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) JUDGMENT
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
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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Criminal Procedure, 1973 (for short `the Code’) has been withdrawn.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
9
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
1circumspection 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
1
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
2
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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