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bail_data_text

	Prompt:
	Generate a Bail Application involving the following key legal details:

	- DISTRICT: Not available
	- BAIL APPLICATION: Not available

	---
	Output:

	Supreme Court of India
	Gurbaksh Singh Sibbia Etc vs State Of Punjab on 9 April, 1980
	Equivalent citations: 1980 AIR 1632, 1980 SCR (3) 383
	Author: Y Chandrachud
	Bench: Chandrachud, Y.V. (Cj), Bhagwati, P.N., Untwalia, N.L., Pathak, R.S., Reddy, O.
	Chinnappa (J)
	PETITIONER:
	GURBAKSH SINGH SIBBIA ETC.

	Vs.

	RESPONDENT:
	STATE OF PUNJAB
	DATE OF JUDGMENT09/04/1980
	BENCH:
	CHANDRACHUD, Y.V. ((CJ)
	BENCH:
	CHANDRACHUD, Y.V. ((CJ)
	BHAGWATI, P.N.
	UNTWALIA, N.L.
	PATHAK, R.S.
	REDDY, O. CHINNAPPA (J)
	CITATION:
	1980 AIR 1632 1980 SCR (3) 383
	1980 SCC (2) 565
	CITATOR INFO :
	R 1982 SC 149 (259)
	E&R 1985 SC 969 (6,8,12)
	ACT:
	Bail-Anticipatory Bail-Section 438 of the Code of
	Criminal Procedure Code, 1973 (Act 2 of 1974), Scope of-
	Judicial balancing of personal liberty and the
	investigational powers of the Police, explained.
	HEADNOTE:
	The appellant herein, Sri Gurbaksh Singh Sibbia was a
	Minister of Irrigation and Power in the Congress Ministry of
	the Government of Punjab. Grave allegations of political
	corruption were made against him and others whereupon
	applications were filed in the High Court of Punjab and
	Haryana under section 438 of the Criminal Procedure Code,
	praying that the appellants be directed to be released on
	bail, in the event of their arrest on the aforesaid charges.
	Considering the importance of the matter, a learned single
	Judge referred the applications to a Full Bench, which by
	its judgment dated September, 13, 1977 dismissed them, after
	summarising, what according to it is the true legal
	position, of s. 438 of the Code of Criminal Procedure, 1973

	(Act 2 of 1974) thus:

	(1) The power under Section 438, Criminal

	Procedure Code , is of an extra-ordinary

	character and must be exercised sparingly in
	exceptional cases only.
	(2) Neither Section 438 nor any other provision

	of the Code authorises the grant of blanket

	anticipatory bail for offences not yet
	committed or with regard to accusations not
	so far levelled.
	(3) The said power is not unguided or uncanalised
	but all the limitations imposed in the
	preceding Section 437, are implicit therein
	and must be read into Section 438.
	(4) In addition to the limitations mentioned in
	Section 437, the petitioner must make out a
	special case for the exercise of the power to
	grant anticipatory bail.
	(5) Where a legitimate case for the remand of the
	offender to the police custody under Section

	167(2) can be made out by the investigating

	agency or a reasonable claim to secure
	incriminating material from information
	likely to be received from the offender under
	Section 27 of the Evidence Act can be made
	out, the power under Section 438 should not
	be exercised.
	(6) The discretion under Section 438 cannot be
	exercised with regard to offences punishable
	with death or imprisonment for life unless
	the Court at that very stage is satisfied
	that such a charge appears tobe false or
	groundless.

	384

	(7) The larger interest of the public and State
	demand that in serious cases like economic
	offences involving blatant corruption at the
	higher rungs of the executive and political
	power, the discretion under Section 438 of
	the Code should not be exercised; and
	(8) Mere general allegations of mala fides in the
	petition are inadequate. The court must be
	satisfied on materials before it that the
	allegations of mala fides are substantial and
	the accusation appears to be false and
	groundless.

	The argument that the appellants were men of substance and
	position who were hardly likely to abscond and would be
	prepared willingly to face trial wasrejected by the Full
	Bench with the observation that to accord differential
	treatment to the appellants on account of their status will
	amount to negation of the concept of equality before the law
	and that it could hardly be contended that every man of
	status, who was intended to be charged with serious crimes
	including the one under section 409 was punishable with life
	imprisonment, "was entitled to knock at the door of the
	Court for anticipatory bail". The possession of high status,

