since he was alive at that time ,  a case under  ss. 307  , 447  read with s. 149 and under . ss. 148 ,   379  and 827  of the  I.P.C. was registered. When he succumbed to  injuries ,   an offence under s.302 l.P.C. was also added.

HEADNOTE:          The respondent was not arrested till September 29 , 1983 ,   when  he appeared  before the Sessions Judge ,  and moved an  application under  s.438 Cr. P.C. for anticipatory bail ,   and  by order  dated September  30 ,   1983  it was granted with  a direction  that if  the respondent was taken into custody  by the  police he  must be released on bail on his furnishing  security in  the  amount  of  Rs.  5,000  on condition that  he will assist in the investigation and will not go out of India.           The appellant moved the High Court questioning the correctness of  the order granting anticipatory bail and for cancellation of  the same.A  Single judge  held that  he had locus standi  to move the High Court for cancellation of the anticipatory bail  but on  merits held  that no grounds were made out  for its  cancellation ,   and accordingly rejected the application.          The Appellant appealed to this Court.          Allowing the Appeal , ^          HELD:  1.  Relevant  considerations  governing  the Court’s decision  in granting  anticipatory bail under s.438 are materially  different from those when an application for bail by  a person  who is  arrested  in  the  course  of  an investigation as  also by  a person who is convicted and his appeal is pending before the 781

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higher court  and bail  is sought  t during the pendently of the  appeal.   In  the   instant  case,   the   High   Court unfortunately  fell   into  error   in  mixing  up  all  the consideration ,  as if  all the three become relevant in the present situation. [785B-C]      2. 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 place, the latter is granted in anticipa- tion of  arrest and‘is,  therefore, effective  at  the  very moment of  arrest. 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.A  direction  under  s.438  is intended to  confer conditional  immunity from  the touch as envisaged by s.46(1) or confinement. [78D-E]      3. In  regared 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. It  cannot   be  laid   down  as  an  inexorable  rule  that anticipatory bail  cannot be  granted  unless  the  proposed accusation appears  (1) to  be actuated  by malafides;  and, equally, that  anticipatory bail must be granted if there is no fear  that  the  applicant  will  abscond.  Some  of  the relevant considerations  which govern  the discretion of the Court while  deciding an  application for  anticipatory bail are 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  "-  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  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. [785G-H; 786A-D]      4. The  incident in  which Bhanwaria  was injured  with fire arm  occurred on August 23,1983 in respect of which the First Information  Report was  lodged on August 24, 1983 and it was  in clear  and unambiguous  terms  alleged  that  the respondent was  at the  relevant time  armed with  a gun and fired  towards   Bhanwaria  who  suffered  injuries  by  the gunshot. Amongst  others the  offence registered  was  under s.307 I.P.C.  that is  attempt to  commit murder.  The first information report thus discloses use of fire-arm with which the respondent  attempted to  commit  murder  of  Bhanwaria. Surprisingly, the Investigating Officer had not arrested him till September  29, 1983  when he  moved an  application for anticipatory  bail  under  s.438  Cr.P.C.  presumably  after coming to  know that  injured has  succumbed to his injuries and the  offence would  be one  of murder  punishable  under s.302 I.P.C.  This  conduct  of  the  Investigating  Officer leaves the  Court guessing.  The affidavit  led in  the High Court states that the Respon- 782 dent is  the Sarpanch  of the  village and is an influential person and  that his  father is  Ex-M.L.A. and is at present Pradhan of  the Panchayat  Samiti.  They  are  not  relevant

