REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.    1178-1179   OF 2009 (Arising out of S.L.P. (Criminal) Nos. 5563-5564 of 2008)

SAVITRI AGARWAL & ORS. — APPELLANT (S)

VERSUS

STATE OF MAHARASHTRA & ANR. — RESPONDENT (S)

J U D G M E N T

D.K. JAIN, J.:

Leave granted.

2. Challenge in these two appeals is to the judgment and order dated  

2nd July,  2008 passed by the High Court of Judicature at Bombay,  

Nagpur Bench, Nagpur in Criminal Applications No.250 and 2081 of  

2008, whereby the said two applications filed by the State and the

complainant  respectively,  have  been  allowed  and  the  protection  

granted to the appellants by the Sessions Judge, Amravati vide order  

dated 18th   December, 2007 in terms of Section 438 of the Code of  

Criminal Procedure, 1973 (for short ‘the Code’) has been withdrawn.  

The appellants herein are the mother-in-law, father-in-law, husband  

and the younger brother of the father-in-law of the deceased-Laxmi.  

They are accused of  having committed offences punishable under  

Sections 498A, 304-B read with Section 34 of the Indian Penal Code,  

1860  (for  short  ‘the  IPC’)  and  Sections  3  and  4  of  the  Dowry  

Prohibition Act, 1961.   

3.Material facts, leading to the filing of these appeals, are as follows:

The  deceased-Laxmi  got  married  to  appellant  No.3  on  26th  

January,  2006.   On 13th October,  2006,  they were blessed with  a  

baby boy.  On 6th December, 2007 at about 4.30 p.m., appellant No.2  

(father-in-law) is stated to have heard the cries of Laxmi and when he  

rushed to the second floor of the house, he saw her burning.  He tried  

to  douse  the  fire.   Laxmi  told  him  that  her  son  was  lying  in  the  

bathroom.  He rushed to the bathroom and found that the child also  

had burns.   Laxmi and her child were removed to the hospital.  At  

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about  6.40  p.m.,  her  statement  was  recorded  by  the  Executive  

Magistrate wherein she stated that she and her son caught fire when  

she  was  pouring  kerosene  oil  in  the  lamp  which  accidentally  fell  

down; the oil got spilled over and both of them got burnt.  At about  

10.55  p.m.,  the  minor  child  expired.   On  receiving  the  intimation,  

parents of Laxmi reached the hospital at about 11.30 p.m. the same  

night.  On 7th December, 2007, at about 1.40 p.m. another statement  

of  Laxmi was recorded by the Executive Magistrate wherein again  

she reiterated that she had got burnt accidentally.

4.On 8th December,  2007,  father  of  Laxmi lodged a complaint  with  

Police Station City Kotwali, Amravati against the appellants, inter alia,   

alleging that after the marriage of his daughter on 26th January, 2006,  

the appellants were torturing her for not meeting dowry demand of  

Rs.2 lakhs and earlier on 15th July, 2006, due to torture she had left  

the  matrimonial  home,  intending  to  commit  suicide  but  due  to  

intervention of the relatives, she returned back to Amravati.  On the  

said complaint, the police registered an FIR against the appellants for  

offences under Section 498A read with Section 34, IPC and Sections  

3 and 4 of the Dowry Prohibition Act, 1961.

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5.On  6th December,  2007  the  appellants  applied  for  grant  of  

anticipatory  bail  before  the  Sessions  Judge,  Amravati,  who,  vide  

order dated 10th December, 2007, initially granted interim protection  

to them from arrest till the next date of hearing i.e. 17th December,  

2007.  On 16th December, 2007, Laxmi expired and offence under  

Section 304-B IPC came to be added against the appellants.  On 18th  

December,  2007,  after  hearing  both  sides  and  upon  taking  into  

consideration the said two dying declarations made by the deceased  

-  Laxmi,  statements  of  the  complainant  and  witnesses  and  after  

perusing the case  diary, the learned Sessions Judge confirmed the  

anticipatory bail granted to the appellants.

