Saturday, September 20, 2025

For a valid prosecution under Section 138 NI Act, the demand notice must specifically and correctly mention the cheque amount. Any discrepancy, even a typographical error, is fatal.

Kaveri Plastics v. Mahdoom Bawa Bahrudeen Noorul
Criminal Appeal Nos. ____ of 2025
(@ SLP (Crl.) Nos. 11184-11185/2024)

Bench

Hon’ble Mr. Justice B.R. Gavai
Hon’ble Mr. Justice N.V. Anjaria (Author of Judgment)

Issue for Determination

Whether a notice under Proviso (b) to Section 138 NI Act is valid when the amount demanded in the notice differs from the cheque amount, and if a typographical error can save such notice.

Facts

A cheque of ₹1,00,00,000 was issued by the accused company (Nafto Gaz India Pvt. Ltd.).
The cheque was dishonoured for “Funds Insufficient.”
The complainant issued statutory demand notices on 08.06.2012 and 14.09.2012, but demanded ₹2,00,00,000 instead of the cheque amount of ₹1,00,00,000.
Accused sought discharge, contending that notice was invalid.
The High Court of Delhi quashed the complaint, holding that the notice was not in compliance with Section 138(b).
Complainant argued in Supreme Court that it was only a typographical error.

Arguments

Appellant (Kaveri Plastics):
- Wrong mention was a clerical error (copy-paste mistake).
- Notice should be read as a whole, cheque details were correctly mentioned.
- Rigid technicality should not defeat substantive justice.
Respondent (Accused):
- Both notices repeatedly demanded double the cheque amount.
- This was not a mere error; it vitiated the statutory requirement.
- Law requires strict compliance.

Legal Principles Discussed

Section 138 NI Act – Ingredients and role of Proviso (b).
Interpretation of the phrase “said amount of money” = cheque amount (from Suman Sethi v. Ajay K. Churiwal, (2000) 2 SCC 380).
Strict compliance required in penal statutes (Rahul Builders v. Arihant Fertilizers, (2008) 2 SCC 321; Dashrathbhai Patel v. Hitesh Patel, (2023) 1 SCC 578).
Several High Court precedents holding notices invalid where cheque amount was misstated.
Principle: Penal statutes must be construed strictly; typographical errors cannot dilute mandatory compliance.

Held

Notice must demand the exact cheque amount.
Even a typographical error is fatal, since Section 138(b) is a mandatory precondition.
Since notices in this case demanded ₹2,00,00,000 instead of the actual cheque amount of ₹1,00,00,000, both notices were invalid.
Consequently, the complaint under Section 138 NI Act was not maintainable.

Decision

Appeals dismissed.
High Court’s order upholding quashment of the complaint sustained.
Pending interlocutory applications disposed of.

2025 INSC 1133

Page 1 of 25

Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS._______ OF 2025

(@SPECIAL LEAVE PETITION (CRL.) NOS. 11184-11185/2024)

KAVERI PLASTICS …Appellant(s)

VERSUS

MAHDOOM BAWA BAHRUDEEN NOORUL

…Respondent(s)

J U D G M E N T

N.V. ANJARIA, J.

Leave granted.

2. When the amount mentioned and demanded in

the notice sent under Proviso (b) to Section 138 of the

Negotiable Instruments Act, 1881, to the payee or the

holder in due course of the cheque, is different from the

amount for which the cheque was issued, whether the

notice would stand valid in eye of law; whether a defence

that such was a typographical error could be a ground

which could be countenanced in law - are the questions

falling for consideration in the present appeals.

Page 2 of 25

2.1. The appeals arise out of the judgment and order

dated 26.02.2024 in Crl. M.C. No.2164 of 2022 and Crl.

M.A. No.9155 of 2022 passed by the High Court of Delhi

whereby the High Court quashed the Criminal Complaint

No.523804 of 2016 filed by the respondent herein under

Sections 138, 141 and 142 of the Negotiable Instruments

Act, 1881 (hereinafter referred to as ‘the NI Act’), on the

ground that amount mentioned in the notice was not the

same as per the cheque, which rendered the notice

invalid.

3. Stated in brief, the facts in the background are

inter alia that a complaint came to be filed by the

appellant herein against the respondent-arraigned as

accuse No.3, alleging that accused No.1-M/s. Nafto Gaz

India Private Limited entered into Memorandum of

Understanding with the appellant-complainant on

30.04.2012 relating to sale of land. A cheque bearing

number 876229 dated 12.05.2012 drawn on the Indian

Overseas Bank, R.K. Puram, Delhi for Rs.1,00,00,000/- was

issued by the accused No.1 in favour of the appellant,

which returned dishonoured on the ground ‘funds

insufficient’.

3.1 The appellant issued demand notice dated

08.06.2012. The relevant part of said notice is extracted

hereunder.

Page 3 of 25

“4. That in pursuance of the MoU, in terms of

part liability towards my clients, you the noticees

issued the following cheque:

CHEQUE NO. DATE BANK & BRANCH AMOUNT

876229 30.04.2012 Indian Overseas Bank, 1 Crore

B/o R.K. Puram 1,00,00,000/-

I, hereby call upon you to make the payments of

the aforesaid cheques of 2,00,00,000/- (Rupees

Two Crores) within the stipulated period of 15

days from the date of receipt of this legal notice

failing which I have definite instructions from my

client to initiate legal proceedings, against you

which please note shall solely be at your risk and

cost. Copy kept.”

3.2 Another notice dated 14.09.2012 was issued to

accused No.1- M/s. Nafto Gaz India Private Limited and

its Directors through the advocates. Relevant portion

thereof is extracted hereinbelow:

‘Sub.: Legal Notice’

Under instructions and on behalf of my client Sh.

Deepak Gupta, S/o Sh. Rameshwar Dass, R/o

3862, Gali No.1, Pahari Dheeraj, Sadar Bazar,

Delhi - 110006 and on the basis of the documents

provided, I serve upon you the following legal

notice;

Page 4 of 25

1. That my client is a law abiding citizen

residing at the abovementioned address for the

past many years.

2. That you the noticee no.1 is a company

registered under the Indian Companies Act, 1956

having its office at the abovementioned address

while the noticees no. 2-5 are Directors of the

noticee no. 1 Company and are responsible for

day to day working of the noticee no. 1 company

and the noticee no. 6 is the authorised signatory of

the noticee no.1 company and noticees No.2-6 are

responsible for day to day activities of the noticee

no.-1 company.

3. That you the notice no.1 entered into a

Memorandum of Understanding with my client on

30.04.2012 pertaining sale of land bearing Khasra

No. 75, Khewat No. 61, Khata No. 112 and Khatoni

No. 61/14, Village — Humayunpur situated in

Abadi of Arjun Nagar, New Delhi and also agreed

to take on lease the property till the final sale deed

is executed and issued certain cheques towards

your liability for rent of leased property.

4. That in pursuance of the MoU, in terms of

part liability towards my clients, you the notices

issued the following cheque:

CHEQUE NO. DATE BANK & BRANCH AMOUNT

876229 30.04.2012 Indian Overseas Bank, 1 Crore

B/o R.K. Puram 1,00,00,000/-

Page 5 of 25

5. That you the noticees assured my client

that the aforesaid cheque shall be honoured on

presentation.

6. That believing you assurance, my client

presented the aforesaid cheque to his banker, but

was astonished to see the fate of the cheque as the

same returned dishonoured vide memos dated

29.08.2012 for reason “FUNDS INSUFFICIENT”.

7. That you have defrauded my client by

issuing cheque from account maintained by you

towards discharge of your legal liability towards

my client and then not ensuring that the same is

dishonoured thereafter, attracting penal action

u/s 138 of the Negotiable Instruments Act, 1881

and also under Section 420 of the Indian Penal

Code.

I, hereby call upon you to make the payments of

the aforesaid cheque of ₹2,00,00,000/- (Rupees

Two Crores) within the stipulated period of 15

days from the date of receipt of this legal notice

failing which I have definite instructions from my

client to initiate legal proceedings, against you

which please note shall solely be at your risk and

cost. Copy kept.”

3.3 The fact situation is that the cheque in question

was issued for Rs.1,00,00,000/- whereas in both the

aforesaid notices sent to the accused – the drawer of the

Page 6 of 25

cheque upon bouncing of the cheque, the complainant

asked for the payment of Rs.2,00,00,000/-. At that stage,

the respondent accused filed an application seeking

discharge contending that the notice of demand as

aforementioned was not in terms of Proviso (b) to Section

138 of the NI Act, therefore, the complaint was not

maintainable. The plea for discharge was dismissed by

the Metropolitan Magistrate on 06.10.2021. The

respondent herein then filed a petition before the High

Court, culminating into the impugned judgment and

order whereby the High Court held that as the demand

notice under Proviso (b) of Section 138 of the NI Act was

at variance with the cheque amount, the same was invalid

rendering the complaint liable to be quashed.

3.4 In the reply filed by the appellant to the

discharge application the following defence was raised

as found in paragraph 2.

“That the notice dated 08.05,2012 is perfect and

if contents of the entire notice be read as whole

the said demands, the "aforesaid cheque" and the

aforesaid cheque has been clearly described in

para 4 of the notice, however, due to

typographical inadvertent mistake

Rs.2,00,00,000/- has been mention after the word

"aforesaid cheque". It is very relevant to mention

herein that complainant has also issued other

notices to the accused on the same day which

consist the cheque for Rs.2,00,00,000/- and due to

Page 7 of 25

cut paste command inadvertently amount of Rs.

2,00,00,000/- could not change in the notice

issued in the present case. It is very relevant to

mention herein that contents of entire notice

clearly speaks real facts and all the contents of the

notice must be read in totality.”

4. Learned Advocate for the appellant, Mr. Sanjay

Kumar assailing the judgment of the High Court,

contended that a too technical ground weighed with the

High Court in quashing the complaint, as it viewed that

since amount mentioned in the notice was

Rs.2,00,00,000/-while the cheque issued was for

Rs.1,00,00,000/-, the notice was invalid. It was sought to

be submitted that there was a clear typographical error

on the part of the complainant in mentioning in the notice

the different amount. It was next submitted that other

details of cheque were mentioned in the notice and that

the court ought to have looked at the substance of the

matter rather than becoming technical.