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considerations for  cancelling anticipatory  bail,  when  it appears to have been granted by a clear misconception of the relevant considerations  governing the grant of anticipatory bail, [786F-H; 787A-B]      5. The accusation against the respondent is that he has committed an offence of murder punishable under s.302 I.P.C. Surprisingly,  when   anticipatory  bail   was  granted   on September 30, 1983 there is not a whisper of it in the order of the learned Session Judge. When a person is accused of an offence of  murder by the use of a fire arm the Court has to be careful  and circumspect  in entertaining  an application for   anticipatory   bail.   Relevant   considerations   are conspicuous by silence in the order of the Session Judge, In the instant case, it cannot be said that the accusation does not appear  to stem  from motives  of furthering the ends of Justice but  from some ulterior motive and the object was to injure and  humiliate the respondent by having him arrested. What prompted  the Sessions Judge to grant anticipatory bail leaves the Court guessing and the Court is none the wiser by the order of the High Court declining to interfere. [787D-F]      6. The  order of the Session Judge clearly directs that if the  respondent is  taken into  custody by the police, he must be  released on  bail on his furnishing security in the amount mentioned  by him.  The order  is styled as one under s.438 Cr.P.C. [787H]      7. Unquestionably,  no case  was made  out for granting anticipatory bail in this case. Status in life, affluence or otherwise,  are   hardly   relevant   considerations   while examining  the   request  for  granting  anticipatory  bail. Anticipatory bail  to some  extent intrudes in the sphere of investigation of  the crime  and the  Court must be cautious and circumspect  in exercising such power of a discretionary nature. In  the instant  case, the  power was  exercised sub silentio as  to reasons  or on  irrelevant or considerations not germane  to the  determination. -  This Court,  to avoid miscarriage of justice, must interfere . [787D-E]      8. Some  very compelling circumstances must be made out for granting  bail to  a person accused of committing murder and that  too when  the investigation is in progress. In the instant case  the Investigating Officer did not even attempt to arrest  the appellant  though the  initial accusation was under s.307 I.P.C. punishable with imprisonment for life and as 50-n  as the  victim of  the  assault  succumbed  to  his injuries and offence under s.302 was registered, promptly an application for  anticipatory bail  was made and granted. If such an  order is  allowed to  stand,  faith  of  public  in administration of  justice  is  likely  to  be  considerably shaken- Therefore,  the order  granting anticipatory bail is cancelled.                                                     [789D-F]      9. Settling  aside the order granting anticipatory bail should in no way prejudice the respondent. It si open to him to move an application for being 783 enlarged on  bail and  the Court  would consider the same on merits  wholly  uninfluenced  by  the  earlier  orders,  the judgment of  the learned  Single Judge of the High Court and this Judgment. [789G-H]      Shri Gurbaksh Singh Sibbia and Ors. v. State of Punjab, [1980] 2 S.C.C. 565, relied upon.      Gurcharan Singh  and Ors.  State(Delhi Administration), [1978] 2  S.C.R. 358,  State v. Capt. Jagjit Singh, AIR 1962 S.C. 253,  Delhi Admn.  v. Sanjay  Gandhi, AIR 1978 S.C. 961 and Bhagirath  Singh Judeja  v. State  of Gujarat,  [1984] I S.C.C. 284, referred to

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JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 324 Of 1985      From the judgment and order dated 7.7. 1984 of the High Court of Rajasthan in Crl. Misc. Appln. No. 758 of 1983.      Sobhag Mal Jain and S.K. Jain for the Appellant.      A.N.  Mulla,   Surya  Kant   and  B.   Sharma  for  the Respondents. The Judgment of the Court was delivered by      DESAI, J. Special leave granted.      Unusual though  it may appear to be, under a compelling necessity in  the interest  of justice, we would depart from the ordinary  response of  this Court  to matters  involving bail. Ordinarily, this Court is loathe to interfere with the orders granting  or  refusing  bail  but  it  cannot  be  an insurmountable obstacle  in the  way of  rectifying an order which tends to disclose miscarriage of justice.      An incident  occurred on  August 23,  1983 in which one Bhanwaria, son  of  the  present  appellant  received  fatal injuries resulting  in his  death. An information was lodged with  the   Police  Station,   Khedapa,  District   Jodhpur, Rajasthan State  about the  occurrence on  August  24,  1983 around 11.30  A.M. At  that time Bhanwaria was alive and the offence was  registered under  Sec. 307,  447 read with Sec. 149 under  Sec. 148,  379 and  327 of the Indian Penal Code. When the hospital authority sent the message 784 that Bhawaria,  the victim  of assault,  who was admitted in the hospital  for treatment  has succumbed  to his injuries, the Investigating  Officer also  added an offence under Sec. 30’ IPC.  