6.Aggrieved,  the  State  of  Maharashtra  and  the  complainant  filed  

petitions before the High Court  for  cancellation of  anticipatory bail  

granted to the appellants.  As noted earlier, by the impugned order,  

the  High  Court  has  cancelled  the  anticipatory  bail  granted  to  the  

appellants, on the ground that the Sessions Judge had failed to apply  

his mind to certain vital circumstances viz. - absence of mention of  

lantern and match stick in the panchnama; necessity of lantern and  

its lighting at 4 p.m. in the afternoon when the house was equipped  

with an  inverter; the daughter-in-law doing such risky work with one  

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year old child, particularly when elders in the family were present in  

the house and had everything been well in the house, there was no  

occasion for  the parents  of  the deceased to implicate her  in-laws.  

Inter  alia,  observing  that  the  evidence,  which directly  involved the  

appellants,  had  been  ignored,  rendering  the  order  passed  by  the  

Sessions Judge perverse, as noted above, the High Court has set  

aside the said order.  The High Court has also noted that the offences  

complained of, being of serious nature, there was no ground to grant  

anticipatory bail to the appellants.  Being aggrieved, the appellants  

are before us in these appeals.

7.Mr.  Uday  U.  Lalit,  learned  senior  counsel  appearing  for  the  

appellants contended that the High Court has failed to appreciate the  

factual background of the case, particularly the fact that in both the  

dying  declarations  recorded  by  the  Executive  Magistrate,  the  

deceased had not levelled any allegation against the appellants for  

demanding any dowry or for torturing her for any other purpose.  It  

was strenuously urged that the second dying declaration recorded on  

7th December,  2007 at  about  1.40  p.m.  was  in  the  presence  and  

perhaps at the instance of the father of the deceased, who admittedly  

had arrived in the hospital on 6th December, 2007 at 11.30 p.m., yet  

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the  deceased  did  not  level  any  allegation  against  the  appellants.  

Learned  counsel  argued  that  the  anticipatory  bail  having  been  

granted by the Sessions Judge upon consideration of  the relevant  

material  placed  before  him  by  the  prosecution,  viz.  the  dying  

declarations, the statements recorded by the investigating officer and  

the case diary, in the absence of any complaint by the Investigating  

Officer that the appellants were not cooperating in the investigations  

after the grant of interim protection on 10th December, 2007, or that  

they had misused the anticipatory bail granted to them, there was no  

other overwhelming circumstance before the High Court, warranting  

interference  with  the  judicial  discretion  exercised  by  the  Sessions  

Judge and cancellation of bail.

8.Per contra, Mr. Sekhar Naphade, learned senior counsel, appearing  

on behalf of the State strenuously urged that the circumstances relied  

upon by the High Court in its order  cancelling the anticipatory bail  

point a needle of suspicion at the appellants and therefore, to elicit  

the truth custodial interrogation of the appellants would be necessary.  

Highlighting the fact that the deceased had left her matrimonial home  

on 15th July, 2006 intending to commit suicide because of torture by  

the appellants and had returned back to her matrimonial  home on  

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being persuaded by the relatives of both sides on the assurance by  

the  appellants  that  she  would  not  be  harassed,  the  incident  in  

question  raises  presumption  against  the  appellants  in  terms  of  

Section 304-B IPC.  Learned counsel for the complainant, supporting  

the  orders  passed  by  the  High  Court,  submitted  that  since  order  

granting anticipatory bail had been passed by the Sessions Judge by  

ignoring evidence and material on record and the nature of offence, in  

the light of the decision of this Court in Puran Vs. Rambilas & Anr.1,  

the High Court was justified in cancelling the bail.

9.Before examining the merits  of  the rival  contentions,  we deem it  

appropriate to re-capitulate the background in which Section 438 was  

inserted in the Code and the broad parameters to be kept in view  

while dealing with an application under the said provision because  

despite plethora of case law on the subject including a decision of the  

Constitution Bench in Shri Gurbaksh Singh Sibbia & Ors. Vs. State  

of Punjab2 certain misgivings in regard to the concept and scope of  

the said provision still seem to prevail.

