Law Web: Leading Supreme court Judgment No. 3 on grant on anticipatory bail

Another case to which we would like to refer is the judgment of a

Division Bench of this Court in the case of Siddharam

Satlingappa Mhetre v. State of Maharashtra and Others (2011) 1 SCC 694

. This case lays down an exhaustive commentary of

Section 438 of the

Code covering, in an erudite fashion, almost all the aspects and in

the process relies upon the aforesaid Constitution Bench

judgment in Gurbaksh Singh's case. In the very first para, the

Court highlighted the conflicting interests which are to be

balanced while taking a decision as to whether bail is to be

granted or not, as is clear from the following observations:

“1. Leave granted. This appeal involves issues

of great public importance pertaining to the

importance of individual's personal liberty and

the society's interest. Society has a vital interest

in grant or refusal of bail because every criminal

offence is the offence against the State. The

order granting or refusing bail must reflect

perfect balance between the conflicting interests,

namely, sanctity of individual liberty and the

interest of the society. The law of bails dovetails

two conflicting interests, namely, on the one

hand, the requirements of shielding society from

the hazards of those committing crimes and

potentiality of repeating the same crime while on

bail and on the other hand, absolute adherence

to the fundamental principle of criminal

jurisprudence regarding presumption of

innocence of an accused until he is found guilty

and the sanctity of individual liberty.”

23. The principles which can be culled out, for the purposes of the

instant case, can be stated as under:

(i) The complaint filed against the accused needs to be thoroughly

examined, including the aspect whether the complainant has filed

a false or frivolous complaint on earlier occasion. The court

should also examine the fact whether there is any family dispute

between the accused and the complainant and the complainant

must be clearly told that if the complaint is found to be false or

frivolous, then strict action will be taken against him in

accordance with law. If the connivance between the complainant

and the investigating officer is established then action be taken

against the investigating officer in accordance with law.

(ii) The gravity of charge and the exact role of the accused must be

properly comprehended. Before arrest, the arresting officer must

record the valid reasons which have led to the arrest of the

accused in the case diary. In exceptional cases, the reasons

could be recorded immediately after the arrest, so that while

dealing with the bail application, the remarks and observations of

the arresting officer can also be properly evaluated by the court.

(iii) It is imperative for the courts to carefully and with meticulous

precision evaluate the facts of the case. The discretion to grant

bail must be exercised on the basis of the available material and

the facts of the particular case. In cases where the court is of the

considered view that the accused has joined the investigation and

he is fully cooperating with the investigating agency and is not

likely to abscond, in that event, custodial interrogation should be

avoided. A great ignominy, humiliation and disgrace is attached

to arrest. Arrest leads to many serious consequences not only for

the accused but for the entire family and at times for the entire

community. Most people do not make any distinction between

arrest at a pre-conviction stage or post-conviction stage.

(iv) There is no justification for reading into Section 438 CrPC the

limitations mentioned in Section 437 CrPC. The plentitude of

Section 438 must be given its full play. There is no requirement

that the accused must make out a “special case” for the exercise

of the power to grant anticipatory bail. This virtually, reduces the

salutary power conferred by Section 438 CrPC to a dead letter. A

person seeking anticipatory bail is still a free man entitled to the

presumption of innocence. He is willing to submit to restraints

and conditions on his freedom, by the acceptance of conditions

which the court may deem fit to impose, in consideration of the

assurance that if arrested, he shall be enlarged on bail.

(v) The proper course of action on an application for anticipatory bail

ought to be that after evaluating the averments and accusations

available on the record if the court is inclined to grant anticipatory

bail then an interim bail be granted and notice be issued to the

Public Prosecutor. After hearing the Public Prosecutor the court

may either reject the anticipatory bail application or confirm the

initial order of granting bail. The court would certainly be entitled

to impose conditions for the grant of anticipatory bail. The Public

Prosecutor or the complainant would be at liberty to move the

same court for cancellation or modifying the conditions of

anticipatory bail at any time if liberty granted by the court is

misused. The anticipatory bail granted by the court should

ordinarily be continued till the trial of the case.