Soon thereafter  on September 29, 1983, the second respondent Chandan Singh s/o Shri Ranjit Singh (’respondent’ for short)  appeared  before  the  learned  Sessions  Judge, Jodhpur and  moved an  application under Sec. 438, Cr. P. C. for granting  him anticipatory  bail. The  public prosecutor appearing for the State opposed the application for grant of anticipatory bail.  The learned  Judge by  his  order  dated September 30,  1983 accepted  the  application  and  granted anticipatory bail  to  the  respondent  observing  that  the dispute is  with regard  to the right to cultivate a certain field from which when deceased Bhanwaria was coming out, the respondent fired at him and caused the injuries which proved fatal. The  learned Judge  further observed  that keeping in view some  decisions referred  to by  him,  he  was  of  the opinion that the application tor anticipatory bail should be granted. The  learned Judge  then ordered  that  if  the  1) accused is  taken into  custody by  the police,  he must  be released on bail on his furnishing security in the amount of Rs. 5,000  on condition that he will assist in investigation and will  not interfere in the investigation and will not go out of India.’      The present appellant moved the High Court of Rajasthan questioning  the   correctness  of   this  order   and   for cancellation of the anticipatory bail.A learned Single Judge of  the   High  Court  negatived  the  contention  that  the petitioner had  no locus  standi to  move the High Court for cancellation of  anticipatory bail.  On merits,  the learned Judge after  referring to  several decisions  observed  that while dealing  with an  application for cancellation of bail warranting interference  with the discretionary order passed by  the   learned  Sessions   Judge   granting   bail,   the considerations  which  should  weigh  with  the  court  were whether: (1)  the accused  would be readily available during

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the trial;  (2) he  is not  likely to  abuse the  discretion granted  his  favour  ’by  tampering  with  the  prosecution witnesses, concluded  that the respondent and his father are influential  persons   and  hold   important  posts  in  the Panchayat  or   Zila  Parishad   furnished  no   ground  for cancelling bail  and that  it is  not necessary  to  examine whether anticipatory  bail ought  to have  been granted, but what must  be considered  is whether a case tor cancellation of the same is made out. The learned Judge then held that 785 such grounds are not shown to exist and accordingly rejected the  application. Hence this appeal by special leave.      Relevant considerations governing the court ’s decision in granting  anticipatory bail under Sec. 438 are materially different from  those when  an application  for  bail  by  a person who  is arrested  in the  course of  investigation as also by  a person  who is  convicted and  his 13  appeal  is pending before  the higher  court and  bail is sought during the pendency  of the  appeal. Three  situations in which the question of  granting or refusing to grant bail would arise, materially and  substantially differ from each other and the relevant considerations  on which  the courts would exercise its discretion,  one way  or the  other,  are  substantially different from  each other.  This is  necessary to be stated because the  learned Judge.  in the High Court unfortunately fell into  an error  in mixing Up all the considerations, as if all the three become relevant in the present situation.      The  decision  of  the  Constitutional  Bench  in  Shri Gurbaksh Singh  Sibbia &  Ors. v. State of Punjab(1) clearly lays down that ’the distinction between an ordinary order of bail and  an order  of anticipatory bail is that whereas the former is  granted after arrest and there fore 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.’ 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.  direction under Sec. 438 is  intended to  confer conditional  immunity  from  the touch as  envisaged by  Sec. 46  (1) or confinement. In para 31,  Chandrachud,  CJ  clearly  demarcated  the  distinction between  the  relevant  considerations  while  examining  an application for  anticipatory bail  and an  application  for bail after  arrest in  the course of investigation, Says the learned Chief  Justice that ’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 appellant on bail in the event of his arrest’ would generally  be made. It was observed that ’it cannot be laid down as an inexorable rule that anticipa- (1) [1980] 2 S.C.C. 565. 786 tory 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.’   Some  of   the   relevant considerations which  govern the discretion, noticed therein are 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