4.1 It was then submitted that the offence under

Section 138 of the NI Act is essentially a civil wrong in the

attire of criminal offence. In that view, it was submitted,

the technicality should not be allowed to prevail. It was

further submitted that purpose of Section 138 of the NI Act

is to facilitate smooth business transactions. Learned

counsel for the appellant submitted that the kind of view

taken by the High Court, if allowed to be sustained, it

Page 8 of 25

would give a premium to the drawer of the cheque whose

cheque is dishonoured and has remained unpaid.

4.2 It was submitted by relying on the decision of

this Court in Suman Sethi vs. Ajay K. Churiwal & Anr.1

that the notice was required to be read as a whole. By

pressing into service another decision also of this Court

in Central Bank of India & Anr. vs. Saxons Farms &

Ors.

it was highlighted that the object of the notice under

the Proviso (b) of Section 138 of the NI Act, was to give a

chance to the drawer of the cheque to rectify his omission

and also to protect an honest drawer.

4.3 On the other hand, learned advocate for the

respondent Mr. Kush Chaturvedi submitted that in the

notice under Proviso (b) of Section 138 of the NI Act

issued by the respondent, he gave incorrect details

demanding double the cheque amount. Learned

advocate for the respondent highlighted that

Rs.2,00,00,000/- was demanded in both the notices issued

on 08.06.2012 and next on 14.09.2012. It was submitted

with reference to the decisions of this Court as well as that

of different High Courts that the issue is no longer res

integra that the demand in legal notice cannot be different

than the cheque amount. He submitted that the

complainant took a false and a stock plea of typographical

error in the notice.

(2000) 2 SCC 380

(1999) 8 SCC 221

Page 9 of 25

5. Having gathered the compass of the controversy

and considered the rival submissions, the provision of

Section 138 of the NI Act may be noticed at the outset. This

Section deals with the dishonour of the cheque. It reads

as under,

“138. Dishonour of cheque for insufficiency,

etc., of funds in the account.—Where any

cheque drawn by a person on an account

maintained by him with a banker for payment of

any amount of money to another person from out

of that account for the discharge, in whole or in

part, of any debt or other liability, is returned by

the bank unpaid, either because of the amount of

money standing to the credit of that account is

insufficient to honour the cheque or that it exceeds

the amount arranged to be paid from that account

by an agreement made with that bank, such

person shall be deemed to have committed an

offence and shall, without prejudice to any other

provision of this Act, be punished with

imprisonment for a term which may extend to two

years, or with fine which may extend to twice the

amount of the cheque, or with both:

Provided that nothing contained in this section

shall apply unless—

(a) the cheque has been presented to the bank

within a period of six months from the date on

Page 10 of 25

which it is drawn or within the period of its

validity, whichever is earlier;

(b) the payee or the holder in due course of the

cheque, as the case may be, makes a demand for

the payment of the said amount of money by

giving a notice in writing, to the drawer of the

cheque, within thirty days of the receipt of

information by him from the bank regarding the

return of the cheque as unpaid; and

payment of the said amount of money to the payee

or as the case may be, to the holder in due course

of the cheque within fifteen days of the receipt of

the said notice.

Explanation.—For the purposes of this section,

“debt or other liability” means a legally

enforceable debt or other liability.”

5.1 The aforesaid provision contemplates that

where any cheque drawn by a person in the account

maintained by him is returned dishonoured and unpaid,

it amounts to a punishable offence. The ingredients of this

penal provision are inter alia that the cheque should have

been drawn by a person on an account maintained by him

with a banker, for payment of any amount of money to

another person from out of that account. Such cheque

should be returned by the bank for the reason of money

in the credit of the account being insufficient, etc. In order

Page 11 of 25

to make out the offence under Section 138 of the NI Act

complete, conditions stated in sub-clauses (a),(b) and (c)

of the Proviso should stand complied with. In the present

case, it is the condition (b) to the Proviso which is in focus.

5.1.1 In K.R. Indira vs. Dr. G. Adinarayana3

, this

Court enlisted the components, aspects and the acts, the

concatenation of which would make the offence under

Section 138 of the Act complete, to be these (i) drawing

of the cheque by a person on an account maintained by

him with a banker, for payment to another person from

out of that account for discharge in whole/in part of any

debt or liability, (ii) presentation of the cheque by the

payee or the holder in due course to the bank, (iii)

returning the cheque unpaid by the drawee bank for want

of sufficient funds to the credit of the drawer or any

arrangement with the banker to pay the sum covered by

the cheque, (iv) giving notice in writing to the drawer of

the cheque within 15 days of the receipt of information by

the payee from the bank regarding the return of the

cheque as unpaid demanding payment of the cheque

amount, and (v) failure of the drawer to make payment to

the payee or the holder in due course of the cheque, of

the amount covered by the cheque within 15 days of the

receipt of the notice.

(2003) 8 SCC 300

Page 12 of 25

5.2 The purport of group of words ‘makes a demand

for the payment of said amount of money’ occurring in

Proviso (b) to Section 138 of the Act, and in particular the

connotation ‘the said amount of money’ therein, hold key

to the answer to the issue posed. The words ‘said amount

of money’ figure in Proviso (b), Section 138. The effect

and application of this phrase was dealt with by this Court

in Suman Sethi vs. Ajay K. Churiwal & Anr.4

The

context of facts was that the appellant in that case issued

a cheque of Rs.20,00,000/- which was returned

dishonoured. In the notice issued under the Proviso (b),

the complainant called upon the drawer of the cheque to

pay cheque amount of Rs.20,00,000/- along with

incidental charges of Rs.1500/- spent on the cheque and

also Rs.340/- as notice charges. It was stated that failing

to pay would entail legal steps holding the drawer liable

for all costs and consequences thereof. The contention

was that since the incidental amount was demanded in the

notice along with the cheque amount, the notice was

rendered bad.

5.2.1 Pertinently, in the process, delineating on the

meaning of the words ‘said amount of money’, the Court

in Suman Sethi (supra) stated thus.

“We have to ascertain the meaning of the words

the “said amount of money” occurring in clauses

(b) and (c) to the proviso to Section 138. Reading

(2000) 2 SCC 380

Page 13 of 25

the section as a whole we have no hesitation to

hold that the above expression refers to the words

“payment of any amount of money” occurring in

the main Section 138 i.e. the cheque amount. So in

a notice, under clause (b) to the proviso, demand

has to be made for the cheque amount.” (Para 6)

5.2.2. The Court proceeded to state further,

“In the notice, demand has to be made for the

“said amount” i.e. the cheque amount. If no such

demand is made the notice no doubt would fall

short of its legal requirement. Where in addition

to the “said amount” there is also a claim by way

of interest, cost etc. whether the notice is bad

would depend on the language of the notice. If in

a notice while giving the break-up of the claim the

cheque amount, interest, damages etc. are

separately specified, other such claims for

interest, cost etc. would be superfluous and these

additional claims would be severable and will not

invalidate the notice.” (Para 8)

5.2.3 The Court observed that the demand in the

notice has to be made for the said amount which would be

the ‘cheque amount’. If no such demand is made the

notice would fall short of its legal requirement. In the facts

of that case, however, the Court held that since the

cheque amount in the notice was correctly stated, merely

because the respondent claimed in addition to the

cheque amount, the incidental charges and notice

Page 14 of 25

charges, which were severable, notice could not be

branded as bad in law.

5.2.4 It was further observed that however if in the

notice an ambiguous demand is made without specifying

the due amount under the dishonoured cheque, the notice

would fail to meet the legal requirement. In other words,

what was pinpointed was that the words ‘said amount’ in

Proviso (b) has to be same amount of the cheque which is

dishonoured. The object of the notice under Proviso (b) of

Section 138 of the Act was explained by this Court in

Central Bank of India vs. Saxons Farms & Ors.5

observing that the purpose of the notice is to give a

chance to the drawer of the cheque to rectify his omission.

Once the defaulter makes payment of the amount covered

by the cheque as mentioned in the notice within stipulated

15 days, he would stand absolved from his liability.

5.3 This Court in K.R. Indira (supra), again held

that specific demand for the payment of the sum covered

by the dishonoured cheque is required to be made in the

notice. In that case, there was a loan transaction in the

backdrop and the cheques were issued towards that

payment. In absence of specific demand for the cheque

amounts, the notice was held to be invalid. In Rahul

Builders vs. Arihant Fertilizers & Chemicals & Anr.6

the imperative character of the condition in the Proviso

(1999) 8 SCC 221

(2008) 2 SCC 321

Page 15 of 25

(b) to Section 138 of the Act was again highlighted.

Amount of Rs.8,72,409 was due to the appellant thereof

from respondent No.1. Respondent issued a cheque for

Rs.1,00,000/- which was dishonoured. The appellant sent

notice to the respondent asking him to remit Rs.8,72,409/-

5.3.1 This Court in Rahul Builders (supra) stated that

one of the conditions was service of a notice making

‘demand of the payment of the amount of cheque’ as is

evident from the use of the phraseology ‘payment of the

said amount of money,

“Service of a notice, it is trite, is imperative

in character for maintaining a complaint. It

creates a legal fiction. Operation of Section

138 of the Act is limited by the Proviso. When

the Proviso applies, the main section would

not. Unless a notice is served in conformity

with proviso (b) appended to Section 138 of

the Act, the complaint petition would not be

maintainable. Parliament while enacting the

said provision consciously imposed certain

conditions.” (Para 10)

5.4 In more recent decision of this Court in

Dashrathbhai Trikambhai Patel vs. Hitesh

Page 16 of 25

Mahendrabhai Patel & Anr.7

the dictum of law was

reiterate in the following words,

“The notice demanding the payment of the

“said amount of money” has been interpreted

by judgments of this Court to mean the cheque

amount. The conditions stipulated in the

provisos to Section 138 need to be fulfilled in

addition to the ingredients in the substantive

part of Section 138.” (Para 34.5)

5.5 The different High Courts hold the view in

unanimity. The High Court of Madhya Pradesh in

Gokuldas vs. Atal Bihari & Anr.8

observed that offence

under Section 138 of the NI Act is a technical offence

therefore every technical formality as required under the

Section must be complied with strictly. In that case, the

complaint was filed on the ground that cheque of

Rs.4,30,000/- was issued in lieu of repayment of loan of

Rs.4,30,000/-. A notice under Proviso (b) to Section 138 of

the NI Act was sent on the ground that cheque of

Rs.43,000/- was given. It was held that the notice was not

for ‘said amount of money’ to render it invalid.

