REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2271 2010.
(Arising out of SLP (Crl.) No.7615 of 2009)
Siddharam Satlingappa Mhetre .....Appellant
Versus
State of Maharashtra and Others .....Respondents
JUDGMENT
Dalveer Bhandari, J.
1. Leave granted.
2. This appeal involves issues of great public importance
pertaining to the importance of individual's personal liberty and
the society's interest.
3. The society has a vital interest in grant or refusal of bail
because every criminal offence is the offence against the State.
The order granting or refusing bail must reflect perfect balance
between the conflicting interests, namely, sanctity of individual
liberty and the interest of the society. The law of bails dovetails
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two conflicting interests namely, on the one hand, the
requirements of shielding the society from the hazards of those
committing crimes and potentiality of repeating the same crime
while on bail and on the other hand absolute adherence of the
fundamental principle of criminal jurisprudence regarding
presumption of innocence of an accused until he is found guilty
and the sanctity of individual liberty.
4. Brief facts which are necessary to dispose of this appeal are
recapitulated as under:
The appellant, who belongs to the Indian National Congress
party (for short `Congress party') is the alleged accused in this
case. The case of the prosecution, as disclosed in the First
Information Report (for short `FIR'), is that Sidramappa Patil was
contesting election of the State assembly on behalf of the
Bhartiya Janata Party (for short `BJP'). In the FIR, it is
incorporated that Baburao Patil, Prakash Patil, Mahadev Patil,
Mallikarjun Patil, Apparao Patil, Yeshwant Patil were supporters
of the Congress and so also the supporters of the appellant
Siddharam Mhetre and opposed to the BJP candidate.
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5. On 26.9.2009, around 6.00 p.m. in the evening,
Sidramappa Patil of BJP came to the village to meet his party
workers. At that juncture, Shrimant Ishwarappa Kore,
Bhimashankar Ishwarappa Kore, Kallapa Gaddi, Sangappa
Gaddi, Gafur Patil, Layappa Gaddi, Mahadev Kore, Suresh
Gaddi, Suresh Zhalaki, Ankalgi, Sarpanch of village Shivmurti
Vijapure met Sidramappa Patil and thereafter went to worship
and pray at Layavva Devi's temple. After worshipping the
Goddess when they came out to the assembly hall of the temple,
these aforementioned political opponents namely, Baburao Patil,
Prakash Patil, Gurunath Patil, Shrishail Patil, Mahadev Patil,
Mallikarjun Patil, Annarao @ Pintu Patil, Hanumant Patil,
Tammarao Bassappa Patil, Apparao Patil, Mallaya Swami,
Sidhappa Patil, Shankar Mhetre, Usman Sheikh, Jagdev Patil,
Omsiddha Pujari, Panchappa Patil, Mahesh Hattargi, Siddhappa
Birajdar, Santosh Arwat, Sangayya Swami, Anandappa Birajdar,
Sharanappa Birajdar, Shailesh Chougule, Ravi Patil, Amrutling
Koshti, Ramesh Patil and Chandrakant Hattargi suddenly came
rushing in their direction and loudly shouted, "why have you
come to our village? Have you come here to oppose our Mhetre
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Saheb? They asked them to go away and shouted Mhetre Saheb
Ki Jai."
6. Baburao Patil and Prakash Patil from the aforementioned
group fired from their pistols in order to kill Sidramappa Patil
and the other workers of the BJP. Bhima Shankar Kore was hit
by the bullet on his head and died on the spot. Sangappa Gaddi,
Shivmurti Vjapure, Jagdev Patil, Layappa Patil, Tammaro Patil
were also assaulted. It is further mentioned in the FIR that
about eight days ago, the appellant Siddharam Mhetre and his
brother Shankar Mhetre had gone to the village and talked to the
abovementioned party workers and told them that, "if anybody
says anything to you, then you tell me. I will send my men within
five minutes. You beat anybody. Do whatever."
7. According to the prosecution, the appellant along with his
brother instigated their party workers which led to killing of
Bhima Shanker Kora. It may be relevant to mention that the
alleged incident took place after eight days of the alleged incident
of instigation.
8. The law relating to bail is contained in sections 436 to 450
of chapter XXXIII of the Code of Criminal Procedure, 1973.
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Section 436 deals with situation, in what kind of cases bail
should be granted. Section 436 deals with the situation when
bail may be granted in case of a bailable offence. Section 439
deals with the special powers of the High Court or the Court of
Sessions regarding grant of bail. Under sections 437 and 439
bail is granted when the accused or the detenu is in jail or under
detention.
9. The provision of anticipatory bail was introduced for the
first time in the Code of Criminal Procedure in 1973.
10. Section 438 of the Code of Criminal Procedure, 1973 reads
as under:
"438. Direction 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
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(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 sub- section (1), it may
include such conditions in such directions in the light
of the facts of the particular case, as it may thinks fit,
including -
(i) a condition that the person shall make
himself available for interrogation by a
police officer as and when required;
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(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 issue 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)."
Why was the provision of anticipatory bail introduced? -
Historical perspective
11. The Code of Criminal Procedure, 1898 did not contain any
specific provision of anticipatory bail. Under the old Code, there
was a sharp difference of opinion amongst the various High
Courts on the question as to whether the courts had an inherent
power to pass an order of bail in anticipation of arrest, the
preponderance of view being that it did not have such power.
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12. The Law Commission of India, in its 41st Report dated
September 24, 1969 pointed out the necessity of introducing a
provision in the Code of Criminal Procedure enabling the High
Court and the Court of Sessions to grant "anticipatory bail". It
observed in para 39.9 of its report (Volume I) and the same is set
out as under:
"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 cases for the purpose of disgracing them
or for other purposes by getting them detained in jail
for some days. In recent times, with 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."
The Law commission recommended acceptance of the
suggestion.
13. The Law Commission in para 31 of its 48th Report (July,
1972) made the following comments on the aforesaid clause:
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"The Bill introduces a provision for the grant of
anticipatory bail. This is substantially in accordance
with the recommendation made by the previous
Commission. We agree that this would be a useful
addition, though we must add that it is in very
exceptional cases that such a power should be
exercised.
We are further of the view that in order to ensure
that the provision is not put to abuse at the instance
of unscrupulous petitioners, the final order should be
made only after notice to the Public Prosecutor. The
initial order should only be an interim one. Further,
the relevant section should make it clear that the
direction can be issued only for reasons to be
recorded, and if the court is satisfied that such a
direction is necessary in the interests of justice.
It will also be convenient to provide that notice of
the interim order as well as of the final orders will be
given to the Superintendent of Police forthwith."
14. Police custody is an inevitable concomitant of arrest for
non-bailable offences. The concept of anticipatory bail is that a
person who apprehends his arrest in a non-bailable case can
apply for grant of bail to the Court of Sessions or to the High
Court before the arrest.
Scope and ambit of Section 438 Cr.P.C.
15. It is apparent from the Statement of Objects and Reasons
for introducing section 438 in the Code of Criminal Procedure,
1973 that it was felt imperative to evolve a device by which an
alleged accused is not compelled to face ignominy and disgrace
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at the instance of influential people who try to implicate their
rivals in false cases.
16. The Code of Criminal Procedure, 1898 did not contain any
specific provision corresponding to the present section 438
Cr.P.C. The only two clear provisions of law by which bail could
be granted were sections 437 and 439 of the Code. Section 438
was incorporated in the Code of Criminal Procedure, 1973 for the
first time.
17. It is clear from the Statement of Objects and Reasons that
the purpose of incorporating Section 438 in the Cr.P.C. was to
recognize the importance of personal liberty and freedom in a
free and democratic country. When we carefully analyze this
section, the wisdom of the legislature becomes quite evident and
clear that the legislature was keen to ensure respect for the
personal liberty and also pressed in service the age-old principle
that an individual is presumed to be innocent till he is found
guilty by the court.
18. The High Court in the impugned judgment has declined to
grant anticipatory bail to the appellant and aggrieved by the said
11
order, the appellant has approached this Court by filing this
appeal.
19. Mr. Shanti Bhushan, learned senior counsel appearing for
the appellant submitted that the High Court has gravely erred in
declining the anticipatory bail to the appellant. He submitted
that section 438 Cr.P.C. was incorporated because sometime
influential people try to implicate their rivals in false cases for
the purpose of disgracing them or for other purposes by getting
them detained in jail for some days. He pointed out that in
recent times, with the accentuation of political rivalry, this
tendency is showing signs of steady increase.
20. Mr. Bhushan submitted that the appellant has been
implicated in a false case and apart from that he has already
joined the investigation and he is not likely to abscond, or
otherwise misuse the liberty while on bail, therefore, there was
no justification to decline anticipatory bail to the appellant.
21. Mr. Bhushan also submitted that the FIR in this case refers
to an incident which had taken place on the instigation of the
appellant about eight days ago. According to him, proper
analysis of the averments in the FIR leads to irresistible
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conclusion that the entire prosecution story seems to be a cock
and bull story and no reliance can be placed on such a
concocted version.
22. Mr. Bhushan contended that the personal liberty is the
most important fundamental right guaranteed by the
Constitution. He also submitted that it is the fundamental
principle of criminal jurisprudence that every individual is
presumed to be innocent till he or she is found guilty. He further
submitted that on proper analysis of section 438 Cr.P.C. the
legislative wisdom becomes quite evident that the legislature
wanted to preserve and protect personal liberty and give impetus
to the age-old principle that every person is presumed to be
innocent till he is found guilty by the court.