(vi) It is a settled legal position that the court which grants the bail

also has the power to cancel it. The discretion of grant or

cancellation of bail can be exercised either at the instance of the

accused, the Public Prosecutor or the complainant, on finding

new material or circumstances at any point of time.

(vii) In pursuance of the order of the Court of Session or the High

Court, once the accused is released on anticipatory bail by the

trial court, then it would be unreasonable to compel the accused

to surrender before the trial court and again apply for regular bail.

(viii) Discretion vested in the court in all matters should be exercised

with care and circumspection depending upon the facts and

circumstances justifying its exercise. Similarly, the discretion

vested with the court under Section 438 CrPC should also be

exercised with caution and prudence. It is unnecessary to travel

beyond it and subject the wide power and discretion conferred by

the legislature to a rigorous code of self-imposed limitations.

(ix) No inflexible guidelines or straitjacket formula can be provided for

grant or refusal of anticipatory bail because all circumstances and

situations of future cannot be clearly visualised for the grant or

refusal of anticipatory bail. In consonance with legislative

intention, the grant or refusal of anticipatory bail should

necessarily depend on the facts and circumstances of each case.

(x) We shall also reproduce para 112 of the judgment wherein the

Court delineated the following factors and parameters that need

to be taken into consideration while dealing with anticipatory bail:

(a) The nature and gravity of the accusation and the exact role of the

accused must be properly comprehended before arrest is made;

(b) The antecedents of the applicant including the fact as to whether

the accused has previously undergone imprisonment on

conviction by a court in respect of any cognizable offence;

(d) The possibility of the accused's likelihood to repeat similar or

other offences;

(e) Where the accusations have been made only with the object of

injuring or humiliating the applicant by arresting him or her;

(f) Impact of grant of anticipatory bail particularly in cases of large

magnitude affecting a very large number of people;

(g) The courts must evaluate the entire available material against the

accused very carefully. The court must also clearly comprehend

the exact role of the accused in the case. The cases in which the

accused is implicated with the help of Sections 34 and 149 of the

Penal Code, 1860 the court should consider with even greater

care and caution, because overimplication in the cases is a

matter of common knowledge and concern;

(h) While considering the prayer for grant of anticipatory bail, a

balance has to be struck between two factors, namely, no

prejudice should be caused to free, fair and full investigation, and

there should be prevention of harassment, humiliation and

unjustified detention of the accused;

(i) The Court should consider reasonable apprehension of tampering

of the witness or apprehension of threat to the complainant;

(j) Frivolity in prosecution should always be considered and it is only

the element of genuineness that shall have to be considered in

the matter of grant of bail and in the event of there being some

doubt as to the genuineness of the prosecution, in the normal

course of events, the accused in entitled to an order of bail.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 1134-1135 OF 2015

BHADRESH BIPINBHAI SHETH V STATE OF GUJARAT & ANOTHER

Hon'ble Judges/Coram:
A.K. Sikri and Rohinton Fali Nariman, JJ.

Citation;(2016)1 SCC152

2. The appellant herein, in these appeals, challenges the validity of

the judgment dated 18.07.2014 passed by High Court of

Judicature at Gujarat cancelling the anticipatory bail which was

granted to the appellant by the Additional Sessions Judge, Court

No.16 of Ahmedabad City Sessions Court.

3. Before coming to the factual narrative of a long drawn event that

has taken place in respect of criminal trial pending against the

appellant, we would like to state, in capsiculated manner, the

circumstances under which the matter has landed up in this

Court.

The appellant and respondent No.2 (hereinafter referred to

as the 'prosecutrix') were neighbours at the relevant time and

known to each other. On 29.05.2001, the prosecutrix wrote a

complaint to the Assistant Police Commissioner, Crime Branch,

Gaekwad Haveli, Ahmedabad City alleging the harassment that

was meted out to her by the appellant over a period of time.