5.5.1 In M/s. Yankay Drugs and Pharmaceuticals

Ltd. Vs. CITI bank9

, the High Court of Andhra Pradesh

(2023) 1 SCC 578

MCRC 5458/2013

2001 DCR 609

Page 17 of 25

reiterated the proposition that while demanding payment

by issuing notice under Section 138(b) of the NI Act, the

payee or the holder in due course must demand payment

of the amount covered by the cheque. It was stated that if

the demand is for a lesser amount or a higher amount not

covered by the cheque, which was dishonoured, then the

prosecution must fail in as much as the statutory

requirement of Section 138(b) is not fulfilled. In that case

the amount of cheque which was dishonoured by the bank

was Rs.9,972/-. But in the notice under Section 138(b) of

the NI Act, the complainant failed to make any demand for

payment of the said amount, instead it was stated in the

notice that the cheque was issued for Rs.3,871/-. The High

Court rightly stated that the notice fell short of the

statutory requirement.

5.5.2 Before the High Court of Punjab and Haryana, in

Chhabra Fabrics Private Limited vs. Bhagwan Dass10

it was a case where there was a discrepancy in

mentioning the number of cheque which was claimed to

be a typographical error. The High Court observed that

even if it was true that there was a typographical error in

the legal notice while typing out the cheque number, such

typographical error, if any, does not meet the compliance

of the mandatory provisions of Section 138 of the NI Act.

10 Crl. Appeal No.1772-SB of 2002

Page 18 of 25

5.5.3 The contention that the discrepancy in the

amount mentioned in the notice under Proviso (b) of

Section 138 of the NI Act was only a typographical error

to be overlooked, was again negatived by the High Court

of Karnataka in K. Gopal vs. Mr. T. Mukunda11. In that

case, the accused issued two cheques of Rs.2,00,000/-

each but in the legal notice the amount demanded was

only Rs.10,000/-. The argument advanced by the learned

counsel was that it was just a typographical error. The

High Court asserted that Section 138(b) of the NI Act

contemplates issuance of notice demanding the amount

covered under the cheque and in that view the notice has

to be treated as defective in law. The Delhi High Court in

Sunglo Engineering India Pvt. Ltd. Vs. The State &

Ors.12 quashed the complaint where the amount

demanded in the notice was double the amount of cheque

which was issued for Rs.1,00,00,000/-, akin to the facts of

the present case.

6. The interpretation of the words ‘said amount’ in

Proviso (b) to Section 138 of the NI Act as above is based

on the principle of statutory interpretation that penal

statute would always be construed and applied strictly.

This Court in M. Narayanan Nambiar vs. State of

Kerala13, spoke on the rule of construction of a penal

provision in its true perspective by quoting from the

11 Criminal Appeal No.1011 of 2010

12 MANU/DE/3805/2021

13 AIR 1963 SC 1116

Page 19 of 25

English decision in Dyke vs. Elliott14 which was again

referred to in a more recent decision of this Court in

Balaji Traders vs. State of U.P. & Anr.15

“A decision of the judicial Committee in

Dyke v. Elliot, (1) cited by the learned counsel

as an aid for construction neatly states the

principle and therefore may be extracted:-

Lord justice James speaking (1)(1872) L. R. 4

P.C. 184, 191, for the Board observes at P.191:

“No doubt all penal Statutes are to be

construed strictly, that is to say, the Court must

see that the thing charged as an offence is

within the plain meaning of the words used,

and must not strain the words on any notion

that there has been a slip, that there has been

a casus omissus, that the thing is so clearly

within the mischief that it must have been

intended to be included if thought of. On the

other hand, the person charged has a right to

say that the thing charged although within the

words, is not within the spirit of the

enactment.””

6.1 The Privy Council decision in Dyke vs. Elliott

(supra) quoted by this Court with approval stated that the

14 (1872) 4 PC 184

15 2025 SCC OnLine SC 1314,

Page 20 of 25

court must see that the thing charged as an offence is

within the plain meaning of the words used and must not

strain the words on any notion that there has been a slip,

that there has been a casus omissus, that the thing is so

clearly within the mischief that it must have been

intended to be included if thought of. It was thereafter

observed that where the thing is brought within the words

and within the spirit, there a penal enactment is to be

construed, like any other instrument, according to the fair

commonsense meaning of the language used, and the

court is not to find or make any doubt or ambiguity in the

language of a penal statute.

6.2 The interpretative canon of strict construction of

penal statute was highlighted also in the Craies Statute

Law16 wherein the decision of U.S. v. Wiltberger17 was

referred to observing.

“The distinction between a strict

construction and a more free one has, no

doubt, in modern times almost disappeared,

and the question now is, what is the true

construction of the statute? I should say that in

a criminal statute you must be quite sure that

the offence charged is within the letter of the

law. This rule is said to be founded on the

tenderness of the law for the rights of

16 7th Edn. at p.529

17 18 US 76 (1820)

Page 21 of 25

individuals, and on the plain principle that the

power of punishment is vested in the

Legislature, and not in the judicial department,

for it is the Legislature, not the Court, which is

to define a crime and ordain its punishment.”

6.3 Having noticed the above principle of

construction of penal statute, this Court in Suman Sethi

(supra) concluded.

“ There is no ambiguity or doubt in the

language of Section 138. Reading the entire

section as a whole and applying common

sense, from the words, as stated above, it is

clear that the legislature intended that in a

notice under clause (b) to the proviso, the

demand has to be made for the cheque

amount.” (Para 7)

6.4 The proposition that the penal provision has

to be construed strictly was again asserted by this

Court in K.K. Ahuja vs. V.K. Vora & Anr.18 In the

context of provision of Sections 141 and 138 of the NI

Act it was observed in para 17 of the judgment that

penal statutes are to be construed strictly and that if

conditions are scraped, the courts will insist upon

strict literal compliance. It was stated that there is no

question of inferential or implied compliance.

18 (2009) 10 SCC 48

Page 22 of 25

7. When the Proviso (b) to Section 138 stipulates

the service of notice as one of the conditions for

constituting the offence, and when the words ‘said

amount’ is incorporated in the language of the provision,

it is the amount which is specifically referable to the

amount recoverable under the cheque in question.

Reading Section 138 of the Act in a composite manner, the

word ‘said amount’ occurring in the Proviso (b) is

connectible with and operates in conjunction with

language in the parent part of the Section ‘where any

cheque drawn by a person ……of any amount of money’.

7.1 The words ‘said amount’ and the phrase ‘any

amount of money’ have the same purport signifying the

cheque amount. They operate hand-in-hand for the

purpose of applicability of the Section. The nexus or

linkage between the two is enacted by the Legislature

with a purpose of making the two to be the same and

inseparable components, the former describing the

offence and the latter denoting the condition to be

fulfilled for constituting the offence.

8. From the afore-stated reiterative

pronouncements and the principles propounded by the

courts, the position of law that emerges is that the notice

demanding the payment of the amount covered by the

dishonoured cheque is one of the main ingredients of the

offence under Section 138 of the NI Act. In the event of the

main ingredient not being satisfied on account of

Page 23 of 25

discrepancy in the amount of cheque and one mentioned

in the notice, all proceedings under Section 138 of the NI

Act would fall flat as bad in law. The notice to be issued

under Proviso (b) to Section 138 of the Act, must mention

the same amount for which the cheque was issued. It is

mandatory that the demand in the statutory notice has to

be the very amount of the cheque. After mentioning the

exact cheque amount, the sender of the service may claim

in the notice amounts such as legal charges, notice

charges, interest and such other additional amounts,

provided the cheque amount is specified to be demanded

for payment.

8.1 A failure in above regard, namely when the

cheque amount is not mentioned in the Proviso (b) notice

or the amount different than the actual cheque amount is

mentioned, in the notice, such notice would stand invalid

in eye of law. The notice in terms of Proviso (b) being a

provision in penal statute and a condition for the offence,

it has to be precise while mentioning of the amount of the

cheque which is dishonoured. Even if the cheque details

are mentioned in the notice but corresponding amount of

cheque is not correctly mentioned, it would not bring in

law the validity for such notice. Here the principle of

reading of notice as a whole is inapplicable and

irrelevant. Any elasticity cannot be adopted in the

interpretation. It has to be given technical interpretation.

Page 24 of 25

8.2 The condition of notice under Proviso (b) is

required to be complied with meticulously. Even

typographical error can be no defence. The error even if

typographical, would be fatal to the legality of notice,

given the need for strict mandatory compliance. And in

the facts of the present case, the explanation that

mentioning of wrong amount in the cheque was in the

nature of typographical or inadvertent error could hardly

be accepted, for, the so called mistake occurred and

recurred in both the notices dated 08.06.2012 and

14.09.2012.

9. When the provision is penal and the offence is

technical, there is no escape from holding that the ‘said

amount’ in proviso (b) cannot be the amount other than

mentioned in the cheque in question for dishonour of

which the notice is received, nor the mentioning of

omnibus amount in the notice would fulfil the

requirement. It has to be held that in order to make a valid

notice under the Proviso (b) to Section 138 of the NI Act,

it is mandatory that ‘said amount’ to be mentioned therein

is the very amount of cheque, and none other.

10. Reverting to recollect the facts of this case, the

cheque which was drawn by the respondent was for

Rs.1,00,000/- whereas in the notice issued under Proviso

(b) to Section 138 of the NI Act against the respondent,

appellant mentions the amount of Rs.2,00,000/-. The

rigours of law on this score being strict, the defence

Page 25 of 25

would not hold good that the different amount mentioned

in the notice was out of inadvertence. Even if the cheque

number was mentioned in the notice, since the amount

was different, it created an ambiguity and differentiation

about the ‘said amount’. The notice stood invalid and bad

in law. The order of quashment of notice was eminently

proper and legal.