23. Mr. Bhushan also submitted that an order of anticipatory
bail does not in any way, directly or indirectly, take away from
the police their power and right to fully investigate into charges
made against the appellant. He further submitted that when the
case is under investigation, the usual anxiety of the investigating
agency is to ensure that the alleged accused should fully
cooperate with them and should be available as and when they
require him. In the instant case, when the appellant has already
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joined the investigation and is fully cooperating with the
investigating agency then it is difficult to comprehend why the
respondent is insistent for custodial interrogation of the
appellant? According to the appellant, in the instant case, the
investigating agency should not have a slightest doubt that the
appellant would not be available to the investigating agency for
further investigation particularly when he has already joined
investigation and is fully cooperating with the investigating
agency.
24. Mr. Bhushan also submitted that according to the General
Clauses Act, 1897 the court which grants the bail also has the
power to cancel it. The grant of bail is an interim order. The
court can always review its decision according to the subsequent
facts, circumstances and new material. Mr. Bhushan also
submitted that the exercise of grant, refusal and cancellation of
bail can be undertaken by the court either at the instance of the
accused or a public prosecutor or a complainant on finding fresh
material and new circumstances at any point of time. Even the
appellant's reluctance in not fully cooperating with the
investigation could be a ground for cancellation of bail.
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25. Mr. Bhushan submitted that a plain reading of the section
438 Cr.P.C. clearly reveals that the legislature has not placed any
fetters on the court. In other words, the legislature has not
circumscribed court's discretion in any manner while granting
anticipatory bail, therefore, the court should not limit the order
only for a specified period till the charge-sheet is filed and
thereafter compel the accused to surrender and ask for regular
bail under section 439 Cr.P.C., meaning thereby the legislature
has not envisaged that the life of the anticipatory bail would only
last till the charge-sheet is filed. Mr. Bhushan submitted that
when no embargo has been placed by the legislature then this
court in some of its orders was not justified in placing this
embargo.
26. Mr. Bhushan submitted that the discretion which has been
granted by the legislature cannot and should not be curtailed by
interpreting the provisions contrary to the legislative intention.
The courts' discretion in grant or refusal of the anticipatory bail
cannot be diluted by interpreting the provisions against the
legislative intention. He submitted that the life is never static
and every situation has to be assessed and evaluated in the
context of emerging concerns as and when it arises. It is
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difficult to visualize or anticipate all kinds of problems and
situations which may arise in future.
Law has been settled by an authoritative pronouncement of
the Supreme Court
27. The Constitution Bench of this Court in Gurbaksh Singh
Sibbia and Others v. State of Punjab (1980) 2 SCC 565 had an
occasion to comprehensively deal with the scope and ambit of
the concept of anticipatory bail. Section 438 Cr.P.C. is an
extraordinary provision where the accused who apprehends
his/her arrest on accusation of having committed a non-bailable
offence can be granted bail in anticipation of arrest. The
Constitution Bench's relevant observations are set out as under:
"........A wise exercise of judicial power inevitably takes
care of the evil consequences which are likely to flow
out of its intemperate use. Every kind of judicial
discretion, whatever may be the nature of the matter
in regard to which it is required to be exercised, has to
be used with due care and caution. In fact, an
awareness of the context in which the discretion is
required to be exercised and of the reasonably
foreseeable consequences of its use, is the hall mark
of a prudent exercise of judicial discretion. One ought
not to make a bugbear of the power to grant
anticipatory bail".
28. Mr. Bhushan referred to a Constitution Bench judgment in
Sibbia's case (supra) to strengthen his argument that no such
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embargo has been placed by the said judgment of the
Constitution Bench. He placed heavy reliance on para 15 of
Sibbia's case (supra), which reads as under:
"15. Judges have to decide cases as they come before
them, mindful of the need to keep passions and
prejudices out of their decisions. And it will be strange
if, by employing judicial artifices and techniques, we
cut down the discretion so wisely conferred upon the
courts, by devising a formula which will confine the
power to grant anticipatory bail within a strait-jacket.
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. Therefore, even if we were to frame
a `Code for the grant of anticipatory bail', which really
is the business of the legislature, it can at best furnish
broad guide-lines and cannot compel blind adherence.
In which case to grant bail and in which to refuse it is,
in the very nature of things, a matter of discretion.
But apart from the fact that the question is inherently
of a kind which calls for the use of discretion from
case to case, the legislature has, in terms express,
relegated the decision of that question to the
discretion of the court, by providing that it may grant
bail "if it thinks fit". The concern of the courts
generally is to preserve their discretion without
meaning to abuse it. It will be strange if we exhibit
concern to stultify the discretion conferred upon the
courts by law."
29. Mr. Bhushan submitted that the Constitution Bench in
Sibbia's case (supra) also mentioned that "we see no valid
reason for rewriting Section 438 with a view, not to expanding
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the scope and ambit of the discretion conferred on the High
Court and the Court of Session but, for the purpose of limiting it.
Accordingly, we are unable to endorse the view of the High Court
that anticipatory bail cannot be granted in respect of offences
like criminal breach of trust for the mere reason that the
punishment provided therefor is imprisonment for life.
Circumstances may broadly justify the grant of bail in such
cases too, though of course, the court is free to refuse
anticipatory bail in any case if there is material before it
justifying such refusal".
30. Mr. Bhushan submitted that the court's orders in some
cases that anticipatory bail is granted till the charge-sheet is
filed and thereafter the accused has to surrender and seek bail
application under section 439 Cr.P.C. is neither envisaged by the
provisions of the Act nor is in consonance with the law declared
by a Constitution Bench in Sibbia's case (supra) nor it is in
conformity with the fundamental principles of criminal
jurisprudence that accused is considered to be innocent till he is
found guilty nor in consonance with the provisions of the
Constitution where individual's liberty in a democratic society is
considered sacrosanct.
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31. Mr. Mahesh Jethmalani, learned senior counsel appearing
for respondent no. 2, submitted that looking to the facts and
circumstances of this case, the High Court was justified in
declining the anticipatory bail to the appellant. He submitted
that the anticipatory bail ought to be granted in rarest of rare
cases where the nature of offence is not very serious. He placed
reliance on the case of Pokar Ram v. State of Rajasthan and
Others (1985) 2 SCC 597 and submitted that in murder cases
custodial interrogation is of paramount importance particularly
when no eye witness account is available.
32. Mr. Jethmalani fairly submitted that the practice of passing
orders of anticipatory bail operative for a few days and directing
the accused to surrender before the Magistrate and apply for
regular bail are contrary to the law laid down in Sibbia's case
(supra). The decisions of this Court in Salauddin Abdulsamad
Shaikh v. State of Maharashtra (1996) 1 SCC 667, K. L.
Verma v. State and Another (1998) 9 SCC 348, Adri Dharan
Das v. State of West Bengal (2005) 4 SCC 303 and Sunita
Devi v. State of Bihar and Another (2005) 1 SCC 608 are in
conflict with the above decision of the Constitution Bench in
Sibbia's case (supra). He submitted that all these orders which
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are contrary to the clear legislative intention of law laid down in
Sibbia's case (supra) are per incuriam. He also submitted that
in case the conflict between the two views is irreconcilable, the
court is bound to follow the judgment of the Constitution Bench
over the subsequent decisions of Benches of lesser strength.
33. He placed reliance on N. Meera Rani v. Government of
Tamil Nadu and Another (1989) 4 SCC 418 wherein it was
perceived that there was a clear conflict between the judgment of
the Constitution Bench and subsequent decisions of Benches of
lesser strength. The Court ruled that the dictum in the
judgment of the Constitution Bench has to be preferred over the
subsequent decisions of the Bench of lesser strength. The Court
observed thus:
".......All subsequent decisions which are cited have to
be read in the light of the Constitution Bench decision
since they are decisions by Benches comprising of
lesser number of judges. It is obvious that none of
these subsequent decisions could have intended
taking a view contrary to that of the Constitution
bench in Rameshwar Shaw's case (1964) 4 SCR 921"
34. He placed reliance on another judgment of this Court in
Vijayalaxmi Cashew Company and Others v. Dy.
20
Commercial Tax Officer and Another (1996) 1 SCC 468. This
Court held as under:
"........It is not possible to uphold the contention that
perception of the Supreme Court, as will appear from
the later judgments, has changed in this regard. A
judgment of a Five Judge Bench, which has not been
doubted by any later judgment of the Supreme Court
cannot be treated as overruled by implication."
35. He also placed reliance on Union of India and Others v.
K. S. Subramanian (1976) 3 SCC 677 and State of U.P. v.
Ram Chandra Trivedi (1976) 4 SCC 52 and submitted that in
case of conflict, the High Court has to prefer the decision of a
larger Bench to that of a smaller Bench.
36. Mr. Jethmalani submitted that not only the decision in
Sibbia's case (supra) must be followed on account of the larger
strength of the Bench that delivered it but the subsequent
decisions must be held to be per incuriam and hence not binding
since they have not taken into account the ratio of the judgment
of the Constitution Bench.
37. He further submitted that as per the doctrine of `per
incuriam', any judgment which has been passed in ignorance of
or without considering a statutory provision or a binding
precedent is not good law and the same ought to be ignored. A
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perusal of the judgments in Salauddin Abdulsamad Shaikh v.
State of Maharashtra, K. L. Verma v. State and Another,
Adri Dharan Das v. State of West Bengal and Sunita Devi v.
State of Bihar and Another (supra) indicates that none of
these judgments have considered para 42 of Sibbia's case
(supra) in proper perspective. According to Mr. Jethmalani, all
subsequent decisions which have been cited above have to be
read in the light of the Constitution Bench's decision in Sibbia's
case (supra) since they are decisions of Benches comprised of
lesser number of judges. According to him, none of these
subsequent decisions could be intended taking a view contrary to
that of the Constitution Bench in Sibbia's case (supra).