Allegations of rape, emotional blackmail and threats were levelled

against the appellant therein. After two days i.e. on 31.05.2001,

her statement was recorded by a Police officer of the concerned

Police Station wherein she again levelled the allegations of

maltreatment, blackmail etc. However, in this statement of hers,

which was recorded by the Investigating Officer (I.O.), allegations

of rape were conspiciously missing. On the basis of statement

made on 31.05.2001, F.I.R. was registered and charge under

Section 506(2) of Indian Penal Code (IPC) was framed in the year

2001. The appellant was admitted to bail in the said case. Trial

has proceeded which has not made much headway for number of

years. In the year 2010, the prosecutrix made an application for

addition of charge under Section 376 IPC as well. The

Metropolitan Magistrate held that the said application should be

taken into consideration only after chief examination of the

complainant. The prosecutrix challenged the said order before

the Court of City Session Judge at Ahmedabad. The matter was

remanded back to the Metropolitan Magistrate with a direction

that the application shall be heard afresh in its entirety after giving

opportunity to both parties. On 31.03.2012, the Metropolitan

Magistrate directed the Police to carry out special investigation

under Section 173(8) of the Code of Criminal Procedure

(hereinafter referred to as the 'Code'). Being not satisfied, the

parties challenged the above order. The matter travelled up to

this Court wherein certain directions were issued. Ultimately, the

Police filed a revised chargesheet stating that a prima facie case

under Section 376 IPC was also made out. In view of addition of

charge under Section 376 IPC, the Magistrate passed the order

on 25.04.2013 for committal of proceedings to the Sessions Court

and taking the appellant into custody. However, execution of this

order for taking the appellant into custody was stayed till

07.05.2013. During this period, the appellant moved the City

Sessions Court No.16 at Ahmedabad for grant of anticipatory bail

which was ultimately granted on 18.05.2013. Against this order of

grant of anticipatory bail, the prosecutrix filed criminal revision

petition which has been allowed by the High Court vide impugned

order dated 18.07.2014 cancelling the anticipatory bail granted to

the appellant. As pointed out above, it is the justification and

legality of this order which is in question before us in the instant

appeals.

4. The aforesaid brief resume depicts that the charge was framed

against the appellant initially in the year 2001 only under Section

506(2) of IPC. Insofar as charge under Section 376 of IPC is

concerned, it is added only in the year 2014. Further, the original

charge was framed under Section 506(2) IPC on the basis of the

statement recorded on 31.05.2001 which was treated as FIR and

which did not contain the allegation of rape. If one has to go by

these facts, coupled with the fact that allegation of rape is of the

year 1997-98, one may not find fault with the order of the

Additional Session Judge granting anticipatory bail. However, the

impugned order passed by the High Court whereby the

anticipatory bail order of the Additional Session Judge is

cancelled, does not take the matter in such a simplistic manner

and, therefore, a detailed discussion on the issue has become

imperative.

5. The High Court took note of the circumstances which led to the

addition of charge under Section 376 IPC at a belated stage.

Thus, it would be necessary to take stock of those detailed events

and thereafter decide as to whether the order of the High Court is

sustainable or not. These facts are recapitulated with elaboration

which is absolutely necessary for our purposes, as under:

6. As mentioned above, before registration of the FIR on

31.05.2001 on the basis of the statement, the prosecutrix had

filed a complaint on 29.05.2001 before the Assistant

Commissioner of Police, Crime Branch. In this complaint, she

stated that she is a housewife and had been residing at 1,

Navpad Tenement, Opposite Nava Vikas Gruh, Behind Opera for

1½ years. She further mentioned that prior to shifting to this

place, she was residing with her in-laws at Sanand for 10 years.

She was married, with three children, and her husband was a

Jeweller. She alleged in the complaint that about 2½-3 years prior

thereto, she had gone to C.N. Vidhyalaya where her daugher

Devel was studying. To return home, she was to catch a Bus.

When she was standing at the Bus Stand, the appellant, who was

her neighbour, passed through that place in his car and on seeing

the prosecutrix, he asked her to sit in the car as he was also

going home. Though, she initially refused but thereafter she sat

in the car being unaware of his malafide intentions. Thereafter,

he took the car to some uninhabited place near Telav Village,

beat her and forcefully raped her. He also threatened her not to

narrate the above incident to anybody. Being scared of these

threats, she did not tell the incident to anybody. Taking benefit of

the circumstances, after one month he repeated the act of rape

by giving the threat that if the prosecutrix did not agree, he would

tell her husband and others. He took her to Hotel Ellis Town and

raped her against her wishes. After that, he threatened her of

dire consequences saying that he had taken her photographs.