	according to the Full Bench, is not only an irrelevant
	consideration for granting anticipatory bail, but is, if
	anything, an aggravating circumstance. Hence the appeals by
	special leave.
	The appellants contended: (a) The power conferred by
	section 438 to grant anticipatory bail is "not limited to
	the contigencies" summarised by the High Court; (b) The
	power to grant anticipatory bail ought to be left to the
	discretion of the Court concerned, depending on the facts
	and circumstances of each particular case; (c) Since the
	denial of bail amounts to deprivation of personal liberty;
	Courts should lean against the imposition of unnecessary
	restrictions on the scope of Section 438 , when no such
	restrictions are imposed by the legislature in the terms of
	that section (d) Section 438 is a procedural provision which
	is concerned with the personal liberty of an individual who
	has not been convicted of the offence in respect of which he
	seeks bail and who must be presumed to be innocent. The
	validity of that section must accordingly be examined by the
	test of fairness and which is implicit in Article 21. If the
	legislature itself were to impose an unreasonable
	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
	unreasonable limitation on the individual's right to obtain
	an order of anticipatory bail. Imposition of an unfair or
	unreasonable limitation would be violative of Article 21
	irrespective of whether it is imposed by legislation or by
	judicial decision.
	Allowing the appeals in part, the Court,
	^
	HELD: 1. The society has a vital stake in both of these
	interests namely, personal liberty and the investigational
	power of the police, though their relative importance at any
	given time depends upon the complexion and restraints of
	political conditions. The Court's task is how best to
	balance these interests while determining the scope of
	section 438 of the Code of Criminal Procedure, 1973. [393 C-
	D]
	2. The High Court and the Court of Session should be
	left to exercise their jurisdiction under section 438 by a
	wise and careful use of their discretion
	385
	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 ground 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. [417 B-D]
	3. Section 438(1) of the Code lays down a condition
	which has to be satisfied before anticipatory bail can be
	granted. The applicant must show that he has "reason to
	believe" that he may be arrested for a non-bailable offence.
	The use of the expression "reason to believe" shows that the
	belief that the applicant may be so arrested must be founded
	on reasonable grounds. Mere 'fear' is not 'belief', for
	which reason it is not enough for the applicant to show that
	he has some sort of a vague apprehension that some one is
	going to make an accusation against him, in pursuance of
	which he may be arrested. The grounds on which the belief of
	the applicant is based that he may be arrested for a non-
	bailable offence, must be capable of being examined by the
	court objectively, because it is then alone that the court
	can determine whether the applicant has reason to believe
	that he may be so arrested. Section 438(1) , therefore,
	cannot be invoked on the basis of vague and general
	allegations, as if to arm oneself in perpetuity against a
	possible arrest. Otherwise, the number of applications for
	anticipatory bail will be as large, as, at any rate, the
	adult populace. Anticipatory bail is a device to secure the
	individual's liberty; it is neithera passport to the
	commission of crimes nor a shield against any and all kinds
	of accusation, likely or unlikely. [417 E-H, 418 A]
	Secondly, if an application for anticipatory bail is
	made to the High Court or the Court of Session it must apply
	its own mind to the question and decide whether a case has
	been made out for granting such relief. It cannot leave the
	question for the decision of the Magistrate concerned under
	Section 437 of the Code, as and when an occasion arises.
	Such a course will defeat the very object of Section 438.
	[418 A-B]
	Thirdly, the filing of a First Information Report is
	not a condition precedent to the exercise of the power under
	Section 438. The imminence of a likely arrest founded on a
	reasonable belief can be shown to exist even if an F.I.R. is
	not yet filed. [418 B-C]
	Fourthly, anticipatory bail can be granted even after
	an F.I.R. is filed, so long as the applicant has not been
	arrested. [418 C]
	Fifthly, the provisions of Section 438 cannot be
	invoked after the arrest of the accused. The grant of
	"anticipatory bail" to an accused who is under arrest
	involves a contradiction in terms, in so far as the offence
	or offences for which he is arrested, are concerned. After
	arrest, the accused must seek his remedy under Section 437
	or Section 439 of the Code, if he wants to be released on
	bail in respect of the offence or offences for which he is
	arrested. [418 C-E]
	386
	4. However, a "blanket order" of anticipatory bail
	should not generally be passed. Thisflows from the very
	language of the section which requires the appellant to show
	that he has "reason to believe" that he may be arrested. A
	belief can be said to be founded on reasonable grounds only