38. Thus, the law laid down in para 42 by the Constitution
Bench that the normal rule is not to limit operation of the order
of anticipatory bail, was not taken into account by the courts
passing the subsequent judgments. The observations made by
the courts in the subsequent judgments have been made in
ignorance of and without considering the law laid down in para
42 which was binding on them. In these circumstances, the
observations made in the subsequent judgments to the effect
that anticipatory bail should be for a limited period of time, must
22
be construed to be per incuriam and the decision of the
Constitution Bench preferred.
39. He further submitted that the said issue came up for
consideration before the Madras High Court reported in
Palanikumar and Another v. State 2007 (4) CTC 1 wherein
after discussing all the judgments of this court on the issue, the
court held that the subsequent judgments were in conflict with
the decision of the Constitution Bench in Sibbia's case (supra)
and in accordance with the law of precedents, the judgment of
the Constitution Bench is biding on all courts and the ratio of
that judgment has to be applicable for all judgments decided by
the Benches of same or smaller combinations. In the said
judgment of Sibbia's case (supra) it was directed that the
anticipatory bail should not be limited in period of time.
40. We have heard the learned counsel for the parties at great
length and perused the written submissions filed by the learned
counsel for the parties.
Relevance and importance of personal liberty
41. All human beings are born with some unalienable rights
like life, liberty and pursuit of happiness. The importance of
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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.
42. 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 civilized existence.
43. Origin of "liberty"' can be traced in the ancient Greek
civilization. The Greeks distinguished between the liberty of the
group and the liberty of the individual. In 431 B.C., 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 realize itself as fully as
possible through the self-realization 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 self-realization of the people.
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44. Chambers' Twentieth Century Dictionary defines "liberty"
as "Freedom to do as one pleases, the unrestrained employment
of natural rights, power of free chance, privileges, exemption,
relaxation of restraint, the bounds within which certain
privileges are enjoyed, freedom of speech and action beyond
ordinary civility".
45. It is very difficult to define the "liberty". It has many facets
and meanings. The philosophers and moralists have praised
freedom and liberty but this term is difficult to define because it
does not resist any interpretation. The term "liberty" may be
defined as the affirmation by an individual or group of his or its
own essence. It needs the presence of three factors, firstly,
harmonious balance of personality, secondly, the absence of
restraint upon the exercise of that affirmation and thirdly,
organization of opportunities for the exercise of a continuous
initiative.
46. "Liberty" may be defined as a power of acting according to
the determinations of the will. According to Harold Laski, liberty
was essentially an absence of restraints and John Stuard Mill
25
viewed that "all restraint", qua restraint is an evil". In the words
of Jonathon Edwards, the meaning of "liberty" and freedom is:
"Power, opportunity or advantage that any one has to
do as he pleases, or, in other words, his being free
from hindrance or impediment in the way of doing, or
conducting in any respect, as he wills."
47. It can be found that "liberty" generally means the
prevention of restraints and providing such opportunities, the
denial of which would result in frustration and ultimately
disorder. Restraints on man's liberty are laid down by power
used through absolute discretion, which when used in this
manner brings an end to "liberty" and freedom is lost. At the
same time "liberty" without restraints would mean liberty won by
one and lost by another. So "liberty" means doing of anything
one desires but subject to the desire of others.
48. As John E.E.D. in his monograph Action on "Essays on
Freedom and Power" wrote that Liberty is one of the most
essential requirements of the modern man. It is said to be the
delicate fruit of a mature civilization.
49. A distinguished former Attorney General for India, M.C.
Setalvad in his treatise "War and Civil Liberties" observed that
26
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.
50. 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.
51. Mr. Setalvad in the same treatise further observed that it is
also true that the individual cannot attain the highest in him
27
unless he is in possession of certain essential liberties which
leave him free as it were to breathe and expand. According to
Justice Holmes, these liberties are the indispensable conditions
of a free society. The justification of the existence of such a state
can only be the advancement of the interests of the individuals
who compose it and who are its members. Therefore, in a
properly constituted democratic state, there cannot be a conflict
between the interests of the citizens and those of the state. The
harmony, if not the identity, of the interests of the state and the
individual, is the fundamental basis of the modern Democratic
National State. And, yet the existence of the state and all
government and even all law must mean in a measure the
curtailment of the liberty of the individual. But such a surrender
and curtailment of his liberty is essential in the interests of the
citizens of the State. The individuals composing the state must,
in their own interests and in order that they may be assured the
existence of conditions in which they can, with a reasonable
amount of freedom, carry on their other activities, endow those
in authority over them to make laws and regulations and adopt
measures which impose certain restrictions on the activities of
the individuals.
28
52. Harold J. Laski in his monumental work in "Liberty in the
Modern State" observed that liberty always demands a limitation
on political authority. Power as such when uncontrolled is
always the natural enemy of freedom.
53. Roscoe Pound, an eminent and one of the greatest
American Law Professors aptly observed in his book "The
Development of Constitutional Guarantee of Liberty" that
whatever, `liberty' may mean today, the liberty is guaranteed by
our bills of rights, "is a reservation to the individual of certain
fundamental reasonable expectations involved in life in civilized
society and a freedom from arbitrary and unreasonable exercise
of the power and authority of those who are designated or chosen
in a politically organized society to adjust that society to
individuals."
54. Blackstone in "Commentaries on the Laws of England",
Vol.I, p.134 aptly observed that "Personal liberty consists in the
power of locomotion, of changing situation or moving one's
person to whatsoever place one's own inclination may direct,
without imprisonment or restraint unless by due process of law".
29
55. According to Dicey, a distinguished English author of the
Constitutional Law in his treatise on Constitutional Law
observed that, "Personal liberty, as understood in England,
means in substance a person's right not to be subjected to
imprisonment, arrest, or other physical coercion in any manner
that does not admit of legal justification." [Dicey on
Constitutional Law, 9th Edn., pp.207-08]. According to him, it is
the negative right of not being subjected to any form of physical
restraint or coercion that constitutes the essence of personal
liberty and not mere freedom to move to any part of the Indian
territory. In ordinary language personal liberty means liberty
relating to or concerning the person or body of the individual,
and personal liberty in this sense is the antithesis of physical
restraint or coercion.
56. 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."
30
57. 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".
Right to life and personal liberty under the Constitution
58. We deem it appropriate to deal with the concept of personal
liberty under the Indian and other Constitutions.
59. The Fundamental Rights represent the basic values
enriched by the people of this country. The aim behind having
elementary right of the individual such as the Right to Life and
Liberty is not fulfilled as desired by the framers of the
Constitution. It is to preserve and protect certain basic human
rights against interference by the state. The inclusion of a
Chapter in Constitution is in accordance with the trends of
modern democratic thought. The object is to ensure the
inviolability of certain essential rights against political
vicissitudes.
31
60. The framers of the Indian Constitution followed the
American model in adopting and incorporating the Fundamental
Rights for the people of India. American Constitution provides
that no person shall be deprived of his life, liberty, or property
without due process of law. The due process clause not only
protects the property but also life and liberty, similarly Article 21
of the Indian Constitution asserts the importance of life and
liberty. The said Article reads as under:-
"no person shall be deprived for his life or personal
liberty except according to procedure established by
law"
the right secured by Article 21 is available to every citizen or
non-citizen, according to this article, two rights are secured.
1. Right to life
2 Right to personal liberty.
61. Life and personal liberty are the most prized possessions of
an individual. The inner urge for freedom is a natural
phenomenon of every human being. Respect for life, liberty and
property is not merely a norm or a policy of the State but an
essential requirement of any civilized society.
62. This court defined the term "personal liberty" immediately
after the Constitution came in force in India in the case of A. K.
32
Gopalan v. The State of Madras, AIR 1950 SC 27. The
expression `personal liberty' has wider as well narrow meaning.
In the wider sense it includes not only immunity from arrest and
detention but also freedom of speech, association etc. In the
narrow sense, it means immunity from arrest and detention.
The juristic conception of `personal liberty', when used the latter
sense, is that it consists freedom of movement and locomotion.
63. Mukherjea, J. in the said judgment observed that `Personal
Liberty' means liberty relating to or concerning the person or
body of the individual and it is, in this sense, antithesis of
physical restraint or coercion. `Personal Liberty' means a
personal right not to be subjected to imprisonment, arrest or
other physical coercion in any manner that does not admit of
legal justification. This negative right constitutes the essence of
personal liberty. Patanjali Shastri, J. however, said that whatever
may be the generally accepted connotation of the expression
`personal liberty', it was used in Article 21 in a sense which
excludes the freedom dealt with in Article 19. Thus, the Court
gave a narrow interpretation to `personal liberty'. This court
excluded certain varieties of rights, as separately mentioned in
33
Article 19, from the purview of `personal liberty' guaranteed by
Art. 21.
64. In Kharak Singh v. State of U.P. and Others AIR 1963
SC 1295, Subba Rao, J. defined `personal liberty, as a right of an
individual to be free from restrictions or encroachment on his
person whether these are directly imposed or indirectly brought
about by calculated measure. The court held that `personal
liberty' in Article 21 includes all varieties of freedoms except
those included in Article 19.
65. In Maneka Gandhi v. Union of India and Another (1978)
1 SCC 248, this court expanded the scope of the expression
`personal liberty' as used in Article 21 of the Constitution of
India. The court rejected the argument that the expression
`personal liberty' must be so interpreted as to avoid overlapping
between Article 21 and Article 19(1). It was observed: "The
expression `personal liberty' in Article 21 is of the widest
amplitude and it covers a variety of rights which go to constitute
the personal liberty of a man and some of them have been raised
to the status of distinct fundamental rights and given additional
protection under Article 19." So, the phrase `personal liberty' is
34
very wide and includes all possible rights which go to constitute
personal liberty, including those which are mentioned in Article
19.