1 (2001) 6 SCC 338 2 (1980) 2 SCC 565

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10.Section 438 of the Code 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 accusation of having  

committed a non-bailable offence. The expression `anticipatory bail'  

has not been defined in the Code. But as observed in Balchand Jain  

Vs.  State of M.P.3,  ‘anticipatory bail’  means ‘bail  in anticipation of  

arrest’. The expression `anticipatory bail' is a misnomer inasmuch as  

it is not as if bail is presently granted by the Court in anticipation of  

arrest. When a competent court grants `anticipatory bail', it makes an  

order that in the event of arrest, a person shall be released on bail.  

There is no question of release on bail unless a person is arrested  

and, therefore, it is only on arrest that the order granting anticipatory  

bail becomes operative. The Court went on to observe 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 may be exercised.  

The power being rather unusual in nature, it is entrusted only to the  3 (1976) 4 SCC 572

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higher echelons of judicial service, i.e. a Court of Session and the  

High Court. Thus, the ambit of power conferred by Section 438 of the  

Code was held to be limited.

11.Historically, the Code of Criminal Procedure, 1898 (old Code) did  

not  contain  specific  provision corresponding to  Section  438 of  the  

present  Code  of  1973.  Under  the  old  Code,  there  was  a  sharp  

difference of opinion amongst various High Courts on the question  

whether  a  Court  had  inherent  power  to  make  an  order  of  bail  in  

anticipation of arrest. The preponderance of view, however, was that  

it did not have such power. The Law Commission of India considered  

the question and vide its 41st Report, recommended introduction of an  

express provision in this behalf.  

12.The  suggestion  of  the  Law  Commission  was  accepted  by  the  

Central  Government  and in  the  Draft  Bill  of  the  Code of  Criminal  

Procedure,  1970,  Clause 447  conferred  an express  power on the  

High Court and the Court of Session to grant anticipatory bail.

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13.The  Law Commission again considered the issue and stated;

“The  Bill  introduces  a  provision  for  the  grant  of  anticipatory bail. This is substantially in accordance with  the recommendation made by the previous Commission.  We agree that this would be a useful addition, though we  must add that it is in very exceptional cases that such a  power should be 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,  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”.

[Law Commission of India, Forty-eighth Report, para 31]

14. Keeping in view the reports of the Law Commission, Section  

438 was inserted in the Code. Sub-section (1) of Section 438 enacts  

that 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 to the Court of Session for a direction that  

in the event of his arrest he shall be released on bail, and the Court  

may, if it thinks fit, direct that in the event of such arrest he shall be  

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released on bail.  Sub-section (2) empowers the High Court or the  

Court  of  Session  to  impose  conditions  enumerated  therein.  Sub-

section (3) states that if  such person is thereafter arrested without  

warrant by an officer in charge of a police station on such accusation,  

he shall be released on bail.

15. In Gurbaksh Singh Sibbia (supra), the Constitution Bench was  

called upon to  consider  correctness or  otherwise of  principles laid  

down  by  the  Full  Bench  of  High  Court  of  Punjab  &  Haryana  in  

Gurbaksh Singh Sibbia Vs. State of Punjab4. The Full Bench of the  

High  Court  summarized  the  law  relating  to  anticipatory  bail  as  

reflected in Section 438 of the Code and laid down eight principles  

which were to be kept in view while exercising discretionary power to  

grant anticipatory bail.

16. The Constitution Bench while disagreeing in principle with the  

constraints  which  the   High  Court  had  engrafted  on  the  power  

conferred by Section 438 of the Code,  inter alia,  observed that the  

Legislature has conferred a wide discretion on the High Court and the  

Court of Session to grant anticipatory bail since it felt,  firstly, that it  

would  be  difficult  to  enumerate  the  conditions  under  which  4 AIR 1978 P&H 1 : 1978 Crl LJ 20 (FB)

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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 matter of grant of relief in the nature of  

anticipatory bail. The Court said;

“Generalizations 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”.