11. No case is made out for interfering with the

impugned order of the High Court. The appeals stand

dismissed.

In view of the disposal of the main appeals, all

the interlocutory applications as may be pending stands

disposed of.

………………………………..,CJI.

[ B.R. GAVAI]

………………………………….., J.

[ N.V. ANJARIA ]

NEW DELHI;

SEPTEMBER 19, 2025.

(VK)

Friday, September 19, 2025

Whether anticipatory bail should be granted to retired revenue officers who certified mutation entries allegedly founded on forged documents. Whether long delay in lodging FIR (≈20+ years) and prior cancellation of mutation entries negate the requirement for custodial interrogation or attract grant of anticipatory bail. Whether the long pendency of anticipatory bail applications violates principles of speedy adjudication of liberty claims.

Anna Waman Bhalerao & Anr. v. State of Maharashtra, Criminal Appeal Nos. 4004–4005 of 2025 (2025 INSC 1114; judgment dated 12 Sept 2025): Appeals against Bombay High Court order (04.07.2025) refusing anticipatory bail in connection with FIR No.30/2019 (mutations certified on allegedly forged documents). Supreme Court affirms High Court’s refusal: though delay of >20 years and prior cancellation of mutation entries (1998) are noted, prima facie material suggests transactions were founded on forged powers of attorney and sale deed, and custodial interrogation may be necessary to trace complicity. Court also criticises protracted pendency of bail matters and issues directions to High Courts to dispose of bail/anticipatory bail applications expeditiously (preferably within two months), but declines to grant relief; appellants are free to apply for regular bail.

Key facts (very brief)

FIR No. 30/2019 registered 26.01.2019 based on complaint about sale (dated 18.05.1996) effected on alleged forged powers of attorney.
Mutation entries (Nos.15177, 15180) recorded in 1996; cancelled by SDO on 30.09.1998.
Appellants were Circle Officer and Talathi who certified mutations; retired later. Initially not named, later arraigned as A5 & A6.
Anticipatory bail applications pending since 2019; Sessions Court rejected; High Court rejected (04.07.2025) but extended interim protection until 01.08.2025. Appeals filed to SC.

Issues

Whether anticipatory bail should be granted to retired revenue officers who certified mutation entries allegedly founded on forged documents.
Whether long delay in lodging FIR (≈20+ years) and prior cancellation of mutation entries negate the requirement for custodial interrogation or attract grant of anticipatory bail.
Whether the long pendency of anticipatory bail applications violates principles of speedy adjudication of liberty claims.

Supreme Court holdings (pointwise)

Refusal of anticipatory bail affirmed. The High Court’s prima facie view that transaction is vitiated by forged powers of attorney and that A1 was direct beneficiary is sustainable; appellants’ certification of the mutation (in official capacity) cannot be treated merely as procedural lapse at the prima facie stage. Custodial interrogation may be necessary to trace chain/complicity.
Delay and cancellation noted but not dispositive. The Court acknowledged the long delay and that mutation entries were annulled in 1998, but held these facts do not erase the appellants’ prima facie role in certifying the entries; delay does not automatically prohibit custodial interrogation when gravity and prima facie material require it.
Conduct of appellants during investigation relevant. Court observed appellants had interim protection for nearly six years and did not cooperate fully with investigators—this weighed against them.
Strong directions on prompt disposal. The Court reiterates established precedent: applications affecting liberty (bail/anticipatory bail) must be disposed expeditiously (guidance: usually within two months; anticipatory bail within six weeks in earlier cases), and High Courts must take administrative steps to prevent indefinite pendency.
Remedy left open. Appellants may apply for regular bail before competent court; such application to be considered on merits uninfluenced by observations in this judgment.

2025 INSC 1114

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

Criminal Appeal No. 4004 of 2025

(Arising out of SLP (Crl.) No. 11128 of 2025)

ANNA WAMAN BHALERAO … APPELLANT(S)

VERSUS

STATE OF MAHARASHTRA … RESPONDENT(S)

WITH

Criminal Appeal No. 4005 of 2025

(Arising out of SLP (Crl.) No. 11108 of 2025)

J U D G M E N T

R. MAHADEVAN, J.

Leave granted in both the SLPs.

2. Both these criminal appeals arise from a common judgment dated

04.07.2025 passed by the High Court of Judicature at Bombay1

in Anticipatory

Bail Application Nos.1790 of 2019 and 1844 of 2019, whereby the appellants’

applications seeking pre-arrest bail in connection with F.I.R. No. 30/2019, came

to be dismissed.

1 Hereinafter referred to as “the High Court”

3. Based on a complaint lodged by one Vikas Narsingh Vartak, FIR No.

30/2019 was registered on 26.01.2019 at Arnala Sagari Police Station, District

Palghar, Maharashtra against Mahesh Yashwant Bhoir and others, for offences

punishable under Sections 420, 463, 464, 465, 467, 468, 471 and 474 read with

Section 34 of the Indian Penal Code, 18602

3.1. In the complaint, it was alleged that the complainant’s father, Narsingh

Govind Vartak died on 29.01.1978. Out of his five brothers, four had died, and

one Harihar Govind Vartak was still alive. It was further alleged that the land

bearing Survey No. 29, Hissa No. 1 (Old) and Survey No. 233, Hissa No.1(A)

(New), admeasuring 1.46 hectares situated at Village Agashi, was jointly owned

by Narsingh Govind Vartak, Hari Govind Vartak, Mahadev Govind Vartak,

Parshuram Govind Vartak, Raghunandan Govind Vartak, Harihar Govind Vartak,

along with Purushottam Manohardas Shah, Amrutlal Manohardas Shah, and

Kantilal Manohardas Shah, and their names stood recorded in the revenue

records.

3.2. On 13.05.1996, a Power of Attorney was purportedly executed in favour of

Vijay Anant Patil (A2) by Narsingh Govind Vartak, and his brothers, and another

Power of Attorney was executed in favour of Rajesh Kamat (A3) by the Shahs.

On the strength of these Powers of Attorney, on 18.05.1996, a sale deed was

2 For short, “IPC”

executed by A2 and A3 in favour of Mahesh Yashwant Bhoir (A1) for a

consideration of Rs.8 lakhs. Mutation Entry Nos. 15177 and 15180 were recorded

in 1996 on the basis of this sale deed.

3.3. At the relevant point of time, the present appellants were serving as Circle

Officer and Talathi respectively in the Revenue Department of the State of

Maharashtra. Subsequently, a revision application was filed before the SubDivisional Officer, Bhiwandi seeking cancellation of the said mutation entries,

and by order dated 30.09.1998, Mutation Entry Nos. 15177 and 15180 were

accordingly cancelled.

4. The appellants were not initially named in the FIR. They were later

arraigned as Accused Nos. 5 and 6 on allegations that, in their official capacity,

they had certified the said mutation entries on the basis of forged documents,

thereby facilitating the illegal transfer of ownership of the immovable property.

Apprehending arrest, they preferred Anticipatory Bail Application Nos.561 and

562 of 2019 before the Court of the Additional Sessions Judge, Vasai3

. By order

dated 06.06.2019, the Sessions Court granted interim protection to them.

However, upon hearing both sides, the Sessions Court, by order dated 21.06.2019,

rejected their applications. Aggrieved, the appellants approached the High Court

by filing Anticipatory Bail Application Nos. 1790 and 1844 of 2019, in which,

interim protection was granted from time to time. Finally, by the impugned

3 For short, “the Sessions Court”

judgment dated 04.07.2025, the High Court rejected the anticipatory bail

applications, but granted interim protection for a period of four week, which

expired on 01.08.2025. Thereafter, the appellants have preferred the present

appeals before this Court.

5. The learned Senior Counsel appearing for the appellants submitted that the

appellants were originally not named in the subject F.I.R and there is a prima

facie case for grant of anticipatory bail in their favour. On 16.08.2019 and

22.08.2019, the High Court granted interim protection, which was periodically

extended and lastly continued by the impugned order dated 04.07.2025 for a

further period of four weeks, expiring on 01.08.2025.

5.1. It was contended that the appellants, who were serving as Circle Officer

and Talathi respectively at the relevant time and have since retired, acted purely

in their official capacity while certifying mutation entries on the basis of a

registered sale deed presented before them. They had no role in the creation or

execution of the alleged forged powers of attorney or sale deed, nor any direct

link with the subsequent transfer in favour of A1. There is also no allegation of

personal gain, dishonest intention, or conspiracy. The only act attributed to them

is certification of mutation entries on the strength of facially valid documents.

5.2. It was urged that in the absence of material to show knowledge of forgery,

dishonest inducement, or collusion, the essential ingredients of the offences under

Sections 420, 463, 467, 468, and 471 IPC are not attracted. Mere administrative

endorsement, without fraudulent intent, cannot amount to cheating or forgery.

The appellants neither created nor used forged documents, nor induced any

person to part with property. At best, the allegations, even if taken at face value,

may constitute a procedural lapse in discharge of official duties, which does not

give rise to criminal liability.

5.3. Learned Senior Counsel pointed out that the very mutation entries in

question (Nos. 15177 and 15180) had been cancelled by the Sub-Divisional

Officer as far back as 30.09.1998. Once annulled by a competent authority, those

entries stood nullified ab initio, leaving no continuing illegality or consequence.

Thus, no enduring wrongful gain or loss can be attributed to the appellants.

5.4. It was further submitted that the FIR was lodged after an unexplained delay

of over 20 years from the alleged incident of 1996. The complainant, being aware

of the cancellation in 1998, remained silent for two decades. Such extraordinary

delay gravely prejudices the appellants’ right to a fair investigation and defence,

particularly as the allegations relate to administrative acts performed in official

capacity long ago. The delay undermines the credibility of the prosecution’s case.

5.5. It was also urged that the entire case rests on documentary evidence already

in existence. Custodial interrogation of the appellants, retired government officers

with no criminal antecedents, is neither necessary nor justified. Furthermore, they

are willing to cooperate with the investigation and furnish all documents as

required.

5.6. In support, reliance was placed on Siddaram Satlingappa Mehtre v. State

of Maharashtra4

, wherein this Court emphasised that anticipatory bail is intended

to protect personal liberty where there are reasonable grounds to believe that the

accused will neither abscond nor misuse the concession of bail.