66. Right to life is one of the basic human right and not even
the State has the authority to violate that right. [State of A.P. v.
Challa Ramakrishna Reddy and Others (2000) 5 SCC 712].
67. Article 21 is a declaration of deep faith and belief in human
rights. In this pattern of guarantee woven in Chapter III of this
Constitution, personal liberty of man is at root of Article 21 and
each expression used in this Article enhances human dignity
and values. It lays foundation for a society where rule of law has
primary and not arbitrary or capricious exercise of power.
[Kartar Singh v. State of Punjab and Others (1994) 3 SCC
569].
68. While examining the ambit, scope and content of the
expression "personal liberty" in the said case, it was held that
the term is used in this Article as a compendious term to include
within itself all varieties of rights which goes to make up the
"personal liberties" or man other than those dealt within several
clauses of Article 19(1). While Article 19(1) deals with particular
35
species or attributes of that freedom, "personal liberty" in Article
21 takes on and comprises the residue.
69. The early approach to Article 21 which guarantees right to
life and personal liberty was circumscribed by literal
interpretation in A.K. Gopalan (supra). But in course of time,
the scope of this application of the Article against arbitrary
encroachment by the executives has been expanded by liberal
interpretation of the components of the Article in tune with the
relevant international understanding. Thus protection against
arbitrary privation of "life" no longer means mere protection of
death, or physical injury, but also an invasion of the right to
"live" with human dignity and would include all these aspects of
life which would go to make a man's life meaningful and worth
living, such as his tradition, culture and heritage. [Francis
Coralie Mullin v. Administrator, Union Territory of Delhi
and Others (1981) 1 SCC 608]
70. Article 21 has received very liberal interpretation by this
court. It was held: "The right to live with human dignity and
same does not connote continued drudging. It takes within its
fold some process of civilization which makes life worth living
36
and expanded concept of life would mean the tradition, culture,
and heritage of the person concerned." [P.
Rathinam/Nagbhusan Patnaik v. Union of India and
Another (1994) 3 SCC 394.]
71. The object of Article 21 is to prevent encroachment upon
personal liberty in any manner. Article 21 is repository of all
human rights essentially for a person or a citizen. A fruitful and
meaningful life presupposes full of dignity, honour, health and
welfare. In the modern "Welfare Philosophy", it is for the State to
ensure these essentials of life to all its citizens, and if possible to
non-citizens. While invoking the provisions of Article 21, and by
referring to the oft-quoted statement of Joseph Addision, "Better
to die ten thousand deaths than wound my honour", the Apex
court in Khedat Mazdoor Chetana Sangath v. State of M.P.
and Others (1994) 6 SCC 260 posed to itself a question "If
dignity or honour vanishes what remains of life"? This is the
significance of the Right to Life and Personal Liberty guaranteed
under the Constitution of India in its third part.
72. This court in Central Inland Water Transport
Corporation Ltd. and Another v. Brojo Nath Ganguly and
37
Another (1986) 3 SCC 156 observed that the law must respond
and be responsive to the felt and discernible compulsions of
circumstances that would be equitable, fair and justice, and
unless there is anything to the contrary in the statute, Court
must take cognizance of that fact and act accordingly.
73. This court remarked that an undertrial prisoner should not
be put in fetters while he is being taken from prison to Court or
back to prison from Court. Steps other than putting him in
fetters will have to be taken to prevent his escape.
74. In Prem Shankar Shukla v. Delhi Administration (1980)
3 SCC 526, this court has made following observations:
"....... The Punjab Police Manual, in so far as it puts
the ordinary Indian beneath the better class breed
(para 26.21A and 26.22 of Chapter XXVI) is
untenable and arbitrary. Indian humans shall not
be dichotomised and the common run discriminated
against regarding handcuffs. The provisions in para
26.22 that every under-trial who is accused of a
non-bailable offence punishable with more than 3
years prison term shall be routinely handcuffed is
violative of Articles 14, 19 and 21. The nature of the
accusation is not the criterion. The clear and
present danger of escape breaking out of the police
control is the determinant. And for this there must
be clear material, not glib assumption, record of
reasons and judicial oversight and summary
hearing and direction by the court where the victim
is produced. ... Handcuffs are not summary
punishment vicariously imposed at police level, at
38
once obnoxious and irreversible. Armed escorts,
worth the salt, can overpower any unarmed under-
trial and extra guards can make up exceptional
needs. In very special situations, the application of
irons is not ruled out. The same reasoning applies
to (e) and (f). Why torture the prisoner because
others will demonstrate or attempt his rescue? The
plain law of under-trial custody is thus contrary to
the unedifying escort practice. (Para 31)
Even in cases where, in extreme circumstances,
handcuffs have to be put on the prisoner, the
escorting authority must record contemporaneously
the reason for doing so. Otherwise, under Article 21
the procedure will be unfair and bad in law. The
minions of the police establishment must make
good their security recipes by getting judicial
approval. And, once the court directs that handcuffs
shall be off, no escorting authority can overrule
judicial direction. This is implicit in Article 21 which
insists upon fairness, reasonableness and justice in
the very procedure which authorities stringent
deprivation of life and liberty. (Para 30)
It is implicit in Articles 14 and 19 that when there is
no compulsive need to fetter a person's limbs, it is
sadistic, capricious, despotic and demoralizing to
humble a man by manacling him. Such arbitrary
conduct surely slaps Article 14 on the face. The
minimal freedom of movement which even a
detainee is entitled to under Article 19 cannot be
cut down cruelly by application of handcuffs or
other hoops. It will be unreasonable so to do unless
the State is able to make out that no other practical
way of forbidding escape is available, the prisoner
being so dangerous and desperate and the
circumstances so hostile to safekeeping. (Para 23)
Whether handcuffs or other restraint should be
imposed on a prisoner is a matter for the decision of
the authority responsible for his custody. But there
is room for imposing supervisory regime over the
39
exercise of that power. One sector of supervisory
jurisdiction could appropriately lie with the court
trying the accused, and it would be desirable for the
custodial authority to inform that court of the
circumstances in which, and the justification for,
imposing a restraint on the body of the accused. It
should be for the court concerned to work out the
modalities of the procedure requisite for the
purpose of enforcing such control."
75. After dealing with the concept of life and liberty under the
Indian Constitution, we would like to have the brief survey of
other countries to ascertain how life and liberty has been
protected in other countries.
UNITED KINGDOM
76. Life and personal liberty has been given prime importance
in the United Kingdom. It was in 1215 that the people of England
revolted against King John and enforced their rights, first time
the King had acknowledged that there were certain rights of the
subject could be called Magna Carta 1215. In 1628 the petition
of rights was presented to King Charles-I which was the 1st step
in the transfer of Sovereignty from the King to Parliament. It was
passed as the Bill of Rights 1689.
77. In the Magna Carta, it is stated "no free man shall be taken,
or imprisoned or disseised or outlawed or banished or any ways
40
destroyed, nor will the King pass upon him or commit him to
prison, unless by the judgment of his peers or the law of the
land".
78. Right to life is the most fundamental of all human rights
and any decision affecting human right or which may put an
individual's life at risk must call for the most anxious scrutiny.
See: Bugdaycay v. Secretary of State for the Home
Department (1987) 1 All ER 940. The sanctity of human life is
probably the most fundamental of the human social values. It is
recognized in all civilized societies and their legal system and by
the internationally recognized statements of human rights. See:
R on the application of Pretty v. Director of Public
Prosecutions (2002) 1 All ER 1.
U.S.A.
79. The importance of personal liberty is reflected in the Fifth
Amendment to the Constitution of U.S.A. (1791) which declares
as under :-
"No person shall be.....deprived of his life, liberty or
property, without due process of law." (The `due
process' clause was adopted in s.1(a) of the
Canadian Bill of Rights Act, 1960. In the Canada
Act, 1982, this expression has been substituted by
`the principles of fundamental justice' [s.7].
41
80. The Fourteenth Amendment imposes similar limitation on
the State authorities. These two provisions are conveniently
referred to as the `due process clauses'. Under the above clauses
the American Judiciary claims to declare a law as bad, if it is not
in accordance with `due process', even though the legislation
may be within the competence of the Legislature concerned. Due
process is conveniently understood means procedural regularity
and fairness. (Constitutional Interpretation by Craig R. Ducat, 8 th
Edn. 2002 p.475.).
WEST GERMANY
81. Article 2(2) of the West German Constitution (1948)
declares:
"Everyone shall have the right to life and physical
inviolability. The freedom of the individual shall be
inviolable. These rights may be interfered with only on
the basis of the legal order."
Though the freedom of life and liberty guaranteed by the above
Article may be restricted, such restriction will be valid only if it is
in conformity with the `legal order' (or `pursuant to a law,
according to official translation). Being a basic right, the
freedom guaranteed by Article 2(2) is binding on the legislative,
administrative and judicial organs of the State [Article 1(3)]. This
42
gives the individual the rights to challenge the validity of a law or
an executive act violative the freedom of the person by a
constitutional complaint to the Federal Constitutional Court,
under Article 93. Procedural guarantee is given by Articles
103(1) and 104. Article 104(1)-2(2) provides:
"(1) The freedom of the individual may be restricted
only on the basis of a formal law and only with due
regard to the forms prescribed therein..........
(2) Only the Judge shall decide on the admissibility
and continued deprivation of liberty."
82. These provisions correspond to Article 21 of our
Constitution and the court is empowered to set a man to liberty
if it appears that he has been imprisoned without the authority
of a formal law or in contravention of the procedure prescribed
there.
JAPAN
83. Article XXXI of the Japanese Constitution of 1946 says :
"No person shall be deprived of life or liberty nor shall
any other criminal penalty be imposed, except
according to procedure established by law."
