Article 21 of the Constitution of India states that no person shall be deprived of his life or personal liberty except according to procedure prescribed by law. However, the power conferred by Article 21 of the Constitution of India is not unfettered and is qualified by the later part of the Article i.e. "...except according to a procedure prescribed by law". In State of M.P. v. Ram Kishna Balothia [State of M.P. v. Ram Kishna Balothia, MANU/SC/0239/1995 : 1995:INSC:99 : (1995) 3 SCC 221: 1995 SCC (Cri) 439], the Supreme Court held that the right of anticipatory bail is not a part of Article 21 of the Constitution of India and held as under: (SCC p. 226, para 7) {Para 71}
7. ... We find it difficult to accept the contention that Section 438 of the Code of Criminal Procedure is an integral part of Article 21. In the first place, there was no provision similar to Section 438 in the old Code of Criminal Procedure. The Law Commission in its 41st Report recommended introduction of a provision for grant of anticipatory bail. It observed:
We agree that this would be a useful advantage. Though we must add that it is in very exceptional cases that such power should be exercised.
In the light of this recommendation, Section 438 was incorporated, for the first time, in the Code of Criminal Procedure of 1973. Looking to the cautious recommendation of the Law Commission, the power to grant anticipatory bail is conferred only on a Court of Session or the High Court. Also, anticipatory bail cannot be granted as a matter of right. It is essentially a statutory right conferred long after the coming into force of the Constitution. It cannot be considered as an essential ingredient of Article 21 of the Constitution. And its non-application to a certain special category of offences cannot be considered as violative of Article 21.
IN THE SUPREME COURT OF INDIA
Criminal Appeal No. 1872 of 2025
Decided On: 09.04.2025
Serious Fraud Investigation Office Vs. Aditya Sarda
Hon'ble Judges/Coram:
Bela M. Trivedi and P.B. Varale, JJ.
Author: Bela M. Trivedi, J.
Citation: MANU/SC/0479/2025.
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