	if there is something tangible to go by on the basis of
	which it can be said that the applicant's apprehension that
	he may be arrested is genuine. That is why, normally, a
	direction should not issue under Section 438(1) to the
	effect that the applicant shall be released on bail
	"whenever arrested for which ever offence whatsoever". That
	is what is meant by a 'blanket order' of anticipatory bail,
	an order which serves as a blanket to cover or protect any
	and every kind of allegedly unlawful activity, in fact any
	eventuality, likely or unlikely regarding which, no concrete
	information can possibly be bad. The rationale of a
	direction under Section 438(1) isthe belief of the
	applicant founded on reasonable grounds that he may be
	arrested for a non-bailable offence. It is unrealistic to
	expect the applicant to draw up his application with the
	meticulousness of a pleading in a civil case and such is not
	requirement of the section. But specific events and facts
	must be disclosed by the applicant in order to enable the
	court to judge of the reasonablenessof his belief, the
	existence of which is the sine qua non of the exercise of
	power conferred by the section. [418 E-H, 419 A]
	Apart from the fact that the very language of the
	statute compels this construction, there is an important
	principle involved in the insistence that facts, on the
	basis of which a direction under Section 438(1) is sought,
	must be clear and specific, not vague and general. It is
	only by the observance of that principle that a possible
	conflict between the right of an individual to his liberty
	and the right of the police to investigateinto crimes
	reported to them can be avoided. [419 A-C]
	A blanket order of anticipatory bail is bound to cause
	serious interference with both the right and the duty of the
	police in the matter of investigation because, regardless of
	what kind of offence is alleged to have been committed by
	the applicant and when, an order of bail which comprehends
	allegedly unlawful activity of any description whatsoever,
	will prevent the police from arresting the applicant even if
	the commits, say, a murder in the presence of the public.
	Such an order can then become a charter of lawlessness and
	weapon to stifle prompt investigation into offences which
	could not possibly be predicated when the order was passed.
	Therefore, the court which grants anticipatory bailmust
	take care to specify the offence or offences in respect of
	which alone the order will be effective. The power should
	not be exercised in a vacuum. [419 C-E]
	5. An order of bail can be passed under section 438(1)
	of the Code without notice to the Public Prosecutor. But
	notice should issue to the public prosecutor or the
	Government Advocate forthwith and the question of bail
	should be re-examined in the light of the respective
	contentions of the parties. The ad-interim order too must
	conform to the requirements of the section and suitable
	conditions should be imposed on the applicant even at that
	stage. [419 E-F]
	6. Equally the operation of an order passed under
	section 438(1) need not necessarily be limited in point of
	time. The Court may, if there are reasons for doing so,

	limit the operation of the order to a short period until
	after the filing of an F.I.R. in respect of the matter
	covered by the order. The applicant may in such cases be
	directed to obtain an order of bail under Section 437 or 439
	of the Code within a reasonably short period after the
	filing of the F.I.R.
	387
	as aforesaid. But this need not be followed as an invariable
	rule. The normal rule should be not to limit the operation
	of the order in relation to a period of time. [419 F-H]
	7. Bail is basically release from restraint, more
	particularly release from the custody of the police. The act
	of arrest directly affects freedom of movement of the person
	arrested by the police, and speaking generally, an order of
	bail gives back to the accused that freedom on condition
	that he will appear to take his trial. Personal recognizance
	suretyship bonds and such other modalities are the means by
	which an assurance is secured from the accused that though
	he has been released on bail, he will present himself as the
	trial of offence or offences of which he is charged and for
	which he was arrested. [397 E-G]
	The distinction between an ordinary order of bail and
	an order of anticipatory bail is that whereas the former is
	granted after arrest and therefore means release from the
	custody of the police, the latter is granted in anticipation
	of arrest and is therefore effective at the very moment of
	arrest. Police custody is an inevitable concomitant of
	arrest for non-bailable offences. An order of anticipatory
	bail constitutes, so to say, an insurance against police
	custody following upon arrest for offence or offences in
	respect of which the order is issued. In other words, unlike
	a post-arrest order of bail, it is a pre-arrest legal
	process which directs that if the person in whose favour it
	is issued is thereafter arrested on the accusation in
	respect of which the direction is issued, he shall be
	released on bail. Section 46(1) of the Code of Criminal
	Procedure which deals with how arrests are to be made,
	provides that in making the arrest the police officer or
	other person making the arrest "shall actually touch or
	confine the body of the person to be arrested, unless there
	be a submission to the custody by word or action". A
	direction under section 438 is intended to confer
	conditional immunity from this 'touch' or confinement. [397
	G-H. 398 A-B]
	8. No one can accuse the police of possessing a healing
	touch nor indeed does anyone have misgivings in regard to
	constraints consequent upon confinement in police custody.
	But, society has come to accept and acquiesce in all that
	follows upon a police arrest with a certain amount of
	sangfroid, in so far as the ordinary rut of criminal
	investigation is concerned. It is the normal day-to-day
	business of the police to investigate into charges brought
	before them and, broadly and generally, they have nothing to
	gain, not favours at any rate, by subjecting ordinary
	criminal to needless harassment. But the crimes, the
	criminals and even the complaints can occasionally possess
	extraordinary features. When the even flow of life becomes