This article is similar to Article 21 of our Constitution save that it
includes other criminal penalties, such as fine or forfeiture
within its ambit.
43
CANADA
84. S. 1(1) of the Canadian Bill of Rights Act, 1960, adopted the
`Due Process' Clause from the American Constitution. But the
difference in the Canadian set-up was due to the fact that this
Act was not a constitutional instrument to impose a direct
limitation on the Legislature but only a statute for interpretation
of Canadian status, which, again, could be excluded from the
purview of the Act of 1960, in particular cases, by an express
declaration made by the Canadian Parliament itself (s.2). The
result was obvious : The Canadian Supreme Court in R. v. Curr
(1972) S.C.R. 889 held that the Canadian Court would not
import `substantive reasonableness' into s.1(a), because of the
unsalutary experience of substantive due process in the U.S.A.;
and that as to `procedural reasonableness', s.1(a) of the Bill of
Rights Act only referred to `the legal processes recognized by
Parliament and the Courts in Canada'. The result was that in
Canada, the `due process clause' lost its utility as an instrument
of judicial review of legislation and it came to mean practically
the same thing as whatever the Legislature prescribes, - much
the same as `procedure established by law' in Article 21 of the
Constitution of India, as interpreted in A.K. Gopalan (supra).
44
BANGADESH
85. Article 32 of the Constitution of Bangladesh, 1972 [3 SCW
385] reads as under:
"No person shall be deprived of life or personal liberty
save in accordance with law."
This provision is similar to Article 21 of the Indian Constitution.
Consequently, unless controlled by some other provision, it
should be interpreted as in India.
PAKISTAN
86. Article 9 Right to life and Liberty. - "Security of Person : No
person shall be deprived of life and liberty save in accordance
with law."
NEPAL
87. In the 1962 - Constitution of Nepal, there is Article 11(1)
which deals with right to life and liberty which is identical with
Article 21 of the Indian Constitution.
INTERNATIONAL CHARTERS
88. Universal Declaration, 1948. - Article 3 of the Universal
Declaration says:
"Everyone has the right to life, liberty and security of
person."
45
Article 9 provides:
"No one shall be subjected to arbitrary arrest,
detention or exile."
Cl.10 says:
"Everyone is entitled in full equality to a fair and
public hearing by an independent and impartial
tribunal, in the determination of his rights and
obligations and of any criminal charge against him."
[As to its legal effect, see M. v. Organisation Belge,
(1972) 45 Inter, LR 446 (447, 451, et. Sq.)]
89. Covenant on Civil and Political Rights - Article 9(1) of the
U.N. 1966, 1966 says:
"Everyone has the right to liberty and security of
person. No one shall be subjected to arbitrary arrest
or detention. No one shall be deprived of his liberty
except on such grounds and in accordance with such
procedure as are established by law."
90. European Convention on Human Rights, 1950. - This
Convention contains a most elaborate and detailed codification of
the rights and safeguards for the protection of life and personal
liberty against arbitrary invasion.
91. In every civilized democratic country, liberty is considered
to be the most precious human right of every person. The Law
Commission of India in its 177th Report under the heading
`Introduction to the doctrine of "arrest" has described as follows:
46
"Liberty is the most precious of all the human
rights". It has been the founding faith of the human
race for more than 200 years. Both the American
Declaration of Independence, 1776 and the French
Declaration of the Rights of Man and the Citizen,
1789, spoke of liberty being one of the natural and
inalienable rights of man. The universal declaration of
human rights adopted by the general assembly on
United Nations on December 10, 1948 contains
several articles designed to protect and promote the
liberty of individual. So does the international
covenant on civil and political rights, 1996. Above all,
Article 21 of the Constitution of India proclaims that
no one shall be deprived of his right to personal liberty
except in accordance with the procedure prescribed by
law. Even Article 20(1) & (2) and Article 22 are born
out of a concern for human liberty. As it is often said,
"one realizes the value of liberty only when he is
deprived of it." Liberty, along with equality is the most
fundamental of human rights and the fundamental
freedoms guaranteed by the Constitution. Of equal
importance is the maintenance of peace, law and order
in the society. Unless, there is peace, no real progress
is possible. Societal peace lends stability and security
to the polity. It provides the necessary conditions for
growth, whether it is in the economic sphere or in the
scientific and technological spheres."
92. Just as the Liberty is precious to an individual, so is the
society's interest in maintenance of peace, law and order. Both
are equally important.
93. It is a matter of common knowledge that a large number of
undertrials are languishing in jail for a long time even for
allegedly committing very minor offences. This is because
section 438 Cr.P.C. has not been allowed its full play. The
47
Constitution Bench in Sibbia's case (supra) clearly mentioned
that section 438 Cr.P.C. is extraordinary because it was
incorporated in the Code of Criminal Procedure, 1973 and before
that other provisions for grant of bail were sections 437 and 439
Cr.P.C. It is not extraordinary in the sense that it should be
invoked only in exceptional or rare cases. Some courts of
smaller strength have erroneously observed that section 438
Cr.P.C. should be invoked only in exceptional or rare cases.
Those orders are contrary to the law laid down by the judgment
of the Constitution Bench in Sibbia's case (supra). According to
the report of the National Police Commission, the power of arrest
is grossly abused and clearly violates the personal liberty of the
people, as enshrined under Article 21 of the Constitution, then
the courts need to take serious notice of it. When conviction rate
is admittedly less than 10%, then the police should be slow in
arresting the accused. The courts considering the bail
application should try to maintain fine balance between the
societal interest vis-`-vis personal liberty while adhering to the
fundamental principle of criminal jurisprudence that the accused
that the accused is presumed to be innocent till he is found
guilty by the competent court.
48
94. The complaint filed against the accused needs to be
thoroughly examined including the aspect whether the
complainant has filed false or frivolous complaint on earlier
occasion. The court should also examine the fact whether there
is any family dispute between the accused and the complainant
and the complainant must be clearly told that if the complaint is
found to be false or frivolous, then strict action will be taken
against him in accordance with law. If the connivance between
the complainant and the investigating officer is established then
action be taken against the investigating officer in accordance
with law.
95. The gravity of charge and exact role of the accused must be
properly comprehended. Before arrest, the arresting officer must
record the valid reasons which have led to the arrest of the
accused in the case diary. In exceptional cases the reasons
could be recorded immediately after the arrest, so that while
dealing with the bail application, the remarks and observations
of the arresting officer can also be properly evaluated by the
court.
49
96. It is imperative for the courts to carefully and with
meticulous precision evaluate the facts of the case. The
discretion must be exercised on the basis of the available
material and the facts of the particular case. In cases where the
court is of the considered view that the accused has joined
investigation and he is fully cooperating with the investigating
agency and is not likely to abscond, in that event, custodial
interrogation should be avoided.
97. A great ignominy, humiliation and disgrace is attached to
the arrest. Arrest leads to many serious consequences not only
for the accused but for the entire family and at times for the
entire community. Most people do not make any distinction
between arrest at a pre-conviction stage or post-conviction stage.
Whether the powers under section 438 Cr.P.C. are subject to
limitation of section 437 Cr.P.C.?
98. The question which arises for consideration is whether the
powers under section 438 Cr.P.C. are unguided or uncanalised
or are subject to all the limitations of section 437 Cr.P.C.? The
Constitution Bench in Sibbia's case (supra) has clearly observed
that there is no justification for reading into section 438 Cr.P.C.
and the limitations mentioned in section 437 Cr.P.C. The Court
50
further observed that the plentitude of the section must be given
its full play. The Constitution Bench has also observed that the
High Court is not right in observing that the accused must make
out a "special case" for the exercise of the power to grant
anticipatory bail. This virtually, reduces the salutary power
conferred by section 438 Cr.P.C. to a dead letter. The Court
observed that "We do not see why the provisions of Section 438
Cr.P.C. should be suspected as containing something volatile or
incendiary, which needs to be handled with the greatest care and
caution imaginable."
99. As aptly observed in Sibbia's case (supra) that a wise
exercise of judicial power inevitably takes care of the evil
consequences which are likely to flow out of its intemperate use.
Every kind of judicial discretion, whatever may be the nature of
the matter in regard to which it is required to be exercised, has
to be used with due care and caution. In fact, an awareness of
the context in which the discretion is required to be exercised
and of the reasonably foreseeable consequences of its use, is the
hallmark of a prudent exercise of judicial discretion. One ought
not to make a bugbear of the power to grant anticipatory bail.
51
100. The Constitution Bench in the same judgment also
observed that a person seeking anticipatory bail is still a free
man entitled to the presumption of innocence. He is willing to
submit to restraints and conditions on his freedom, by the
acceptance of conditions which the court may deem fit to impose,
in consideration of the assurance that if arrested, he shall
enlarged on bail.
101. The proper course of action ought to be that after
evaluating the averments and accusation available on the record
if the court is inclined to grant anticipatory bail then an interim
bail be granted and notice be issued to the public prosecutor.
After hearing the public prosecutor the court may either reject
the bail application or confirm the initial order of granting bail.
The court would certainly be entitled to impose conditions for the
grant of bail. The public prosecutor or complainant would be at
liberty to move the same court for cancellation or modifying the
conditions of bail any time if liberty granted by the court is
misused. The bail granted by the court should ordinarily be
continued till the trial of the case.
52
102. The order granting anticipatory bail for a limited duration
and thereafter directing the accused to surrender and apply
before a regular bail is contrary to the legislative intention and
the judgment of the Constitution Bench in Sibbia's case
(supra).
103. It is a settled legal position that the court which grants the
bail also has the power to cancel it. The discretion of grant or
cancellation of bail can be exercised either at the instance of the
accused, the public prosecutor or the complainant on finding
new material or circumstances at any point of time.
