1980 (4) TMI 295 - SC - Indian Laws

Whether courts had the inherent power to pass an order of bail in anticipation of arrest? Held that - no hard and fast rules can be laid down in discretionary matters like the grant or refusal of bail, whether anticipatory or otherwise. No such rules can be laid down for the simple reason that a circumstance which, in a given case, turns out to be conclusive, may have no more than ordinary signification in another case. 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 recognised 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.

Summary

Issues Involved:
1. Scope and application of Section 438 of the Code of Criminal Procedure, 1973.
2. Conditions and limitations for granting anticipatory bail.
3. Judicial discretion in granting anticipatory bail.
4. Constitutional implications of Section 438 with respect to personal liberty.
5. Validity of blanket orders for anticipatory bail.
6. Procedural aspects concerning the issuance of anticipatory bail.

Issue-wise Detailed Analysis:

1. Scope and Application of Section 438:
The judgment primarily addresses the balance between personal liberty and the investigational powers of the police under Section 438 of the Code of Criminal Procedure, 1973, which provides for the issuance of directions for the grant of anticipatory bail. The court emphasized that the power to grant anticipatory bail is discretionary and should be exercised judiciously based on the facts and circumstances of each case.

2. Conditions and Limitations for Granting Anticipatory Bail:
The Full Bench of the Punjab and Haryana High Court had laid down several propositions, including that the power under Section 438 is of an extraordinary character and must be exercised sparingly. The Supreme Court, however, found that the High Court's constraints, such as requiring a "special case" for the exercise of this power, were overly restrictive and not supported by the statute. The court clarified that conditions under Section 437 should not be read into Section 438, and the wide discretion conferred by the latter should not be curtailed.

3. Judicial Discretion in Granting Anticipatory Bail:
The Supreme Court emphasized the importance of judicial discretion in granting anticipatory bail, noting that the High Court and the Court of Session should be trusted to exercise their discretion judiciously. The court rejected the idea of imposing rigid rules or conditions not found in the statute, arguing that doing so would stultify the discretion conferred by the legislature.

4. Constitutional Implications of Section 438 with Respect to Personal Liberty:
The court highlighted that Section 438 is a procedural provision concerned with personal liberty, which must be protected. The denial of bail amounts to the deprivation of personal liberty, and any restrictions on the scope of Section 438 must be fair, just, and reasonable to meet the requirements of Article 21 of the Constitution. The court found that the High Court's propositions could make the provision constitutionally vulnerable.

5. Validity of Blanket Orders for Anticipatory Bail:
The court agreed with the High Court that a "blanket order" of anticipatory bail should not generally be passed. Such an order, which covers any and every kind of allegedly unlawful activity, would interfere with the police's right and duty to investigate. The court stressed that specific facts and events must be disclosed to justify the applicant's belief that they may be arrested for a non-bailable offense.

6. Procedural Aspects Concerning the Issuance of Anticipatory Bail:
The court provided several clarifications on procedural aspects:
- An application for anticipatory bail must show reasonable grounds for the applicant's belief that they may be arrested.
- The court must decide whether a case for anticipatory bail has been made out and cannot leave this question to the Magistrate.
- The filing of a First Information Report (FIR) is not a condition precedent for granting anticipatory bail.
- Anticipatory bail can be granted even after an FIR is filed, as long as the applicant has not been arrested.
- The provisions of Section 438 cannot be invoked after the arrest of the accused.
- The court may impose conditions under Section 438(2) to ensure an uninterrupted investigation.

Conclusion:
The Supreme Court allowed the appeals in part, setting aside the judgment of the Full Bench of the Punjab and Haryana High Court to the extent that it imposed undue restrictions on the power to grant anticipatory bail. The court emphasized the need for judicial discretion and the protection of personal liberty, while also ensuring that the investigational rights of the police are not unduly hampered.