17. The Court felt  that wide discretionary power conferred by the  

Legislature  on  the  higher  echelons  in  the  criminal  justice  delivery  

system cannot be put in the form of straight-jacket rules for universal  

application as the question whether to grant bail or not depends for its  

answer  upon  a  variety  of  circumstances,  the  cumulative  effect  of  

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which must enter into the judicial verdict.  A circumstance which, in a  

given case,  turns out  to be conclusive,  may or  may not  have any  

significance in another case.  While cautioning against imposition of  

unnecessary restrictions on the scope of the Section, because, in its  

opinion, over generous infusion of constraints and conditions, which  

were not to be found in Section 438 of the Code, could make the  

provision  constitutionally  vulnerable,  since  the  right  of  personal  

freedom, as enshrined in  Article 21 of  the Constitution,  cannot  be  

made to depend on compliance with unreasonable restrictions, the  

Constitution  Bench  laid  down  the  following  guidelines,  which  the  

Courts are required to keep in mind while dealing with an application  

for grant of anticipatory bail:

i) Though the power conferred under Section 438 of  

the Code can be described as of an extraordinary  

character,  but  this  does not  justify  the  conclusion  

that  the  power  must  be  exercised  in  exceptional  

cases  only  because  it  is  of  an  extraordinary  

character.  Nonetheless,  the  discretion  under  the  

Section  has  to  be  exercised  with  due  care  and  

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circumspection  depending  on  circumstances  

justifying its exercise.

ii) Before power under sub-section (1) of Section 438  

of  the  Code  is  exercised,  the  Court  must  be  

satisfied  that  the  applicant  invoking  the  provision  

has reason to believe that he is likely to be arrested  

for a non-bailable offence and that belief  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 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. 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  

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is  the  sine  qua  non  of  the  exercise  of  power  

conferred by the Section.

iii) The observations made in  Balchand Jain’s  case  

(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  be  treated  as  

conclusive  on  the  point.  There  is  no  warrant  for  

reading into Section 438, the conditions subject to  

which bail can be granted under Section 437(1) of  

the Code and therefore, anticipatory bail cannot be  

refused in respect of offences like criminal breach of  

trust  for  the  mere  reason  that  the  punishment  

provided for 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.

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iv) No blanket order of bail should be passed and the  

Court which grants anticipatory bail must take care  

to specify the offence or the offences in respect of  

which  alone  the  order  will  be  effective.  While  

granting  relief  under  Section  438(1)  of  the  Code,  

appropriate  conditions  can  be  imposed  under  

Section  438(2)  so  as  to  ensure  an  uninterrupted  

investigation. One such condition 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 recovery.  

Otherwise, such an order can 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.

v) The filing of First Information Report (FIR) is not a  

condition precedent to the exercise of power under  

Section  438.  The  imminence  of  a  likely  arrest  

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founded on a  reasonable  belief  can be shown to  

exist even if an FIR is not yet filed.

vi) An anticipatory bail  can be granted even after  an  

FIR is filed so long as the applicant has not been  

arrested.

vii) The provisions of  Section 438 cannot  be invoked  

after  the  arrest  of  the  accused.  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.

viii) An interim bail order can be passed under Section  

438  of  the  Code  without  notice  to  the  Public  

Prosecutor but notice should be issued to the Public  

Prosecutor or to the Government advocate forthwith  

and the question of bail should be re-examined in  

the  light  of  respective  contentions  of  the  parties.  

The  ad-interim  order  too  must  conform  to  the  

requirements of the Section and suitable conditions  

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should  be imposed on  the  applicant  even at  that  

stage.

ix) Though it is not necessary that the operation of an  

order passed under Section 438(1) of the Code be  

limited in point of time but 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 FIR 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 reasonable short period after the filing  

of the FIR.  