104. The intention of the legislature is quite clear that the power
of grant or refusal of bail is entirely discretionary. The
Constitution Bench in Sibbia's case (supra) has clearly stated
that grant and refusal is discretionary and it should depend on
the facts and circumstances of each case. The Constitution
Bench in the said case has aptly observed that we must respect
the wisdom of the Legislature entrusting this power to the
superior courts namely, the High Court and the Court of
Session. The Constitution Bench observed as under:
53
"We would, therefore, prefer to leave the High Court
and the Court of Session to exercise their jurisdiction
under Section 438 by a wise and careful use of their
discretion which, by their long training and
experience, they are ideally suited to do. The ends of
justice will be better served by trusting these courts to
act objectively and in consonance with principles
governing the grant of bail which are recognized over
the years, than by divesting them of their discretion
which the legislature has conferred upon them, by
laying down inflexible rules of general application. It is
customary, almost chronic, to take a statute as one
finds it on the grounds that, after all "the legislature
in, its wisdom" has thought it fit to use a particular
expression. A convention may usefully grow whereby
the High Court and the Court of Session may be
trusted to exercise their discretionary powers in their
wisdom, especially when the discretion is entrusted to
their care by the legislature in its wisdom. If they err,
they are liable to be corrected."
GRANT OF BAIL FOR LIMITED PERIOD IS CONTRARY TO
THE LEGISLATIVE INTENTION AND LAW DECLARED BY THE
CONSTITUTION BENCH:
105. The court which grants the bail has the right to cancel the
bail according to the provisions of the General Clauses Act but
ordinarily after hearing the public prosecutor when the bail order
is confirmed then the benefit of the grant of the bail should
continue till the end of the trial of that case.
106. The judgment in Salauddin Abdulsamad Shaikh (supra)
is contrary to legislative intent and the spirit of the very
provisions of the anticipatory bail itself and has resulted in an
54
artificial and unreasonable restriction on the scope of enactment
contrary to the legislative intention.
107. The restriction on the provision of anticipatory bail under
section 438 Cr.P.C. limits the personal liberty of the accused
granted under Article 21 of the constitution. The added
observation is nowhere found in the enactment and bringing in
restrictions which are not found in the enactment is again an
unreasonable restriction. It would not stand the test of fairness
and reasonableness which is implicit in Article 21 of the
Constitution after the decision in Maneka Gandhi's case (supra)
in which the court observed that in order to meet the challenge
of Article 21 of the Constitution the procedure established by law
for depriving a person of his liberty must be fair, just and
reasonable.
108. Section 438 Cr.P.C. does not mention anything about the
duration to which a direction for release on bail in the event of
arrest can be granted. The order granting anticipatory bail is a
direction specifically to release the accused on bail in the event
of his arrest. Once such a direction of anticipatory bail is
executed by the accused and he is released on bail, the
55
concerned court would be fully justified in imposing conditions
including direction of joining investigation.
109. The court does not use the expression `anticipatory bail' but
it provides for issuance of direction for the release on bail by the
High Court or the Court of Sessions in the event of arrest.
According to the aforesaid judgment of Salauddin's case, the
accused has to surrender before the trial court and only
thereafter he/she can make prayer for grant of bail by the trial
court. The trial court would release the accused only after he has
surrendered.
110. In pursuance to the order of the Court of Sessions or the
High Court, once the accused is released on bail by the trial
court, then it would be unreasonable to compel the accused to
surrender before the trial court and again apply for regular bail.
111. The court must bear in mind that at times the applicant
would approach the court for grant of anticipatory bail on mere
apprehension of being arrested on accusation of having
committed a non-bailable offence. In fact, the investigating or
concerned agency may not otherwise arrest that applicant who
has applied for anticipatory bail but just because he makes an
56
application before the court and gets the relief from the court for
a limited period and thereafter he has to surrender before the
trial court and only thereafter his bail application can be
considered and life of anticipatory bail comes to an end. This
may lead to disastrous and unfortunate consequences. The
applicant who may not have otherwise lost his liberty loses it
because he chose to file application of anticipatory bail on mere
apprehension of being arrested on accusation of having
committed a non-bailable offence. No arrest should be made
because it is lawful for the police officer to do so. The existence
of power to arrest is one thing and the justification for the
exercise of it is quite another. The police officer must be able to
justify the arrest apart from his power to do so. This finding of
the said judgment (supra) is contrary to the legislative intention
and law which has been declared by a Constitution Bench of this
court in Sibbia's case (supra).
112. The validity of the restrictions imposed by the Apex Court,
namely, that the accused released on anticipatory bail must
submit himself to custody and only thereafter can apply for
regular bail. This is contrary to the basic intention and spirit of
section 438 Cr.P.C. It is also contrary to Article 21 of the
57
Constitution. The test of fairness and reasonableness is implicit
under Article 21 of the Constitution of India. Directing the
accused to surrender to custody after the limited period amounts
to deprivation of his personal liberty.
113. It is a settled legal position crystallized by the Constitution
Bench of this court in Sibbia's case (supra) that the courts
should not impose restrictions on the ambit and scope of section
438 Cr.P.C. which are not envisaged by the Legislature. The
court cannot rewrite the provision of the statute in the garb of
interpreting it.
114. It is unreasonable to lay down strict, inflexible and rigid
rules for exercise of such discretion by limiting the period of
which an order under this section could be granted. We deem it
appropriate to reproduce some observations of the judgment of
the Constitution Bench of this court in the Sibbia's case
(supra).
"The validity of that section must accordingly be
examined by the test of fairness and reasonableness
which is implicit in Article 21. If the legislature itself
were to impose an unreasonable restriction on the
grant of anticipatory bail, such a restriction could
have been struck down as being violative of Article 21.
Therefore, while determining the scope of Section 438,
the court should not impose any unfair or
58
unreasonable limitation on the individual's right to
obtain an order of anticipatory bail. Imposition of an
unfair or unreasonable limitation, according to the
learned Counsel, would be violative of Article 21,
irrespective of whether it is imposed by legislation or
by judicial decision.
xxx xxx xxx
Clause (1) of Section 438 is couched in terms,
broad and unqualified. By any known canon of
construction, words of width and amplitude ought not
generally to be cut down so as to read into the
language of the statute restraints and conditions
which the legislature itself did not think it proper or
necessary to impose. This is especially true when the
statutory provision which falls for consideration is
designed to secure a valuable right like the right to
personal freedom and involves the application of a
presumption as salutary and deep grained in our
criminal jurisprudence as the presumption of
innocence."
xxx xxx xxx
"I desire in the first instance to point out that the
discretion given by the section is very wide. . . Now it
seems to me that when the Act is so expressed to
provide a wide discretion, ... it is not advisable to lay
down any rigid rules for guiding that discretion. I do
not doubt that the rules enunciated by the Master of
the Rolls in the present case are useful maxims in
general, and that in general they reflect the point of
view from which judges would regard an application
for relief. But I think it ought to be distinctly
understood that there may be cases in which any or
all of them may be disregarded. If it were otherwise,
the free discretion given by the statute would be
fettered by limitations which have nowhere been
enacted. It is one thing to decide what is the true
meaning of the language contained in an Act of
Parliament. It is quite a different thing to place
59
conditions upon a free discretion entrusted by statute
to the court where the conditions are not based upon
statutory enactment at all. It is not safe, I think, to say
that the court must and will always insist upon
certain things when the Act does not require them,
and the facts of some unforeseen case may make the
court wish it had kept a free hand."
xxx xxx xxx
"The concern of the courts generally is to preserve
their discretion without meaning to abuse it. It will be
strange if we exhibit concern to stultify the discretion
conferred upon the courts by law."
115. The Apex Court in Salauddin's case (supra) held that
anticipatory bail should be granted only for a limited period and
on the expiry of that duration it should be left to the regular
court to deal with the matter is not the correct view. The reasons
quoted in the said judgment is that anticipatory bail is granted
at a stage when an investigation is incomplete and the court is
not informed about the nature of evidence against the alleged
offender.
116. The said reason would not be right as the restriction is not
seen in the enactment and bail orders by the High Court and
Sessions Court are granted under sections 437 and 439 also at
such stages and they are granted till the trial.
60
117. The view expressed by this Court in all the above referred
judgments have to be reviewed and once the anticipatory bail is
granted then the protection should ordinarily be available till the
end of the trial unless the interim protection by way of the grant
of anticipatory bail is curtailed when the anticipatory bail
granted by the court is cancelled by the court on finding fresh
material or circumstances or on the ground of abuse of the
indulgence by the accused.
SCOPE AND AMBIT OF ANTICIPATORY BAIL:
118. A good deal of misunderstanding with regard to the ambit
and scope of section 438 Cr.P.C. could have been avoided in case
the Constitution Bench decision of this court in Sibbia's case
(supra) was correctly understood, appreciated and applied.
119. This Court in the Sibbia's case (supra) laid down the
following principles with regard to anticipatory bail:
a) Section 438(1) is to be interpreted in light of Article
21 of the Constitution of India.
b) Filing of FIR is not a condition precedent to exercise
of power under section 438.
c) Order under section 438 would not affect the right
of police to conduct investigation.
d) Conditions mentioned in section 437 cannot be
read into section 438.
61
e) Although the power to release on anticipatory bail
can be described as of an "extraordinary" character
this would "not justify the conclusion that the
power must be exercised in exceptional cases only."
Powers are discretionary to be exercised in light of
the circumstances of each case.
f) Initial order can be passed without notice to the
Public Prosecutor. Thereafter, notice must be
issued forthwith and question ought to be re-
examined after hearing. Such ad interim order
must conform to requirements of the section and
suitable conditions should be imposed on the
applicant.