5.7. Accordingly, it was contended that the appellants have been falsely

implicated, that no offence is made out on the basis of the FIR or the material on

record, and that custodial arrest would serve no purpose. Without considering

these factors, the High Court erred in rejecting the applications for anticipatory

bail. Therefore, the impugned judgment deserves to be set aside and the appeals

be allowed.

6. We have heard the submissions of the learned Senior Counsel appearing

for the appellants and perused the record.

7. It appears that the original owners of the subject property, namely the Shahs

and the Vartaks, had expired between 1969 and 1990. Nevertheless, powers of

attorney were purportedly executed in the names of the deceased persons, on the

basis of which a sale deed dated 18.05.1996 came to be executed in favour of

Mahesh Yashwant Bhoir (A1). Relying on the said sale deed, the mutation entries

were certified by the appellants (A5 and A6).

(2011) 1 SCC 694

8. The FIR pertains to events of 1996-98 and the allegation against the

appellants is that, on the strength of forged and fabricated documents, fraudulent

entries were made in the mutation register, facilitating the illegal transfer of

ownership. Initially, their names did not find place in the FIR, however, they were

subsequently, arraigned as A5 and A5. At the relevant point of time, the appellants

were serving as Circle Officer and Talathi, and they retired from service in 2013

and 2019 respectively. The FIR itself was lodged after a delay of more than 20

years from the alleged incident, and no departmental proceedings were initiated

against the appellants either during their service or after retirement. It is not in

dispute that their anticipatory bail applications remained pending before the High

Court from 2019, and were finally dismissed by the impugned judgment dated

04.07.2025, though they continued to enjoy interim protection until 01.08.2025.

It is also undisputed that the mutation entries certified by the appellants had

already been cancelled by the Sub-Divisional Officer on 30.09.1998.

9. The principal contention advanced on behalf of the appellants is that the

prosecution is vitiated by extraordinary and unexplained delay. The complainant,

having knowledge of the cancellation as early as 1998, remained silent for two

decades. By the time, FIR No. 30 of 2019 was lodged on 26.01.2019, the mutation

entries stood annulled, leaving no subsisting illegality or wrongful gain. It was

urged that the only role attributed to the appellants is certification of mutation

entries in their official capacity, based on documents that appeared facially valid.

They had no involvement in the creation or execution of the alleged forged

powers of attorney or sale deed, nor did they derive any personal benefit or act in

collusion with the co-accused. The appellants retired with unblemished records,

and there are no criminal antecedents against them.

10. It was the contention of the State before the High Court that A1 was the

direct beneficiary of the fraudulent transaction founded upon forged powers of

attorney. The appellants (A5 and A6), instead of adhering to their statutory

obligations under Section 15(2) of the Maharashtra Land Revenue Code, certified

the mutation entries thereby facilitating the transfer of immovable property. It was

further alleged that despite enjoying interim protection since 2019, the appellants

failed to cooperate with the investigation and prolonged the proceedings.

11. We find that the High Court rightly noted that the alleged powers of

attorney were executed in 1996 long after the death of the original owners and

that the sale deed dated 18.05.1996 executed on the strength of such documents,

is prima facie vitiated, with A1 appearing to be the direct beneficiary of such a

transaction. The High Court further observed that the appellants, while serving in

the Revenue Department, ignored their statutory duties and facilitated the

mutation in favour of A1, and hence, their conduct cannot be brushed aside as a

mere procedural lapse.

12. We are conscious of the fact that whether the appellants shared any criminal

intent or abetted the acts of A1 is a matter for trial, and any conclusive finding at

this stage would be inappropriate. However, while considering anticipatory bail,

this Court must balance the liberty of individuals against the legitimate

requirements of investigation.

13. The plea that the mutation entries were cancelled in 1998, though noted,

does not efface the appellants’ alleged role in certifying those entries in the first

place – a matter that must be adjudicated at trial.

14. Although there has been a long delay in the initiation of proceedings, the

gravity of the allegations, the alleged abuse of official position, and the prima

facie findings of the High Court that custodial interrogation is necessary, cannot

be diluted merely on the ground of delay. Even in a case based largely on

documentary evidence, custodial interrogation may be essential to trace the chain

of transactions, ascertain complicity, and prevent further suppression or

tampering of records. Moreover, the appellants, despite enjoying interim

protection for nearly six years, did not extend due cooperation to the

investigation. In these circumstances, we see no reason to interfere with the

judgement under challenge.

15. Apart from the relief of anticipatory bail, a significant issue that arises for

consideration herein is the inordinate delay in the disposal of the appellants’

applications for anticipatory bail by the High Court. The record discloses that the

applications remained pending for several years without any final adjudication,

although interim protection was extended to the appellants from time to time,

including even after the dismissal of the applications, until 01.08.2025. It is true

that the appellants themselves did not suffer prejudice, having continued to enjoy

interim protection. Nevertheless, this Court has consistently underscored, in a

long line of decisions, that applications affecting personal liberty – particularly

bail and anticipatory bail – ought not to be kept pending indefinitely. The grant

or refusal of bail, anticipatory or otherwise, is ordinarily a straightforward

exercise, turning on the facts of each case. There is, therefore, no justification for

deferring decision-making and allowing a sword of Damocles to hang over the

applicant’s head. In matters concerning liberty, bail courts must be sensitive and

ensure that constitutional ethos is upheld. While docket explosion remains a

chronic challenge, cases involving personal liberty deserve precedence.

16. In this context, we may refer to the following decisions of this Court. In

Nikesh Tarachand Shah v. Union of India5

, Justice R. F. Nariman while

adverting to the Magna Carta in the context of pre-arrest bail, observed as under:

“15. The provision for bail goes back to Magna Carta itself. Clause 39, which

was, at that time, written in Latin, is translated as follows:

“No free man shall be seized or imprisoned or stripped of his rights or

possessions, or outlawed or exiled, or deprived of his standing in any other

(2018) 11 SCC 1

way, nor will we proceed with force against him, or send others to do so,

except by the lawful judgment of his equals or by the law of the land.”

It is well known that Magna Carta, which was wrung out of King John by the

Barons on 15-6-1215, was annulled by Pope Innocent III in August of that very

year. King John died one year later, leaving the throne to his 9 year old son,

Henry III. It is in the reign of this pious King and his son, Edward I, that Magna

Carta was recognised by kingly authority. In fact, by the Statutes of Westminster

of 1275, King Edward I repeated the injunction contained in Clause 39 of Magna

Carta. However, when it came to the reign of the Stuarts, who believed that they

were kings on earth as a matter of divine right, a struggle ensued between

Parliament and King Charles I. This led to another great milestone in the history

of England called the Petition of Right of 1628. Moved by the hostility to the Duke

of Buckingham, the House of Commons denied King Charles I the means to

conduct military operations abroad. The King was unwilling to give up his

military ambition and resorted to the expedient of a forced loan to finance it. A

number of those subject to the imposition declined to pay, and some were

imprisoned; among them were those who became famous as “the Five Knights”.

Each of them sought a writ of habeas corpus to secure his release. One of the

Knights, Sir Thomas Darnel, gave up the fight, but the other four fought on. The

King's Bench, headed by the Chief Justice, made an order sending the Knights

back to prison. The Chief Justice's order was, in fact, a provisional refusal of bail.

Parliament being displeased with this, invoked Magna Carta and the Statutes of

Westminster, and thus it came about that the Petition of Right was presented and

adopted by the Lords and a reluctant King. Charles I reluctantly accepted this

Petition of Right stating, “let right be done as is desired by the petition”. Among

other things, the petition had prayed that no free man should be imprisoned or

detained, except by authority of law.

16. In Bushell's case [Bushell's case, 1670 Vaughan 135 : 124 ER 1006] , decided

in 1670, Sir John Vaughan, C.J. was able to state that : (ER p. 1007)

“The writ of habeas corpus is now the most usual remedy by which a man is

restored again to his liberty, if he have been against law deprived of it.”

Despite this statement of the law, one Jenkes was arrested and imprisoned for

inciting persons to riot in a speech, asking that King Charles II be petitioned to

call a new Parliament. Jenkes went from pillar to post in order to be admitted to

bail. The Lord Chief Justice sent him to the Lord Chancellor, who, in turn, sent

him to the Lord Treasurer, who sent him to the King himself, who, “immediately

commanded that the laws should have their due course”. (See Jenke's

case [Jenke's case, (1676) 6 How St Tr 1189] , How St Tr at pp. 1207 & 1208). It

is cases like these that led to the next great milestone of English history, namely,

the Habeas Corpus Act, 1679. This Act recited that many of the King's subjects

have been long detained in prison in cases where, by law, they should have been

set free on bail. The Act provided for a habeas corpus procedure which plugged

legal loopholes and even made the King's Bench Judges subject to penalties for

non-compliance.

17. The next great milestone in English history is the Bill of Rights, 1689, which

was accepted by the only Dutch monarch that England ever had, King William

III, who reigned jointly with his wife Queen Mary II. It is in this document that the

expression “excessive bail ought not to be required…” first appears in Chapter 2

Clause 10.

18. What is important to learn from this history is that Clause 39 of the Magna

Carta was subsequently extended to pre-trial imprisonment, so that persons could

be enlarged on bail to secure their attendance for the ensuing trial. It may only

be added that one century after the Bill of Rights, the US Constitution borrowed

the language of the Bill of Rights when the principle of habeas corpus found its

way into Article 1 Section 9 of the US Constitution, followed by the Eighth

Amendment to the Constitution which expressly states that, “excessive bail shall

not be required, nor excessive fines imposed, nor cruel and unusual punishments

inflicted”. We may only add that the Eighth Amendment has been read into Article

21 by a Division Bench of this Court in Rajesh Kumar v. State [Rajesh

Kumar v. State, (2011) 13 SCC 706 : (2012) 2 SCC (Cri) 836] at paras 60 and

61.”