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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.’ caution was voiced that  ’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, and 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.      Having noticed the relevant considerations which should weigh with  the court  in the matter of granting or refusing to grant  anticipatory bail,  let us first look at the order made by the learned Sessions Judge.      The incident  in which  Bhanwaria was injured with fire arm occurred  on August  23, 1983  in respect  of which  the first information  report was  lodged on August 24, 1983, in which it was in clear and unambiguous terms alleged that the respondent was  at the  relevant time  armed with  a gun and fired towards  Bhanwaria who  suffered injuries by gun shot- The incident occurred as stated earlier around 4.00 P. M. On August 23,  1983 and  this information  is lodged  with  the Police Station  at a  distance of  30 k.m. from the scene of occurrence on  August 24, 1983 at 11.30 a.m. Amongst others, the offence  registered was  under Sec. 307 IPC i.e. attempt to  commit   murder.  The   first  information  report  thus discloses  use   of  fire  arm  with  which  the  respondent attempted to  commit murder  of Bhanwaria. Surprisingly, the Investigating Officer  had not  arrested him  till September 29, 1983  when he moved an application for anticipatory bail under Sec.438  of the  Code of Criminal Procedure presumably after coming  to know  that injured Bhanwaria has  succumbed to his injuries and the offence would one of murder 787 punishable  under   Sec.  302   IPC.  This  conduct  of  the Investigating Officer  left us  guessing. Some light is shed by some averments from the affidavit filed in the High Court and extracted  by the  learned Judge  in his judgment. It is stated that  the respondent  is the Sarpanch of Vil. Danwara and is  an influential  person and  that his  father  Ranjit Singh  is  ex-M.L.A.  and  is  at  present  Pradhan  of  the Panchayat Samiti.  Are these relevant considerations for not cancelling anticipatory  bail when  it appears  to have been granted  by   a  clear   misconception   of   the   relevant considerations governing  of anticipatory  bail ? The answer is emphatically  in the  negative in  view of  the extracted observations from  the decision of the Constitution Bench in Gurbaksh Singh Sibbia’s case.      The accusation  against the  respondent is  that he has committed an  offence of  murder punishable-under  Sec.  302 IPC. Surprisingly,  when anticipatory  bail was  granted  on September 30,  1983, there  is not  a whisper  of it  in the order of  the learned Sessions Judge, Jodhpur. When a person is accused  of a offence of murder by the use of a fire arm, the Court  has to be careful and circumspect in entertaining an   application    for    anticipatory    bail.    Relevant considerations are  conspicuous by  silence in  the order of the learned  Sessions Judge.  Could it  be said in this case that the  accusation appears  to stem  not from  motives  of furthering the ends of justice but from some ulterior motive ? Could  it be  said that  the object  being to  injure  and humiliate the  respondent by  having  him  arrested  ?  What prompted the  learned Sessions  Judge to  grant anticipatory bail left  us guessing  and we  arc none  the wiser  by  the

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discussion  in   the  order  of  the  learned  Single  Judge declining to interfere.      Mr.  Mulla,   learned  counsel  who  appeared  for  the respondent urged  that the  order of  the  learned  Sessions Judge is  not of  anticipatory bail under Sec. 438 but it is an order made after looking into the papers of investigation and therefore,  it is  an order of bail under Section 439 of the  Code  of  Criminal  Procedure.  We  remain  unconvinced because the  order of  the learned  Sessions  Judge  clearly directs that  if the respondent is taken into custody by the police, he  must be  released  on  bail  on  his  furnishing security in  the amount  mentioned by him. The learned Judge himself styled  the order  as one under Sec. 438 of the Code of Criminal  Procedure. If  there was  any doubt  about this aspect? the penultimate para of the judge- 788 ment of  the learned  Single Judge of the High Court dispels the same  when it  recites that no order for cancelling bail can be  made when  the learned Additional Sessions Judge No. 1, Jodhpur  has granted  anticipatory bail to the respondent by his order dated September 30, 1983.      