120. The Law Commission in July 2002 has severely criticized
the police of our country for the arbitrary use of power of arrest
which, the Commission said, is the result of the vast
discretionary powers conferred upon them by this Code. The
Commission expressed concern that there is no internal
mechanism within the police department to prevent misuse of
law in this manner and the stark reality that complaint lodged in
this regard does not bring any result. The Commission intends
to suggest amendments in the Criminal Procedure Code and has
invited suggestions from various quarters. Reference is made in
this Article to the 41st Report of the Law Commission wherein the
Commission saw `no justification' to require a person to submit
to custody, remain in prison for some days and then apply for
62
bail even when there are reasonable grounds for holding that the
person accused of an offence is not likely to abscond or
otherwise misuse his liberty. Discretionary power to order
anticipatory bail is required to be exercised keeping in mind
these sentiments and spirit of the judgments of this court in
Sibbia's case (supra) and Joginder Kumar v. State of U.P.
and Others (1994) 4 SCC 260.
Relevant consideration for exercise of the power
121. No inflexible guidelines or straitjacket formula can be
provided for grant or refusal of anticipatory bail. We are clearly
of the view that no attempt should be made to provide rigid and
inflexible guidelines in this respect because all circumstances
and situations of future cannot be clearly visualized for the grant
or refusal of anticipatory bail. In consonance with the legislative
intention the grant or refusal of anticipatory bail should
necessarily depend on facts and circumstances of each case. As
aptly observed in the Constitution Bench decision in Sibbia's
case (supra) that the High Court or the Court of Sessions to
exercise their jurisdiction under section 438 Cr.P.C. by a wise
and careful use of their discretion which by their long training
and experience they are ideally suited to do. In any event, this is
63
the legislative mandate which we are bound to respect and
honour.
122. The following factors and parameters can be taken into
consideration while dealing with the anticipatory bail:
i. The nature and gravity of the accusation and the
exact role of the accused must be properly
comprehended before arrest is made;
ii. The antecedents of the applicant including the fact
as to whether the accused has previously
undergone imprisonment on conviction by a Court
in respect of any cognizable offence;
iii. The possibility of the applicant to flee from justice;
iv. The possibility of the accused's likelihood to repeat
similar or the other offences.
v. Where the accusations have been made only with
the object of injuring or humiliating the applicant
by arresting him or her.
vi. Impact of grant of anticipatory bail particularly in
cases of large magnitude affecting a very large
number of people.
vii. The courts must evaluate the entire available
material against the accused very carefully. The
court must also clearly comprehend the exact role
of the accused in the case. The cases in which
accused is implicated with the help of sections 34
and 149 of the Indian Penal Code, the court should
consider with even greater care and caution
because over implication in the cases is a matter of
common knowledge and concern;
viii. While considering the prayer for grant of
anticipatory bail, a balance has to be struck
between two factors namely, no prejudice should be
64
caused to the free, fair and full investigation and
there should be prevention of harassment,
humiliation and unjustified detention of the
accused;
ix. The court to consider reasonable apprehension of
tampering of the witness or apprehension of threat
to the complainant;
x. Frivolity in prosecution should always be
considered and it is only the element of
genuineness that shall have to be considered in the
matter of grant of bail and in the event of there
being some doubt as to the genuineness of the
prosecution, in the normal course of events, the
accused is entitled to an order of bail.
123. The arrest should be the last option and it should be
restricted to those exceptional cases where arresting the accused
is imperative in the facts and circumstances of that case.
124. The court must carefully examine the entire available
record and particularly the allegations which have been directly
attributed to the accused and these allegations are corroborated
by other material and circumstances on record.
125. These are some of the factors which should be taken into
consideration while deciding the anticipatory bail applications.
These factors are by no means exhaustive but they are only
illustrative in nature because it is difficult to clearly visualize all
situations and circumstances in which a person may pray for
65
anticipatory bail. If a wise discretion is exercised by the
concerned judge, after consideration of entire material on record
then most of the grievances in favour of grant of or refusal of bail
will be taken care of. The legislature in its wisdom has entrusted
the power to exercise this jurisdiction only to the judges of the
superior courts. In consonance with the legislative intention we
should accept the fact that the discretion would be properly
exercised. In any event, the option of approaching the superior
court against the court of Sessions or the High Court is always
available.
126. Irrational and Indiscriminate arrest are gross violation of
human rights. In Joginder Kumar's case (supra), a three
Judge Bench of this Court has referred to the 3rd report of the
National Police Commission, in which it is mentioned that the
quality of arrests by the Police in India mentioned power of arrest
as one of the chief sources of corruption in the police. The report
suggested that, by and large, nearly 60% of the arrests were
either unnecessary or unjustified and that such unjustified
police action accounted for 43.2% of the expenditure of the jails.
66
127. Personal liberty is a very precious fundamental right and it
should be curtailed only when it becomes imperative according to
the peculiar facts and circumstances of the case.
128 In case, the State consider the following suggestions in
proper perspective then perhaps it may not be necessary to
curtail the personal liberty of the accused in a routine
manner. These suggestions are only illustrative and not
exhaustive.
1) Direct the accused to join investigation and only
when the accused does not cooperate with the
investigating agency, then only the accused be
arrested.
2) Seize either the passport or such other related
documents, such as, the title deeds of properties
or the Fixed Deposit Receipts/Share Certificates
of the accused.
3) Direct the accused to execute bonds;
4) The accused may be directed to furnish sureties
of number of persons which according to the
prosecution are necessary in view of the facts of
the particular case.
5) The accused be directed to furnish undertaking
that he would not visit the place where the
witnesses reside so that the possibility of
tampering of evidence or otherwise influencing
the course of justice can be avoided.
6) Bank accounts be frozen for small duration
during investigation.
67
129) In case the arrest is imperative, according to the facts of
the case, in that event, the arresting officer must clearly record
the reasons for the arrest of the accused before the arrest in the
case diary, but in exceptional cases where it becomes imperative
to arrest the accused immediately, the reasons be recorded in the
case diary immediately after the arrest is made without loss of
any time so that the court has an opportunity to properly
consider the case for grant or refusal of bail in the light of
reasons recorded by the arresting officer.
130. Exercise of jurisdiction under section 438 of Cr.P.C. is
extremely important judicial function of a judge and must be
entrusted to judicial officers with some experience and good
track record. Both individual and society have vital interest in
orders passed by the courts in anticipatory bail applications.
131. It is imperative for the High Courts through its judicial
academies to periodically organize workshops, symposiums,
seminars and lectures by the experts to sensitize judicial officers,
police officers and investigating officers so that they can properly
comprehend the importance of personal liberty vis-`-vis social
68
interests. They must learn to maintain fine balance between the
personal liberty and the social interests.
132. The performance of the judicial officers must be periodically
evaluated on the basis of the cases decided by them. In case,
they have not been able to maintain balance between personal
liberty and societal interests, the lacunae must be pointed out to
them and they may be asked to take corrective measures in
future. Ultimately, the entire discretion of grant or refusal of bail
has to be left to the judicial officers and all concerned must
ensure that grant or refusal of bail is considered basically on the
facts and circumstances of each case.
133. In our considered view, the Constitution Bench in Sibbia's
case (supra) has comprehensively dealt with almost all aspects
of the concept of anticipatory bail under section 438 Cr.P.C. A
number of judgments have been referred to by the learned
counsel for the parties consisting of Benches of smaller strength
where the courts have observed that the anticipatory bail should
be of limited duration only and ordinarily on expiry of that
duration or standard duration, the court granting the
anticipatory bail should leave it to the regular court to deal with
69
the matter. This view is clearly contrary to the view taken by the
Constitution Bench in Sibbia's case (supra). In the preceding
paragraphs, it is clearly spelt out that no limitation has been
envisaged by the Legislature under section 438 Cr.P.C. The
Constitution Bench has aptly observed that "we see no valid
reason for rewriting section 438 with a view, not to expanding
the scope and ambit of the discretion conferred on the High
Court or the Court of Session but, for the purpose of limiting it".
134. In view of the clear declaration of law laid down by the
Constitution Bench in Sibbia's case (supra), it would not be
proper to limit the life of anticipatory bail. When the court
observed that the anticipatory bail is for limited duration and
thereafter the accused should apply to the regular court for bail,
that means the life of section 438 Cr.P.C. would come to an end
after that limited duration. This limitation has not been
envisaged by the legislature. The Constitution Bench in
Sibbia's case (supra) clearly observed that it is not necessary to
re-write section 438 Cr.P.C. Therefore, in view of the clear
declaration of the law by the Constitution Bench, the life of the
order under section 438 Cr.P.C. granting bail cannot be
curtailed.
70
135. The ratio of the judgment of the Constitution Bench in
Sibbia's case (supra) perhaps was not brought to the notice of
their Lordships who had decided the cases of Salauddin
Abdulsamad Shaikh v. State of Maharashtra, K. L. Verma v.
State and Another, Adri Dharan Das v. State of West Bengal
and Sunita Devi v. State of Bihar and Another (supra).
136. In Naresh Kumar Yadav v. Ravindra Kumar (2008) 1
SCC 632, a two-Judge Bench of this Court observed "the
power exercisable under section 438 Cr.P.C. is somewhat
extraordinary in character and it should be exercised only in
exceptional cases. This approach is contrary to the legislative
intention and the Constitution Bench's decision in Sibbia's
case (supra).
137. We deem it appropriate to reiterate and assert that
discretion vested in the court in all matters should be
exercised with care and circumspection depending upon the
facts and circumstances justifying its exercise. Similarly, the
discretion vested with the court under section 438 Cr.P.C.
should also be exercised with caution and prudence. It is
unnecessary to travel beyond it and subject to the wide power
71
and discretion conferred by the legislature to a rigorous code
of self-imposed limitations.