This way he continued to keep relations with the prosecutrix.

This complaint further states that she shifted to Ahmedabad but

even after coming to Ahmedabad, he started sending letters with

the threat to defame her. At that stage, she told her husband and

in-laws. She went to Jyoti Sangh, a NGO and encouraged by

their support, she lodged the complaint of continuous harassment

on the part of the appellant.

7. On 31.05.2001, her statement was recorded in the Police Station

by the IO in which the allegations of misbehaviour by the

appellant are contained and the entire statement reads as under:

“The plaintiff Manishaben dictates that though

the complaint is lodged against the defendant

Bhadresh, he is not impoved till today. Our

condition is becoming worst day by day. In

these two days, Bhadresh is making horrible

face reading while our access and is doing

abusive and filthy behaviour. Yesterday, during

the night hours at about 8.15 hours, mother of

Bhadresh was speaking in a very loud tone in a

way that I can hear the same as they are

residing in front of us that we will pay

maintenance and Bhadresh himself was

speaking like this and telling me to live as his

KEPT is also speaking like this. He is laughing

in a satire manner in front of my house and he is

also behaving with my husband in a abusive

manner which could not be borne or disclosed.

At this time, when we left from Sanand to come

to Ahmedabad, workman of Bhadresh was

chasing us and was behind us for about 3 to 4

km and I do not know if any other associates

were of him or not going ahead, but his

associates are remaining present surrounding

me in a manner that he was keeping our watch

chasing us even though I myself or my husband

were not speaking anything. Now, I am worried

about my daughter who is growing and

becoming young because Bhadresh is also

looking to her with bad intention. His intention

appears to be mal.

I have dictated the above statement in full

sound state of mind and without any undue

pressure.

Before me Sd/- Manish K Mehta

Vandana Patva Date: 31.05.2001

31.05.2001”

8. During preliminary inquiries, the Police recorded the statements

of counsellors of Jyoti Sangh who confirmed that the prosecutrix

had made the statement to them regarding alleged rape by the

appellant. Be that as it may, the FIR was registered only under

Section 506(2) of IPC on 31.05.2001 bearing C.R. No.II.

and on that basis, charge was framed only under the

aforesaid Section on 25.06.2001. Further for one reason or the

other, the prosecution case even under the said charge did not

make any substantial progress.

9. On 07.12.2010, an application was moved by the prosecutrix for

amending the charge by including the offence under Section 376

IPC as well on the basis of complaint dated 29.05.2001 and

treating the same as FIR. Initially, the Metropolitan Magistrate did

not agree with this request and passed an order to the effect that

till the examination-in-chief of the prosecutrix was recorded, it was

not justifiable to amend/alter the charge. However, in the revision

petition filed against that order, the Sessions Court remanded the

case for fresh consideration. After remand, the order dated

31.03.2012 was passed by the Metropolitan Magistrate directing

further investigation under Section 173(8) of the Code implying

thereby that the necessity of framing of such charge would

depend upon the investigation carried out by the Police. Without

stating the details, it suffices to mention that the matter was taken

by all the parties to the Sessions Court and then to the High

Court. Thereafter, the prosecutrix even came up to this Court by

way of SLP (Crl.) No.636/2013 against the order dated

23.10.2012 passed by the High Court which had upheld the order

of the Magistrate who had already ordered further investigation.

Said SLP (Crl.) No.636/2013 was disposed of on 04.02.2013

taking note of the fact that though the Metropolitan Magistrate had

ordered further inquiry by the Police on 31.03.2012 with direction

to submit the report within four weeks, no such report had been

submitted till that date. On that basis, following order was

passed:

“We are informed that till today the police has

not submitted the final report pursuant to the

order passed by the Magistrate. If that is so, we

are both surprised and pain at the inaction of the

police and we direct the Investigating Officer of

Criminal Case No. 51 of 2011, pending before

the Metropolitan Magistrate, as directed by the

Magistrate, and submit the final report within four

weeks from the date of receipt/production of a

copy of this order before him.