18. At this juncture, it would be appropriate to note that the view  

expressed by this Court in  Adri Dharan Das  Vs.  State of W.B.5 to  

the effect that while dealing with an application under Section 438 of  

the Code, the Court cannot pass an interim order restraining arrest as  

it will amount to interference in the investigation, does not appear to  

be  in  consonance  with  the  opinion  of  the  Constitution  Bench  in  

Sibbia’s  case (supra).  Similarly,  the observation that  power under  

5 (2005) 4 SCC 303

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Section 438 is to be exercised only in exceptional cases seems to be  

based on the decision in  Balchand’s case (supra),  which has not  

been fully approved by the Constitution Bench. On this aspect, the  

Constitution Bench stated thus:

“The observations made in Balchand Jain 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 in an altogether  different context on an altogether different point”.               (Emphasis Supplied)

19. It would also be of some significance to mention that Section  

438  has  been  amended  by  the  Code  of  Criminal  Procedure  

(Amendment) Act, 2005. The amended Section is more or less in line  

with the parameters laid down in Sibbia’s case (supra). However, the  

amended provision has not yet been brought into force.

20. Having  considered  the  case  in  hand  on  the  touchstone  of  the  

aforementioned parameters, we are of the opinion that the High  

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Court has committed a serious error in reversing the order passed  

by the Additional Sessions Judge, Amravati granting anticipatory  

bail  to  the appellants.  The learned Sessions Judge passed the  

order after due consideration of the facts and circumstances of the  

case, in particular, the two dying declarations, one recorded in the  

presence of the parents of the deceased and the statements of the  

members of the Women Cell who had dealt with the case when on  

15th July, 2006, the deceased had left the house with intention to  

commit suicide and therefore, it  cannot be said that the judicial  

discretion exercised in granting anticipatory bail was perverse or  

erroneous, warranting interference by the High Court. The order  

passed by the Sessions Judge was supported by reasons to the  

extent required for exercise of judicial discretion in the matter of  

grant  of  bail.  It  may  be  true  that  some  of  the  circumstances,  

noticed  by  the  High  Court  in  the  impugned  order,  viz.,  no  

reference to lantern in the spot  panchnama  or the necessity of  

cleaning the lantern at 4 p.m. and/or availability of an inverter in  

the house etc., could have persuaded the Sessions Judge to take  

a  different  view  but  it  cannot  be  said  that  the  factors  which  

weighed with the Sessions Judge in granting bail were irrelevant  

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to  the  issue  before  him,  rendering  the  order  as  perverse.  

Moreover, merely because the High Court had a different view on  

same set of material which had been taken into consideration by  

the Sessions Judge, in our view, was not a valid ground to label  

the order passed by the Sessions Judge as perverse.

21. It  also appears to us that the High Court has overlooked the  

distinction of factors relevant for rejecting bail in a non-bailable case  

in the first instance and the cancellation of bail already granted. In  

Dolat  Ram & Ors.  Vs.  State  of  Haryana6,   while  dealing  with  a  

similar situation where the High Court had cancelled the anticipatory  

bail granted by the Sessions Judge in a dowry death case, this Court  

had observed that rejection of bail in a non-bailable case at the initial  

stage and the cancellation of bail had to be considered or dealt with  

on different basis. Very cogent and overwhelming circumstances are  

necessary  for  an  order  directing  the  cancellation  of  bail  already  

granted,  which,  in  our  opinion,  were  missing  in  the  instant  case.  

Nothing was brought to our notice from which it could be inferred that  

the appellants have not co-operated in the investigations or have, in  

any manner, abused the concession of bail  granted to them. As a  

6 (1995) 1 SCC 349

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matter of fact, Mr. Naphade, learned senior counsel representing the  

State, stated that after grant of anticipatory bail to the appellants, no  

investigation in the case has been conducted.

22. For the foregoing reasons, in our judgment, the impugned order  

setting aside the anticipatory bail  granted to the appellants by the  

learned Additional Sessions Judge, cannot be sustained. Accordingly,  

the appeals are allowed; impugned order is set aside and the order  

dated 18th December, 2007 passed by the Additional Sessions Judge  

confirming  the  ad-interim  anticipatory  bail  to  the  appellants,  is  

restored. It goes without saying that nothing said by the High Court or  

by us hereinabove shall be construed as expression of any opinion  

on the merits of the case.

23. Both the appeals stand disposed of, accordingly.

…………………………….J. (D.K. JAIN)

                              …………………………….J.  (R.M. LODHA)

NEW DELHI; JULY 10, 2009.

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