138. The judgments and orders mentioned in paras 135 and
136 are clearly contrary to the law declared by the
Constitution Bench of this Court in Sibbia's case (supra).
These judgments and orders are also contrary to the legislative
intention. The Court would not be justified in re-writing
section 438 Cr.P.C.
139. Now we deem it imperative to examine the issue of per
incuriam raised by the learned counsel for the parties. In
Young v. Bristol Aeroplane Company Limited (1994) All ER
293 the House of Lords observed that `Incuria' literally means
`carelessness'. In practice per incuriam appears to mean per
ignoratium. English courts have developed this principle in
relaxation of the rule of stare decisis. The `quotable in law' is
avoided and ignored if it is rendered, `in ignoratium of a statute
or other binding authority. The same has been accepted,
approved and adopted by this court while interpreting Article
141 of the Constitution which embodies the doctrine of
precedents as a matter of law.
72
"......... In Halsbury's Laws of England (4th Edn.)
Vol. 26: Judgment and Orders: Judicial Decisions as
Authorities (pp. 297-98, para 578) per incuriam has
been elucidated as under:
"A decision is given per incuriam when
the court has acted in ignorance of a
previous decision of its own or of a court
of coordinate jurisdiction which covered
the case before it, in which case it must
decide which case to follow (Young v.
Bristol Aeroplane Co. Ltd., 1944 KB 718
at 729 : (1944) 2 All ER 293 at 300.
In Huddersfield Police Authority v.
Watson, 1947 KB 842 : (1947) 2 All ER
193.); or when it has acted in ignorance
of a House of Lords decision, in which
case it must follow that decision; or when
the decision is given in ignorance of the
terms of a statute or rule having
statutory force."
140. Lord Godard, C.J. in Huddersfield Police Authority v.
Watson (1947) 2 All ER 193 observed that where a case or
statute had not been brought to the court's attention and the
court gave the decision in ignorance or forgetfulness of the
existence of the case or statute, it would be a decision
rendered in per incuriam.
141. This court in Government of A.P. and Another v. B.
Satyanarayana Rao (dead) by LRs. and Others (2000) 4
SCC 262 observed as under:
73
"The rule of per incuriam can be applied where a
court omits to consider a binding precedent of the
same court or the superior court rendered on the
same issue or where a court omits to consider any
statute while deciding that issue."
142. In a Constitution Bench judgment of this Court in Union
of India v. Raghubir Singh (1989) 2 SCC 754, Chief Justice
Pathak observed as under:
"The doctrine of binding precedent has the merit of
promoting a certainty and consistency in judicial
decisions, and enables an organic development of
the law, besides providing assurance to the
individual as to the consequence of transactions
forming part of his daily affairs. And, therefore, the
need for a clear and consistent enunciation of legal
principle in the decisions of a court."
143. In Thota Sesharathamma and another v. Thota
Manikyamma (Dead) by LRs. and others (1991) 4 SCC 312 a
two Judge Bench of this Court held that the three Judge
Bench decision in the case of Mst. Karmi v. Amru (1972) 4
SCC 86 was per incuriam and observed as under:
"...It is a short judgment without adverting to
any provisions of Section 14 (1) or 14(2) of the Act.
The judgment neither makes any mention of any
argument raised in this regard nor there is any
mention of the earlier decision in Badri Pershad v.
Smt. Kanso Devi. The decision in Mst. Karmi cannot
be considered as an authority on the ambit and
scope of Section 14(1) and (2) of the Act."
74
144. In R. Thiruvirkolam v. Presiding Officer and
Another (1997) 1 SCC 9 a two Judge Bench of this Court
observed that the question is whether it was bound to accept
the decision rendered in Gujarat Steel Tubes Ltd. v.
Mazdoor Sabha (1980) 2 SCC 593, which was not in
conformity with the decision of a Constitution Bench in P.H.
Kalyani v. Air France (1964) 2 SCR 104. J.S. Verma, J.
speaking for the court observed as under:
"With great respect, we must say that the
above-quoted observations in Gujarat Steel at P. 215
are not in line with the decision in Kalyani which
was binding or with D.C. Roy to which the learned
Judge, Krishna Iyer, J. was a party. It also does not
match with the underlying juristic principle
discussed in Wade. For the reasons, we are bound
to follow the Constitution Bench decision in
Kalyani, which is the binding authority on the
point."
145. In Bharat Petroleum Corporation Ltd. v. Mumbai
Shramik Sangra and others (2001) 4 SCC 448 a
Constitution Bench of this Court ruled that a decision of a
Constitution Bench of this Court binds a Bench of two learned
Judges of this Court and that judicial discipline obliges them
to follow it, regardless of their doubts about its correctness.
75
146. A Constitution Bench of this Court in Central Board of
Dawoodi Bohra Community v. State of Maharashtra
(2005) 2 SCC 673 has observed that the law laid down by this
Court in a decision delivered by a Bench of larger strength is
binding on any subsequent Bench of lesser or coequal
strength.
147. A three-Judge Bench of this court in Official Liquidator
v. Dayanand and Others (2008) 10 SCC 1 again reiterated
the clear position of law that by virtue of Article 141 of the
Constitution, the judgment of the Constitution Bench in State
of Karnataka and Others v. Umadevi (3) and Others (2006)
4 SCC 1 is binding on all courts including this court till the
same is overruled by a larger Bench. The ratio of the
Constitution Bench has to be followed by Benches of lesser
strength. In para 90, the court observed as under:-
"We are distressed to note that despite several
pronouncements on the subject, there is substantial
increase in the number of cases involving violation
of the basics of judicial discipline. The learned
Single Judges and Benches of the High Courts
refuse to follow and accept the verdict and law laid
down by coordinate and even larger Benches by
citing minor difference in the facts as the ground for
doing so. Therefore, it has become necessary to
reiterate that disrespect to the constitutional ethos
and breach of discipline have grave impact on the
76
credibility of judicial institution and encourages
chance litigation. It must be remembered that
predictability and certainty is an important
hallmark of judicial jurisprudence developed in this
country in the last six decades and increase in the
frequency of conflicting judgments of the superior
judiciary will do incalculable harm to the system
inasmuch as the courts at the grass roots will not
be able to decide as to which of the judgments lay
down the correct law and which one should be
followed."
148. In Subhash Chandra and Another v. Delhi
Subordinate Services Selection Board and Others (2009)
15 SCC 458, this court again reiterated the settled legal
position that Benches of lesser strength are bound by the
judgments of the Constitution Bench and any Bench of
smaller strength taking contrary view is per incuriam. The
court in para 110 observed as under:-
"Should we consider S. Pushpa v.
Sivachanmugavelu (2005) 3 SCC 1 to be an obiter
following the said decision is the question which
arises herein. We think we should. The decisions
referred to hereinbefore clearly suggest that we are
bound by a Constitution Bench decision. We have
referred to two Constitution Bench decisions,
namely, Marri Chandra Shekhar Rao v. Seth G.S.
Medical College (1990) 3 SCC 139 and E.V.
Chinnaiah v. State of A.P. (2005) 1 SCC 394.
Marri Chandra Shekhar Rao (supra) had been
followed by this Court in a large number of
decisions including the three-Judge Bench
decisions. S. Pushpa (supra) therefore, could not
have ignored either Marri Chandra Shekhar Rao
77
(supra) or other decisions following the same only
on the basis of an administrative circular issued or
otherwise and more so when the constitutional
scheme as contained in clause (1) of Articles 341
and 342 of the Constitution of India putting the
State and Union Territory in the same bracket.
Following Official Liquidator v. Dayanand and
Others (2008) 10 SCC 1 therefore, we are of the
opinion that the dicta in S. Pushpa (supra) is an
obiter and does not lay down any binding ratio."
149. The analysis of English and Indian Law clearly leads to
the irresistible conclusion that not only the judgment of a
larger strength is binding on a judgment of smaller strength
but the judgment of a co-equal strength is also binding on a
Bench of judges of co-equal strength. In the instant case,
judgments mentioned in paragraphs 135 and 136 are by two
or three judges of this court. These judgments have clearly
ignored a Constitution Bench judgment of this court in
Sibbia's case (supra) which has comprehensively dealt with
all the facets of anticipatory bail enumerated under section
438 of Cr.P.C.. Consequently, judgments mentioned in
paragraphs 135 and 136 of this judgment are per incuriam.
150. In case there is no judgment of a Constitution Bench or
larger Bench of binding nature and if the court doubts the
correctness of the judgments by two or three judges, then the
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proper course would be to request Hon'ble the Chief Justice to
refer the matter to a larger Bench of appropriate strength.
151. In the instant case there is a direct judgment of the
Constitution Bench of this court in Sibbia's case (supra)
dealing with exactly the same issue regarding ambit, scope
and object of the concept of anticipatory bail enumerated
under section 438 Cr.P.C. The controversy is no longer res
integra. We are clearly bound to follow the said judgment of
the Constitution Bench. The judicial discipline obliges us to
follow the said judgment in letter and spirit.
152. In our considered view the impugned judgment and order
of the High Court declining anticipatory bail to the appellant
cannot be sustained and is consequently set aside.
153. We direct the appellant to join the investigation and fully
cooperate with the investigating agency. In the event of arrest
the appellant shall be released on bail on his furnishing a
personal bond in the sum of Rs.50,000/- with two sureties in
the like amount to the satisfaction of the arresting officer.
154. Consequently, this appeal is allowed and disposed of in
terms of the aforementioned observations.
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...............................................J.
(Dalveer Bhandari)
..............................................J.
(K.S. Panicker
Radhakrishnan)
New Delhi;
December 2, 2010