In view of the above direction, the petitioner

does not wish to press this special leave petition

any longer. It is dismissed as not pressed.”

10. Thereafter, the Police completed the investigation and submitted

the report. The Police filed the chargesheet adding Section 376

of the IPC against the appellant and on that basis, an order was

passed by the Additional Chief Metropolitan Magistrate on

25.04.2013 thereby committing the case to the Sessions Court

and further directing that the appellant be taken into judicial

custody, cancelling the bail bond. It is in these circumstances the

appellant moved an application for grant of anticipatory bail to the

said Sessions Court which was granted on 18.05.2013. As

already noted above, the order granting bail to the

appellant/accused has been cancelled by the High Court.

11. Mr. Dushyant Dave and Mr. Harin Raval, learned senior counsel

appearing for the appellant took us through the material on record

on the basis of which it was sought to be argued that there was

acquaintance between the appellant and the prosecutrix and the

circumstances indicate that the physical relationship, if any, was

consensual. It was also submitted that in her statement recorded

before the IO on 31.05.2001, there was no allegation of rape;

even when the charge was framed under Section 506(2) IPC the

prosecutrix did not object to the framing of the said charge

simplicitor or insist upon addition of charge under Section 376 of

IPC as well; after a gap of more than 9 years from the framing of

charge, application was moved for this purpose; in the fresh

chargesheet filed by the IO, the IO clearly observed that no other

circumstantial evidence could be collected regarding the rape as

alleged by the complainant except her statement. It was also

submitted that in the complaint made to Jyoti Sangh, NGO, at the

end of the complaint which was given by the prosecutrix, there

was a noting that no action be taken on the said complaint as the

parties were trying to arrive at amicable settlement. The noting

reads as under:

“This case file be kept pending and whenever

we want, only then, you do contest this case

again and it is the wish of both of them, this case

is kept pending.

Before me Sd/- Manisha K. Mehta

Vandana Patva 29.03.2001

29.03.2001.”

It was also pointed out that between 2001 and 2010, the

prosecutrix did not appear to give her statement. However, the

statement of one Vandana Patva, counsel in the said NGO was

recorded. Mr. Dave referred to the cross-examination of the said

witness wherein this witness had admitted that in the statement

dated 31.05.2001 recorded by the Police, no fact regarding rape

was stated. It was also not mentioned as to at which place and at

what time, incident of rape had taken place. The learned senior

counsel, thus, submitted that in these circumstances the learned

Additional Session Judge rightly granted anticipatory bail. The

reasons adopted by the High Court in cancelling the bail were

commented upon by the learned counsel as not based on record,

particularly, the observations of the High Court that the

prosecutrix had to run a marathon for getting her complaint

registered as a FIR and more particularly for addition of charge

under Section 376 of IPC. They further submitted that the High

Court wrongly recorded that the Sessions Court had failed to

assign proper reasons for grant of anticipatory bail. It was

pointed out that the move on the part of the appellant in filing

criminal cases against the husband of the prosecutrix, in which

the prosecutrix husband was acquitted, is treated by the High

Court as tampering with the evidence by disturbing the witnesses

and on that basis, it is observed by the High Court that the

appellant was not entitled to the benefit of anticipatory bail.

Submission in this behalf was that even if the complaint or cases

lodged by the appellant against the husband of the prosecutrix

are presumed to be false, they had nothing to do with the instant

case and, therefore, such acts on the part of the appellant could

never be treated as tampering with the evidence.

12. The prosecutrix appeared in person and argued her case. She

extensively took us through the counter affidavit filed by her in

opposition to the present proceedings on the basis of which she

hammered the following aspects:

(a) The prosecutrix was harrased by the appellant. First act of sexual

intercourse was against her wishes and was clearly a rape. After

committing this rape, the appellant threatened her and started

blackmailing her. On that basis, he took undue advantage of the

hapless condition of the prosecutrix in which she was placed and

committed subsequent acts of intercourse against her wishes

which were nothing but commission of offences under Section

376 of IPC.