Mr. Mulla  then attempted to urge that on merits a good case for  granting bail  is made out. We are not inclined to examine this contention because neither the learned Sessions Judge nor  the learned  Single Judge  of the  High Court has examined the  case from  that angle. The only question which we were  called upon  to  decide  is  whether:  the  learned Sessions Judge  was justified  in granting anticipatory bail in  the   facts   and   circumstances   of   this   case   ? Unquestionably,  no   case  was   made  out   for   granting anticipatory bail  in this  case. Let  it be made distinctly clear that  status in  life,  affluence  or  otherwise,  are hardly relevant  considerations while  examining the request for granting  anticipatory bail.  Anticipatory  bail to some extent intrudes  in the sphere of investigation of crime and the court  must be  cautious and  circumspect in  exercising such power  of  a  discretionary  nature.  This  case  amply illustrates that  the power was exercised sub silentio as to reasons or  on irrelevant  or considerations  not germane to the determination.  This  Court,  to  avoid  miscarriage  of justice, must interfere.      The  High  Court  referred  to  two  decisions  of  the Rajasthan High  Court on the question of locus standi of the present  appellant  but  once  that  was  conceded  and  not questioned before us, we need not refer to them. The learned Judge then  referred to the decision in Gurbax Singh sibba’s case, but  failed to  take note of the relevant observations which we  have extracted  herein before.  Reference  to  the decision  in   Gurcharan  Singh   &  Ors.  v.  State  (Delhi Administration)(1) by  the High  Court  is  hardly  apposite because the controversy centered round the power of the High Court to  deal with the application for cancellation of bail under Section  439(2? of  the Code of Criminal Procedure and on merits  this Court  held that  the  High  Court  was  not justified in cancelling the bail The Court was not concerned with examining  the relevant  considerations for granting or refusing to  grant  anticipatory  hail  in  that  case.  The deision in (1) [1973] 2 SCR 358. 789 State v.  Capt. Jagjit  singh(1) would be of n assistance as the provision  of anticipatory bail come to be introduced in the Code  of 1973.  Similarly the decision in Delhi Admn. v. Sanjay Gandhi(2)  is of  no assistance because the court was concerned with  the question of cancellation of bail already

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granted long back in the facts and circumstances of the case on account  of events subsequent to the order granting bail. The High  Court lastly referred to Bhagirath Singh Judeja v. State of  Gujrat (3)  because that  was the  case  in  which accusation was  for an  offence under  Sec. 307  IPC and the learned Sessions  Judge had  granted bail  which  order  was quashed by  the High  Court. As stated earlier, by reference to these  decisions not  of topical  interest bearing on the question of  grant or  refusal of anticipatory bail the High Court unfortunately missed crux of the matter.      Before we  conclude this  judgment,  it  must  be  made distinctly clear  that some  very  compelling  circumstances must be  made out  for granting  bail to a person accused of committing murder  and that  to when the investigation is in progress. In  fact, the  Investigating Officer  did not even attempt  to   arrest  the   appellant  though   the  initial accusation  was   under  Sec.   307  IPC   punishable   with imprisonment for  life. And  as soon  as the  victim of  the assault succumbed  to his injuries and an offence under Sec. 302 was registered, promptly an application for anticipatory bail was  made and  granted. If  such an order is allowed to stand, faith  of public  in  administration  of  justice  is likely to  be considerably  shaken. Therefore,  we  have  no option but to cancel the order granting anticipatory bail.      By our  setting aside  the order  granting  anticipator bail,  respondent   should  in  no  way  be  prejudiced.  If consequent upon  the setting  aside of  the  order  granting anticipatory bail,  the   respondent is  arrested which must ordinarily follow,  it is  open to him, if he is so advised, to move  an application  for being  enlarged on bail and the Court would  consider the same on merits wholly uninfluenced by the  earlier orders,  the judgment  of the learned Single Judge of the High Court and this judgment. (1) AIR 1962 S.C. 253. (2) AIR 1978 S.C. 961. (3) [1984] 1 S.C.C.284. 790      Accordingly this  appeal is allowed and the order dated September  30,   1983  granting  anticipatory  bail  to  the respondent Chandan Singh s/o Ranjit Singh is quashed and set aside and  the bond  furnished by him is cancelled. We order accordingly. A.P.J                                         Appeal allowed 791