16.1. In Rajesh Seth v State of Chhattisgarh6

, the petitioner filed an application

under Section 438 Cr.P.C seeking anticipatory bail, along with an I.A. seeking

ex-parte ad-interim protection. On 17.01.2022, while admitting the application,

the High Court directed it to be listed for final hearing ‘in due course’. Aggrieved

thereby, the petitioner approached this court contending that till date, the matter

had neither been listed for hearing nor any order passed on the plea for interim

protection during the pendency of the anticipatory bail application. This Court

observed as under:

“When a person is before the Court and that too in a matter involving personal

liberty, least what is expected is for such a person to be given the result one way

or the other, based on the merit of his case and not push him to a position of

uncertainty or be condemned without being heard, when it matters.

6 SLP (Crl) 1247/2022

When an application for anticipatory bail was listed before the learned Single

Judge, which was also accompanied by an application for ad-interim relief, the

learned Judge should have decided the same one way or the other, so far as the

ad-interim prayer or should have taken up for consideration after giving some

reasonable time to the State. Even if admitted, the learned Judge should have

listed the same for final disposal on a specific date, keeping in view the nature of

relief sought in the matter. Not giving any specific date, particularly in a matter

relating to anticipatory bail, is not a procedure which can be countenanced. We

are of the considered view that this type of indefinite adjournment in a matter

relating to anticipatory bail, that too after admitting it, is detrimental to the

valuable right of a person.”

16.2. In Sanjay v. The State (NCT of Delhi) & another7

, the application for bail

was filed on 24.05.2022, but was posted to 31.08.2022 without granting any

interim protection. Taking note of this circumstance, this Court held as under:

“We are of the considered view that in a matter involving personal liberty, the

Court is expected to pass orders in one way or other taking into account the merits

of the matter at the earliest.”

…..

“At any rate, posting an application for anticipatory bail after a couple of months

cannot be appreciated.”

16.3. In Rajanti Devi v. Union of India8

, this Court noted that the Patna High

Court had heard the anticipatory bail application and reserved judgment on

07.04.2022. However, the judgment came to be delivered only on 04.04.2023.

Thus, the matter remained pending for nearly one year after the conclusion of

arguments. This Court expressed strong displeasure that an anticipatory bail

petition could be kept pending for such an inordinate period and underscored the

7 SLP (Crl.) No. 5675 of 2022

8 2023 SCC OnLine SC 1595

importance of the expeditious disposal of bail and anticipatory bail applications.

The following paragraphs are apposite in this regard:

“5. Though, we are very much alive about the magnitude of the bail applications

being filed and heard by the Courts at all levels, we cannot be oblivious to the

delay which takes place in the disposal of the Bail applications. This Court, time

and again, has expressed great concern about the delay taking place in the

disposal of the bail applications and has issued guidelines from time to time.

7. In a recent decision in the case of Satendra Kumar Antil Vs. Central Bureau

of Investigation and Anr., (2022) 10 SCC 51, this Court has directed to dispose

of the bail applications in two weeks. The said direction read as under: -

“100.11. Bail applications ought to be disposed of within a period of two

weeks except if the provisions mandate otherwise, with the exception being

an intervening application. Applications for anticipatory bail are expected

to be disposed of within a period of six weeks with the exception of any

intervening application.”

8. Despite the aforestated guidelines/directions having been issued by this Court

from time to time, it appears that the cases like the present one, keep on happening

and the bail applications are not being heard expeditiously and if heard, are not

being decided within the stipulated time period.

9. In view of the above, it is directed that all the courts shall scrupulously follow

the directions/ guidelines issued by this Court in the aforestated decisions.”

16.4. In Sumit Subhaschandra Gangwal & another v. the State of Maharashtra

& another9

, this Court while dealing with the issue relating to the inordinate delay

in passing the order, observed as follows:

“6. ...This Court has consistently right from the case of Niranjan Singh and

Another v. Prabhakar Rajaram Kharote and Others, (1980) 2 SCC 559, held that

detailed elaboration of evidence has to be avoided at the stage of grant/rejection

of bail/anticipatory bail. We do not appreciate such a lengthy elaboration of

evidence at this stage.

7. Another factor that needs to be noted is that though the order was reserved on

25.01.2023, the learned Single Judge of the High Court has pronounced the order

on 01.03.2023 i.e. after a period of one month and one week.

9 SLP (Crl.) No. 3561/2023

8. It is always said that in the matters pertaining to the liberty of citizens, the

Court should act promptly. In our view, such an inordinate delay in passing an

order pertaining to liberty of a citizen is not in tune with the constitutional

mandate.”

16.5. In Kavish Gupta v. State of Chhattisgarh10, this Court had occasion to

consider the interim order passed by a Single Judge of the Chhattisgarh High

Court on an application for anticipatory bail filed by the petitioner – accused in

respect of offences under sections 420, 467, 468, 409, 471 and 34 IPC. By the

said order, while the matter was taken up for consideration and the case diary was

also called for, instead of fixing a specific date for further hearing, the Court

directed that the case be listed “in its chronological order”. The operative

observation in the order reads as follows:

“1. This Court held and reiterated that decisions on anticipatory bail applications

/ bail applications, are concerned with the liberty and therefore, shall be taken up

and disposed of, expeditiously. On 21.02.2022 in SLP (Crl) No.1247/2022, a

Bench of three Judges of this Court reiterated the same view. Virtually, this Court

deprecated the practice of admitting the bail applications and thereafter deferring

decisions on it unduly. The case on hand reveals recurrence of such a situation

despite the repeated pronouncements of this Court on very issue. In the case on

hand, the petitioner who is accused No.1 in F.I.R. No.218/2023 of Police Station

Vidhan Sabha, Raipur, Chhattisgarh registered under Section 420 read with

Section 34 of the Indian Penal Code, 1860. Later, Sections 467, 468, 409 and 471,

IPC were also added.

3. The aforestated order would reveal that on 06.12.2023, the matter was taken

up for consideration and after hearing the petitioner, it was admitted and the case

Diary was called for. At the same time, its discernible from the order that the case

was not specifically posted to any date. What was ordered was to list the matter

in its chronological order. When the matter would be placed before the Court for

further consideration, in such circumstances, is nothing but a matter of guess.

10 SLP (Crl.) no. 16025/2023 with SLP (Crl.) No. 16047/2023

4. We have no hesitation to hold that such an order sans definiteness in the matter

relating to anticipatory bail/regular bail, that too after admitting the matter, would

definitely delay due consideration of the application and such an eventuality will

be detrimental to the liberty of a person. It is taking into account such aspects that

this Court held that such matters pertaining to personal liberty shall be taken up

and decided at the earliest. It is a matter of concern that despite repeated orders,

the same situation continues.

5. Hence, we request the learned Single Judge of the High Court to dispose of the

pending anticipatory bail application, pending adjudication before him, on its

own merits and in accordance with law, expeditiously and preferably within a

period of four weeks from the receipt/production of this Order. Till such time, we

grant interim protection from arrest to the petitioner.”

16.6. In Mahatab Ali v. State of West Bengal & Anr.11, the petitioner therein,

had been in custody for over one year and eleven months. The High Court noted

that only eight out of 43 charge-sheeted witnesses had been examined, and that

there was no likelihood of the trial concluding in the near future. The State

opposed the bail application, citing the recovery of a gun and six rounds of

ammunition from the petitioner, coupled with forensic evidence linking the

ammunition to the bullet recovered from the body of the deceased. It was further

urged that the petitioner’s bail had been rejected on two earlier occasions. The

High Court, however, held that prolonged incarceration without conclusion of

trial amounted to a violation of the accused’s fundamental right to speedy trial

and personal liberty. This Court affirmed the said view, observed as follows:

“When there is a huge filing and pendency of the bail applications, we wonder

why regular bail applications and anticipatory bail applications are being heard

by the Division Bench of this High Court especially when in case of all other High

Courts, the bail matters are being heard by the learned Single Judges. The

question is whether two Hon'ble Judges of the High Court should be devoting time

for dealing with regular bail applications.

11 SLP (Criminal) Diary No. 60183/2024

We, therefore, direct the Registrar (Judicial) of the High Court of Calcutta to place

on record a report why regular bail applications/anticipatory bail applications

are being heard by the Division Bench. He is directed to furnish the data of bail

applications and anticipatory bail applications filed in 2024 and pendency of such

applications as of today”.

16.7. In Ashok Balwant Patil v. Mohan Madhukar Patil & Ors. Etc.12, the

application for anticipatory bail remained undecided for a period of more than

four years. This Court, taking note of the inordinate delay in considering the

application, held as follows:

“4. We are amazed with the speed in which the application for anticipatory bail is

considered by the High Court of Bombay.

5. Initially, an ad interim anticipatory bail was granted to the respondent(s)

accused on 10.04.2019. The matter came to be adjourned from time to time only

observing that on account of paucity of time, the Court is not in a position to hear

the matter. The only effective order that is passed is on 17.10.2022, on which day

the time was given to the prosecution to place on record the material in support

of their case.

6. No doubt, that the liberty of a citizen is a most important factor. However, at

the same time, the consideration of an application for permanent bail on merits is

also necessary. We, therefore, request the High Court to take up the matter

expeditiously and decide the same finally within a period of one month from

today.”

16.8. In Amol Vitthal Vahile v. The State of Maharashtra13

, the accused, having

remained in custody for over seven years, preferred a bail application before the

Bombay High Court. The High Court, however, without entering into the merits

of the application, directed the applicant to approach the trial court for bail.

Aggrieved thereby the accused preferred a criminal appeal before this Court. By

12 SLP (Crl.) Diary No. 1540/2024 dated 25.01.2024

13 Criminal Appeal No. 545/2024

a previous order dated 29.01.2024, this Court expressed concern over the failure

of the High Court to exercise its jurisdiction to adjudicate the bail application on

merits, and observed as follows:

“3. Needless to state that Article 21 of the Constitution of India is the soul of the

Constitution as the liberty of a citizen is of paramount importance. Not deciding

the matter pertaining to liberty of a citizen expeditiously and shunting away the

matter on one or the other ground would deprive the party of their precious right

guaranteed under Article 21 of the Constitution of India.

4. We have come across various matters from the High Court of Bombay where

the bail/anticipatory bail applications are not being decided expeditiously.

6. We, therefore, request the Hon’ble the Chief Justice of the High Court of

Bombay to convey our request to all the learned Judges exercising the criminal

jurisdiction to decide the matter pertaining to bail/anticipatory bail as

expeditiously as possible.”