(b) Various letters were written by the appellant not only to the

prosecutrix but to her other family members as well, which

showed his continued harassment to the prosecutrix and her

family members.

daughter who was of growing age and wanted to blackmail the

prosecutrix in this behalf as well.

(d) In order to harass the prosecutrix, the appellant even foisted false

cases on the husband of the prosecutrix in order to pressurize the

prosecutrix to withdraw the case in question.

(e) She also submitted that not only in the complaint made to Jyoti

Sangh on 19.03.2001, she had levelled allegations of rape, but

such allegations were also made in her complaint to the ACP on

29.05.2001. According to her, in fact, the statement which was

recorded on 31.05.2001 by the IO was not correctly recorded who

intentionally omitted her statement concerning her rape by the

appellant, though specifically stated. It is because of this reason

that she had to file the application in the trial court for inclusion of

charge under Section 376 IPC with the prayer that complaint

dated 29.05.2001 before the ACP should be treated as the FIR

and not the statement dated 31.05.2001 recorded by the IO.

(f) She also submitted that she had to come up to this Court to have

the charge for offence under Section 376 of IPC framed against

the appellant.

13. Ms. Hemantika Wahi, learned counsel appearing for the State,

supported the plea of the prosecutrix. Her submission was that

once the charge under Section 376 IPC has been added which

was a serious charge and the offence being non-bailable, the

proper course of action was to direct the appellant to surrender

before the trial court and apply for regular bail. Her submission

was that having regard to the seriousness of this charge, it was

not a case of anticipatory bail.

14. We have given our thoughtful and serious consideration to the

aforesaid submissions on the charges, particularly, keeping in

mind that there is a charge of rape against the appellant and the

case projected by the prosecutrix is that as a helpless and weak

soul, she has been immensely harrassed, physically abused and

mentally tortured by the appellant.

15. In the first place, it is necessary to remind ourselves that in the

present proceedings, this Court is concerned not about the

feasibility of framing of the charge under Section 376 IPC or merit

thereof but to the grant of anticipatory bail to the appellant.

Therefore, the arguments of the prosecutrix that such a charge is

rightly framed and the submissions on behalf of the appellant

attempting to find the loopholes and the weakness in the

prosecution case, would not be of much relevance to the issue

involved. At this stage, it cannot be said as to whether there was

any physical relationship between the appellant and the

prosecutrix and, if so, whether it was consensual and, therefore,

no charge of rape was made out. The fact remains that a charge

of rape has been framed. It would ultimately be for the trial court

to arrive at the findings as to whether such a charge stands

proved or not, on the basis of evidence that would be produced

by the prosecution in support of this charge. With these

preliminary remarks, we advert to the core issue, namely, whether

in the circumstances of this case, appellant was entitled to

anticipatory bail or not and whether the High Court was justified in

cancelling the anticipatory bail.

16. For this purpose, we would first highlight the admitted position

which runs as follows:

The allegations of rape go back to the years 1997-1998. No

doubt, in the statement dated 19.03.2001 given to NGO Jyoti

Sangh by the prosecutrix, she had levelled the allegations of

rape. Equally, no doubt, she had repeated these allegations in

her complaint to ACP on 29.05.2001 as well. However, for some

curious reasons, the allegations of rape did not find mention in

her statement recorded by the IO on 31.05.2001 on the basis of

which FIR was registered. This possibility cannot be ruled out

that the IO did not record the statement correctly and intentionally

omitted to mention about the allegations of rape. Whether this, in

fact, happened would be tested during trial. However, the fact

remains that when the FIR was registered on the basis of

statement recorded on 31.05.2001 and the chargesheet was filed

making out a prima facie case only under Section 506(2) of IPC,

the prosecutrix did not say anything at that time. There was no

protest even when charge was framed by the concerned

Magistrate only under Section 506(2) IPC. The objection in this

regard was raised for the first time in the year 2008 i.e. almost 7

years after the framing of the charge and application was filed in

the year 2010 for including the charge under Section 376 IPC as

well on the ground that her complaint to the ACP given on

29.05.2001 be treated as FIR. The prosecutrix may have valid

reasons for this delay. However, it is not for us to go into the

same at this stage inasmuch as that is again a matter of trial and

it would be for the Sessions Court to ultimately adjudge as to

whether such delay was suitably explained and/or has any

bearing on the merits of the charge. It is reiterated at the cost of

repetition that we have to simply decide the question of feasibility

of grant of anticipatory bail.

