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
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
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
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
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
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
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
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