16.9. This Court in Dhanraj Aswani v. Amar S. Mulchandani14 emphasized

that anticipatory bail under section 438 is, inter alia, a remedial provision

safeguarding personal liberty, and traced the evolution of the concept of

anticipatory bail in the following paragraphs:

“D. Analysis

(i) Evolution of the concept of anticipatory bail

23. The Code of Criminal Procedure, 1898 (for short “the 1898 Code”) did not

contain any specific provision analogous to Section 438CrPC. In Amir

Chand v. Crown [Amir Chand v. Crown, 1949 SCC OnLine Punj 20], the

question before the Full Bench was whether Section 498 of the 1898 Code

empowered the High Court or the Court of Session to grant bail to a person who

had not been placed under restraint by arrest or otherwise. The Full Bench

answered the reference as under: (SCC OnLine Punj)

“… The very notion of bail presupposes some form of previous restraint.

Therefore, bail cannot be granted to a person who has not been arrested and

for whose arrest no warrants have been issued. Section 498, Criminal

Procedure Code, does not permit the High Court or the Court of Session to

grant bail to anyone whose case is not covered by Sections 496 and 497,

14 (2025) 1 SCC (Cri) 1 : 2024 SCC OnLine SC 2453 : 2024 INSC 669

Criminal Procedure Code. It follows, therefore, that bail can only be allowed

to a person who has been arrested or detained without warrant or appears or

is brought before a court. Such person must be liable to arrest and must

surrender himself before the question of bail can be considered. In the case of

a person who is not under arrest, but for whose arrest warrants have been

issued, bail can be allowed if he appears in Court and surrenders himself. No

bail can be allowed to a person at liberty for whose arrest no warrants have

been issued. The petitioners in the present case are, therefore, not entitled to

bail. The question referred to the Full Bench is, therefore, answered in the

negative.”

(emphasis supplied)

24. Under the 1898 Code, the concept of anticipatory or pre-arrest bail was

absent and the need for introduction of a new provision in CrPC empowering the

High Court and Court of Session to grant anticipatory bail was pointed out by the

41st Law Commission of India in its Report dated 24-9-1969. It observed thus in

Para 39.9 of the said Report (Vol. I):

“Anticipatory bail

39.9. The suggestion for directing the release of a person on bail prior to his

arrest (commonly known as “anticipatory bail”) was carefully considered by

us. Though there is a conflict of judicial opinion about the power of a court to

grant anticipatory bail, the majority view is that there is no such power under

the existing provisions of the Code. The necessity for granting anticipatory

bail arises mainly because sometimes influential persons try to implicate their

rivals in false causes for the purpose of disgracing them or for other purposes

by getting detained in jail for some days. In recent times, the accentuation of

political rivalry, this tendency is showing signs of steady increase. Apart from

false cases, where 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, there seems no justification to require him first to submit to

custody, remain in prison for some days and then apply for bail.”

We recommend the acceptance of this suggestion. We are further of the view

that this special power should be conferred only on the High Court and the

Court of Session, and that the order should take effect at the time of arrest or

thereafter.

In order to settle the details of this suggestion, the following draft of a new

section is placed for consideration:

‘497-A. (1) When any person has a reasonable apprehension that he would be

arrested on an accusation of having committed a non-bailable offence, he may

apply to the High Court or the Court of Session for a direction under this

section. That Court may, in its discretion, direct that in the event of his arrest,

he shall be released on bail.

(2) A Magistrate taking cognizance of an offence against that person shall,

while taking steps under Section 204(1), either issue summons or a bailable

warrant as indicated in the direction of the court under sub-section (1).

(3) If any person in respect of whom such a direction is made is arrested

without warrant by an officer in charge of a police station on an accusation

of having committed that offence, and is prepared either at the time of arrest

or at any time while in the custody of such officer to give bail, such person

shall be released on bail.’

We considered carefully the question of laying down in the statute certain

conditions under which alone anticipatory bail could be granted. But we found

that it may not be practicable to exhaustively enumerate those conditions; and

moreover, the laying down of such conditions may be construed as prejudging

(partially at any rate) the whole case. Hence we would leave it to the

discretion of the court and prefer not to fetter such discretion in the statutory

provision itself. Superior courts will, undoubtedly, exercise their discretion

properly, and not make any observations in the order granting anticipatory

bail which will have a tendency to prejudice the fair trial of the accused.”

(emphasis supplied)

25. The suggestion made by the Law Commission was, in principle, accepted by

the Central Government which introduced Clause 447 in the Draft Bill of the Code

of Criminal Procedure, 1970 with a view to confer express power on the High

Court and the Court of Session to grant anticipatory bail. The said clause of the

Draft Bill was enacted with certain modifications and became Section 438CrPC.

26. The Law Commission, in Para 31 of its 48th Report (1972), made the

following comments on the aforesaid clause:

“31. Point (vi)— Provision for grant of anticipatory bail.—The Bill [CrPC

Bill, Cl. 447.] introduces a provision for the grant of anticipatory bail. This is

substantially in accordance with the recommendation made by the previous

Commission [ 41st Report, Vol. 1, pp. 320-321, Para 39.9.]. 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.”

(emphasis supplied)

27. Section 438CrPC reads thus:

“438. Discretion for grant of bail to person apprehending arrest.—(1)

Where any person has reason to believe that he may be arrested on accusation

of having committed a non-bailable offence, he may apply to the High Court

or the Court of Session for a direction under this section that in the event of

such arrest he shall be released on bail; and that Court may, after taking into

consideration, inter alia, the following factors, namely—

(i) the nature and gravity of the accusation;

(ii) the antecedents of the applicant including the fact as to whether he

has previously undergone imprisonment on conviction by a court in

respect of any cognizable offence;

(iii) the possibility of the applicant to flee from justice; and

(iv) where the accusation has been made with the object of injuring or

humiliating the applicant by having him so arrested,

either reject the application forthwith or issue an interim order for the grant

of anticipatory bail:

Provided that, where the High Court or, as the case may be, the Court of

Session, has not passed any interim order under this sub-section or has

rejected the application for grant of anticipatory bail, it shall be open to an

officer in charge of a police station to arrest, without warrant the applicant

on the basis of the accusation apprehended in such application.

(1-A) Where the Court grants an interim order under sub-section (1), it shall

forthwith cause a notice being not less than seven days' notice, together with

a copy of such order to be served on the Public Prosecutor and the

Superintendent of Police, with a view to give the Public Prosecutor a

reasonable opportunity of being heard when the application shall be finally

heard by the Court,

(1-B) The presence of the applicant seeking anticipatory bail shall be

obligatory at the time of final hearing of the application and passing of final

order by the Court, if on an application made to it by the Public Prosecutor,

the Court considers such presence necessary in the interest of justice.

(2) When the High Court or the Court of Session makes a direction under subsection (1), it may include such conditions in such directions in the light of the

facts of the particular case, as it may think fit, including—

(i) a condition that the person shall make himself available for

interrogation by a police officer as and when required;

(ii) a condition that the person shall not, directly or indirectly, make

any inducement, threat or promise to any person acquainted with the facts

of the case so as to dissuade him from disclosing such facts to the court or

to any police officer;

(iii) a condition that the person shall not leave India without the

previous permission of the court;

(iv) such other condition as may be imposed under sub-section (3) of

Section 437, as if the bail were granted under that section.

(3) If such person is thereafter arrested without warrant by an officer in

charge of a police station on such accusation, and is prepared either at the

time of arrest or at any time while in the custody of such officer to give bail,

he shall be released on bail; and if a Magistrate taking cognizance of such

offence decides that a warrant should be issued in the first instance against

that person, he shall issue a bailable warrant in conformity with the direction

of the court under sub-section (1).

(4) Nothing in this section shall apply to any case involving the arrest of any

person on accusation of having committed an offence under sub-section (3) of

Section 376 or Section 376-AB or Section 376-DA or Section 376-DB of the

Indian Penal Code (45 of 1860).”

28. The Statement of Objects and Reasons accompanying the Bill for introducing

Section 438 in CrPC indicates that the legislature felt that it was imperative to

evolve a device by which an alleged accused is not compelled to face ignominy

and disgrace at the instance of influential people who try to implicate their rivals

in false cases. The purpose behind incorporating Section 438 in CrPC was to

recognise the importance of personal liberty and freedom in a free and democratic

country. A careful reading of this section reveals that the legislature was keen to

ensure respect for the personal liberty of individuals by pressing in service the

age-old principle that an individual is presumed to be innocent till he is found

guilty by the court. [See: Siddharam Satlingappa Mhetre v. State of

Maharashtra [Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1

SCC 694 : (2011) 1 SCC (Cri) 514] .]

29. In the context of anticipatory bail, this Court, in Siddharam Satlingappa

Mhetre [Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC

694: (2011) 1 SCC (Cri) 514], discussed the relevance and importance of

personal liberty as under: (SCC pp. 718-19 & 721, paras 36-37, 43 & 49-50)

“36. All human beings are born with some unalienable rights like life, liberty

and pursuit of happiness. The importance of these natural rights can be found

in the fact that these are fundamental for their proper existence and no other

right can be enjoyed without the presence of right to life and liberty. Life bereft

of liberty would be without honour and dignity and it would lose all

significance and meaning and the life itself would not be worth living. That is

why “liberty” is called the very quintessence of a civilised existence.

37. Origin of “liberty” can be traced in the ancient Greek civilisation. The

Greeks distinguished between the liberty of the group and the liberty of the

individual. In 431 BC, an Athenian statesman described that the concept of

liberty was the outcome of two notions, firstly, protection of group from attack

and secondly, the ambition of the group to realise itself as fully as possible

through the self-realisation of the individual by way of human reason. Greeks

assigned the duty of protecting their liberties to the State. According to

Aristotle, as the State was a means to fulfil certain fundamental needs of

human nature and was a means for development of individuals' personality in

association of fellow citizens so it was natural and necessary to man. Plato

found his “republic” as the best source for the achievement of the selfrealisation of the people.