17. In a matter like this where allegations of rape pertain to the period

which is almost 17 years ago and when no charge was framed

under Section 376 IPC in the year 2001, and even the prosecutrix

did not take any steps for almost 9 years and the charge under

Section 376 IPC is added only in the year 2014, we see no

reason why the appellant should not be given the benefit of

anticipatory bail. Merely because the charge under Section 376

IPC, which is a serious charge, is now added, the benefit of

anticipatory bail cannot be denied when such a charge is added

after a long period of time and inaction of the prosecutrix is also a

contributory factor.

The High Court has remarked that the complainant had to run a

marathon for getting her complaint registered as an FIR and more

particularly for addition of charge under Section 376 IPC. In view

of what we have mentioned above, these observations are not

correct. Further, the High Court has also wrongly mentioned that

the Sessions Court has not assigned proper reasons for grant of

anticipatory bail. In fact, the reasons which have persuaded us

and recorded above, are precisely the reasons given by the

Sessions Court itself while granting anticipatory bail to the

appellant. The High Court has also wrongly observed that it is the

appellant who was able to drag the matter for a decade before the

complaint was registered under proper Sections. The record of

the case does not support this observation of the High Court. As

far as the discussion in the impugned order commenting upon the

conduct of the appellant in filing false complaints and cases

against the husband of the prosecutrix is concerned, we find that

the High Court has made contradictory remarks on this aspect. At

one place, such a move on the part of the appellant is

condemned as amounting to disturbing the witness and is treated

as tampering with evidence. However, at another place, the High

Court itself remarked that the complainant or the prosecutrix

cannot get the anticipatory bail cancelled on this basis and the

ground of misusing the order of bail after its grant is not made out.

As per the High Court, the order of grant of bail by the Session

Court itself was improper and that is the basis for cancelling the

order passed by the Session Court.

19. Before we proceed further, we would like to discuss the law

relating to grant of anticipatory bail as has been developed

through judicial interpretative process. A judgment which needs

to be pointed out is a Constitution Bench Judgment of this Court

in the case of Gurbaksh Singh Sibbia and Others v. State of

Punjab1

. The Constitution Bench in this case emphasized that

provision of anticipatory bail enshrined in Section 438 of the Code

is conceptualised under Article 21 of the Constitution which

relates to personal liberty. Therefore, such a provision calls for

liberal interpretation of Section 438 of the Code in light of Article

21 of the Constitution. The Code explains that an anticipatory bail

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. 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

1 (1980) 2 SCC 565

police, the latter is granted in anticipation of arrest and is

therefore, effective at the very moment of arrest. A direction

under Section 438 is therefore intended to confer conditional

immunity from the 'touch' or confinement contemplated by Section

46 of the Code. The essence of this provision is brought out in

the following manner:

“26. 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

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. The beneficent

provision contained in Section 438 must be

saved, not jettisoned. No doubt can linger after

the decision in Maneka Gandhi v. Union of India,

(1978) 1 SCC 248, 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 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 to be found therein.”

20. Though the Court observed that the principles which govern the

grant of ordinary bail may not furnish an exact parallel to the right

to anticipatory bail, still such principles have to be kept in mind,

namely, the object of bail which is to secure the attendance of the

accused at the trial, and 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.

Otherwise, bail is not to be withheld as a punishment. The Court

has also to consider whether there is any possibility of the

accused tampering with evidence or influencing witnesses etc.

Once these tests are satisfied, bail should be granted to an

undertrial which is also important as viewed from another angle,

namely, 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. Thus, grant or non-grant of

bail depends upon a variety of circumstances and the cumulative

effect thereof enters into judicial verdict. The Court stresses that

any single circumstance cannot be treated as of universal validity

or as necessarily justifying the grant or refusal of bail. After

clarifying this position, the Court discussed the inferences of

anticipatory bail in the following manner:

“31. 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 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, AIR 1962 SC 253 :

(1962) 3 SCR 622 : (1962) 1 Cri LJ 216, 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.”

21. It is pertinent to note that while interpreting the expression “may, if

it thinks fit” occurring in Section 438(1) of the Code, the Court

pointed out that it gives discretion to the Court to exercise the

power in a particular case or not, and once such a discretion is

there merely because the accused is charged with a serious

offence may not by itself be the reason to refuse the grant of

anticipatory bail if the circumstances are otherwise justified. At

the same time, it is also the obligation of the applicant to make

out a case for grant of anticipatory bail. But that would not mean

that he has to make out a “special case”. The Court also

remarked that a wise exercise of judicial power inevitably takes

care of the evil consequences which are likely to flow out of its

intemperate use.

22. Another case to which we would like to refer is the judgment of a

Division Bench of this Court in the case of Siddharam

Satlingappa Mhetre v. State of Maharashtra and Others2

. This

case lays down an exhaustive commentary of Section 438 of the

Code covering, in an erudite fashion, almost all the aspects and in

the process relies upon the aforesaid Constitution Bench

2 (2011) 1 SCC 694

judgment in Gurbaksh Singh's case. In the very first para, the

Court highlighted the conflicting interests which are to be

balanced while taking a decision as to whether bail is to be

granted or not, as is clear from the following observations:

“1. Leave granted. This appeal involves issues

of great public importance pertaining to the

importance of individual's personal liberty and

the society's interest. Society has a vital interest

in grant or refusal of bail because every criminal

offence is the offence against the State. The

order granting or refusing bail must reflect

perfect balance between the conflicting interests,

namely, sanctity of individual liberty and the

interest of the society. The law of bails dovetails

two conflicting interests, namely, on the one

hand, the requirements of shielding society from

the hazards of those committing crimes and

potentiality of repeating the same crime while on

bail and on the other hand, absolute adherence

to the fundamental principle of criminal

jurisprudence regarding presumption of

innocence of an accused until he is found guilty

and the sanctity of individual liberty.”

23. The principles which can be culled out, for the purposes of the

instant case, can be stated as under:

(i) The complaint filed against the accused needs to be thoroughly

examined, including the aspect whether the complainant has filed

a false or frivolous complaint on earlier occasion. The court

should also examine the fact whether there is any family dispute

between the accused and the complainant and the complainant

must be clearly told that if the complaint is found to be false or

frivolous, then strict action will be taken against him in

accordance with law. If the connivance between the complainant

and the investigating officer is established then action be taken

against the investigating officer in accordance with law.

(ii) The gravity of charge and the exact role of the accused must be

properly comprehended. Before arrest, the arresting officer must

record the valid reasons which have led to the arrest of the

accused in the case diary. In exceptional cases, the reasons

could be recorded immediately after the arrest, so that while

dealing with the bail application, the remarks and observations of

the arresting officer can also be properly evaluated by the court.

(iii) It is imperative for the courts to carefully and with meticulous

precision evaluate the facts of the case. The discretion to grant

bail must be exercised on the basis of the available material and

the facts of the particular case. In cases where the court is of the

considered view that the accused has joined the investigation and

he is fully cooperating with the investigating agency and is not

likely to abscond, in that event, custodial interrogation should be

avoided. A great ignominy, humiliation and disgrace is attached

to arrest. Arrest leads to many serious consequences not only for

the accused but for the entire family and at times for the entire

community. Most people do not make any distinction between

arrest at a pre-conviction stage or post-conviction stage.

(iv) There is no justification for reading into Section 438 CrPC the

limitations mentioned in Section 437 CrPC. The plentitude of

Section 438 must be given its full play. There is no requirement

that the accused must make out a “special case” for the exercise

of the power to grant anticipatory bail. This virtually, reduces the

salutary power conferred by Section 438 CrPC to a dead letter. A

person seeking anticipatory bail is still a free man entitled to the

presumption of innocence. He is willing to submit to restraints

and conditions on his freedom, by the acceptance of conditions

which the court may deem fit to impose, in consideration of the

assurance that if arrested, he shall be enlarged on bail.