***

43. A distinguished former Attorney General for India, M.C. Setalvad in his

treatise War and Civil Liberties observed that the French Convention

stipulates common happiness as the end of the society, whereas Bentham

postulates the greatest happiness of the greatest number as the end of law.

Article 19 of the Indian Constitution averts to freedom and it enumerates

certain rights regarding individual freedom. These rights are vital and most

important freedoms which lie at the very root of liberty. He further observed

that the concept of civil liberty is essentially rooted in the philosophy of

individualism. According to this doctrine, the highest development of the

individual and the enrichment of his personality are the true function and end

of the State. It is only when the individual has reached the highest state of

perfection and evolved what is best in him that society and the State can reach

their goal of perfection. In brief, according to this doctrine, the State exists

mainly, if not solely, for the purpose of affording the individual freedom and

assistance for the attainment of his growth and perfection. The State exists for

the benefit of the individual.

***

49. An eminent English Judge, Lord Alfred Denning observed:

‘By personal freedom I mean freedom of every law abiding citizen to think

what he will, to say what he will, and to go where he will on his lawful

occasion without hindrance from any person…. It must be matched, of course,

with social security by which I mean the peace and good order of the

community in which we live.’

50. An eminent former Judge of this Court, Justice H.R. Khanna in a speech

as published in 2 IJIL, Vol. 18 (1978), p. 133 observed that

‘liberty postulates the creation of a climate wherein there is no suppression of

the human spirits, wherein, there is no denial of the opportunity for the full

growth of human personality, wherein head is held high and there is no

servility of the human mind or enslavement of the human body.’ ”

30. In Kartar Singh [Kartar Singh v. State of Punjab, (1994) 3 SCC 569 : 1994

SCC (Cri) 899 : (1994) 2 SCR 375], a Constitution Bench of this Court held that

there is no constitutional or fundamental right to seek anticipatory bail. In the

said case, this Court was called upon to consider the constitutional validity of

sub-section (7) of Section 20 of the Terrorists and Disruptive Activities

(Prevention) Act, 1987. The Constitution Bench also looked into the validity of

Section 9 of the Code of Criminal Procedure (U.P. Amendment) Act, 1976 which

deleted the operation of Section 438CrPC in the State of Uttar Pradesh with effect

from 28-11-1975. In the aforesaid context, Ratnavel Pandian, J. speaking for

himself and on behalf of four other Judges observed as under : (SCC pp. 698-700,

paras 326-27 & 329)

“326. The High Court of Punjab and Haryana in Bimal Kaur [Bimal Kaur

Khalsa v. Union of India, 1987 SCC OnLine P&H 918 : AIR 1988 P&H 95 :

PLR (1988) 93 P&H 189 : 1988 Cri LJ 869] has examined a similar challenge

as to the vires of Section 20(7) of TADA Act, and held thus : (SCC OnLine

P&H para 108)

‘108. In my opinion Section 20(7) is intra vires the provision of Article 14

of the Constitution in that the persons charged with the commission of

terrorist act fall in a category which is distinct from the class of persons

charged with commission of offences under the Penal Code and the

offences created by other statutes. The persons indulging in terrorist act

form a member of well organised secret movement. The enforcing

agencies find it difficult to lay their hands on them. Unless the police is

able to secure clue as to who are the persons behind this movement, how

it is organised, who are its active members and how they operate, it cannot

hope to put an end to this movement and restore public order. The police

can secure this knowledge only from the arrested terrorists after effective

interrogation. If the real offenders apprehending arrest are able to secure

anticipatory bail then the police shall virtually be denied the said

opportunity.’

327. It is needless to emphasise that both Parliament as well as the State

Legislatures have got legislative competence to enact any law relating to the

Code of Criminal Procedure. No provision relating to anticipatory bail was

in the old Code and it was introduced for the first time in the present Code of

1973 on the suggestion made of the Forty-first Report of the Law Commission

and the Joint Committee Report. It may be noted that this section is completely

omitted in the State of Uttar Pradesh by Section 9 of the Code of Criminal

Procedure (Uttar Pradesh Amendment) Act, 1976 (U.P. Act 16 of 1976) w.e.f.

28-11-1975. In the State of West Bengal, proviso is inserted to Section 438(1)

of the Code w.e.f. 24-12-1988 to the effect that no final order shall be made

on an application filed by the accused praying for anticipatory bail in relation

to an offence punishable with death, imprisonment for life or imprisonment

for a term of not less than seven years, without giving the State not less than

seven days' notice to present its case. In the State of Orissa, by Section 2 of

Orissa Act 11 of 1988 w.e.f. 28-6-1988, a proviso is added to Section 438

stating that no final order shall be made on an application for anticipatory

bail without giving the State notice to present its case for offence punishable

with death, imprisonment for life or imprisonment for a term of not less than

seven years.

***

329. Further, at the risk of repetition, we may add that Section 438 is a new

provision incorporated in the present Code creating a new right. If that new

right is taken away, can it be said that the removal of Section 438 is violative

of Article 21. InGurbaksh Singh [Gurbaksh Singh Sibbia v. State of Punjab,

(1980) 2 SCC 565 : 1980 SCC (Cri) 465 : (1980) 3 SCR 383] , there is no

specific statement that the removal of Section 438 at any time will amount to

violation of Article 21 of the Constitution.”

(emphasis supplied)

31. The aforesaid decision was discussed in the course of the hearing of this case

for the limited proposition that there is no constitutional or fundamental right to

seek anticipatory bail. Section 438CrPC is just a statutory right.

32. In Gurbaksh Singh Sibbia [Gurbaksh Singh Sibbia v. State of Punjab, (1980)

2 SCC 565 : 1980 SCC (Cri) 465 : (1980) 3 SCR 383] , a Constitution Bench of

this Court (speaking through Justice Y.V. Chandrachud, C.J., as his Lordship then

was) undertook an extensive analysis of the provision of anticipatory bail. This

Constitution Bench decision can be termed as a profound and passionate essay

on how personal liberty under the Constitution can be consistent with needs of

investigations and why this Court should avoid any generalisation that would take

away the discretion of the courts dealing with a new set of facts in each case. Y.V.

Chandrachud, C.J. observed thus : (SCC pp. 575 & 579-81, paras 8, 12 & 14-15)

“8. … Attendant upon such investigations, when the police are not free agents

within their sphere of duty, is a great amount of inconvenience, harassment

and humiliation. That can even take the form of the parading of a respectable

person in handcuffs, apparently on way to a court of justice. The foul deed is

done when an adversary is exposed to social ridicule and obloquy, no matter

when and whether a conviction is secured or is at all possible. It is in order to

meet such situations, though not limited to these contingencies, that the power

to grant anticipatory bail was introduced into the 1973 Code.

***

12. … The legislature conferred a wide discretion on the High Court and the

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

it would be difficult to enumerate the conditions under which 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 grant of

relief in the nature of anticipatory bail. That is why, departing from the terms

of Sections 437 and 439, Section 438(1) uses the language that the High Court

or the Court of Session “may, if it thinks fit” direct that the applicant be

released on bail. Sub-section (2) of Section 438 is a further and clearer

manifestation of the same legislative intent to confer a wide discretionary

power to grant anticipatory bail. It provides that the High Court or the Court

of Session, while issuing a direction for the grant of anticipatory bail, “may

include such conditions in such directions in the light of the facts of the

particular case, as it may think fit”, including the conditions which are set out

in clauses (i) to (iv) of sub-section (2). …

***

14. Generalisations 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. …

15. … While laying down cast-iron rules in a matter like granting anticipatory

bail, as the High Court has done, it is apt to be overlooked that even Judges

can have but an imperfect awareness of the needs of new situations. Life is

never static and every situation has to be assessed in the context of emerging

concerns as and when it arises.”

17. In light of the foregoing discussion and the precedents cited, certain clear

principles emerge. Applications concerning personal liberty cannot be kept

pending for years while the applicants remain under a cloud of uncertainty. The

consistent line of authority of this Court makes it abundantly clear that bail and

anticipatory applications must be decided expeditiously on their own merits,

without relegating the parties to a state of indefinite pendency. Prolonged delay

in disposal not only frustrates the object of Code of Criminal Procedure, but also

amounts to a denial of justice, contrary to the constitutional ethos reflected in

Articles 14 and 21.

18. We accordingly issue the following directions:

a) High Courts shall ensure that applications for bail and anticipatory bail

pending before them or before the subordinate courts under their

jurisdiction are disposed of expeditiously, preferably within a period of two

months from the date of filing, except in cases where delay is attributable

to the parties themselves.

b) High Courts shall issue necessary administrative directions to subordinate

courts to prioritise matters involving personal liberty and to avoid

indefinite adjournments.

c) Investigating agencies are expected to conclude investigations in longpending cases with promptitude so that neither the complainant nor the

accused suffers prejudice on account of undue delay.

d) Being the highest constitutional fora in the States, High Courts must devise

suitable mechanisms and procedures to avoid accumulation of pending bail

/ anticipatory bail applications and ensure that the liberty of citizens is not

left in abeyance. In particular, bail and anticipatory bail applications shall

not be kept pending for long durations without passing orders either way,

as such pendency directly impinges upon the fundamental right to liberty.

18.1. The Registrar (Judicial) of this Court shall circulate a copy of this judgment

to all High Courts for immediate compliance and prompt administrative action.

19. In fine, both appeals fail, and the impugned judgment of the High Court

rejecting the anticipatory bail applications is affirmed. However, we clarify that

the appellants shall be at liberty to apply for regular bail before the competent

court, and if such an application is made, it shall be considered on its own merits,

uninfluenced by any observations made by the High Court or by this Court in

these appeals.

20. With the aforesaid directions and observations, the Criminal Appeals are

dismissed.

21. Connected Miscellaneous Application(s), if any, stand disposed of.

…………………………J.

[J.B. PARDIWALA]

…………………………J.

[R. MAHADEVAN]

NEW DELHI;

SEPTEMBER 12, 2025

LAW FOR ALL

LawforAll

advocatemmmohan

Just for legal information but not form as legal opinion

Saturday, September 20, 2025

For a valid prosecution under Section 138 NI Act, the demand notice must specifically and correctly mention the cheque amount. Any discrepancy, even a typographical error, is fatal.

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Friday, September 19, 2025

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