	turbid, the police can be called upon to inquire into
	charges arising out of political antagonism. The powerful
	processes of criminal law can then be perverted for
	achieving extraneous ends. Attendant upon such
	investigations, when the police are not free agents within
	their sphere of duty, is a great amount of inconvenience,
	harassment and humiliation. That can even take the form of
	the parading of a respectable person in hand-cuffs,
	apparently on way to a court of justice. The foul deed is
	done when an adversary is exposed to social ridicule and
	obloquy, no matter when and whether a conviction is secured
	or is at all possible. It is in order to meetsuch
	situations, though not limited to these contingencies, that
	the power to grant anticipatory bail was introduced into the
	Code of 1973. [398 C-F]
	9. 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
	388
	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.
	[401 A-C]
	The legislature conferred a wide discretion on the High
	Court and the Court of Session to grant anticipatory bail
	because it evidently felt, firstly, that it would be
	difficult to enumerate the conditions under which
	anticipatory bail should or should not be granted and
	secondly; because the intention was to allow the higher
	courts in the echelon a somewhat free hand in the grant of
	relief in the nature of anticipatorybail. That is why,
	departing from the terms of Sections 437 and 439, Section
	438(1) uses the language that the High Court or the Court of
	Session "may, if it thinks fit" direct that the applicant be
	released on bail. Sub-section (2) of Section 438 is a
	further and clearer manifestation of the same legislative
	intent to confer a wide discretionary power to grant
	anticipatory bail. It provides that the High Court or the
	Court of Session, while issuing a direction for the grant of
	anticipatory bail, "may include suchconditions in such
	directions in the light of the facts of the particular case,
	as it may think fit" including the conditions which are set
	out in clauses (i) to (iv) of sub-section (2). The proof of
	legislative intent can best be found in the language which
	the legislature uses. Ambiguities can undoubtedly be
	resolved by resort to extraneous aids but words, as wide and
	explicit as have been used in Section 438, must be given
	their full effect, especially when to refuse to do so will
	result in undue impairment of the freedom of the individual
	and the presumption of innocence. It has to be borne in mind
	that anticipatory bail is sought when there is a mere
	apprehension of arrest on the accusation that the applicant

	has committed a non-bailable offence. A person who has yet
	to lose his freedom by being arrested asks for freedom in
	the event of arrest. That is the stage at which it is
	imperative to protect his freedom, in so far as one may, and
	to give full play to the presumption that he is innocent. In
	fact, the stage at which anticipatory bail is generally
	sought brings about its striking dissimilarity with the
	situation in which a person who is arrested for the
	commission of a non-bailable offences asks for bail. In the
	latter situation, adequate data is available to the Court,
	or can be called for by it, in the light of which it can
	grant or refuse relief and while granting it, modify it by
	the imposition of all or any of the conditions mentioned in
	Section 437. [404 A-G]
	10. The amplitude of judicial discretion which is given
	to the High Court and the Court of Sessions, to impose such
	conditions as they may think fit while granting anticipatory
	bail, should not be cut down, by a process of construction,
	by reading into the statute conditions which are not to be
	found therein like those evolved by the High Court. The High
	Court and the Court of Session to whom the application for
	anticipatory bail is made ought to be left free in the
	exercise of their judicial discretion to grant bail if they
	consider it fit so to do on the particular facts and
	circumstances of the case and on such conditions as the case
	may warrant. Similarly, they must beleft free to refuse
	bail if the circumstances of the case so warrant, on
	considerations similar to those mentioned in Section 437 or
	which are generally considered to be relevant under Section
	439 of the Code. [405 B-D]
	389
	Generalisations on matters which rest on discretion and
	the attempt to discover formulae of universal application
	when facts are bound to differ from case to case frustrate
	the very purpose of conferring discretion. No two cases are
	alike on facts and therefore, Courtshave to be allowed a
	little free play in the joints if the conferment of
	discretionary power is to be meaningful. There is no risk
	involved in entrusting a wide discretion to the Court of
	Session and the High Court in granting anticipatory bail
	because, firstly these are higher courts manned by
	experienced persons, secondly their order are not final but
	are open to appellate or revisional scrutiny and above all
	because, discretion has always to be exercised by courts
	judicially and not according to whim, caprice or fancy. On
	the other hand, there is a risk in foreclosing categories of
	cases in which anticipatory bail may be allowed because life
	throws up unforeseen possibilities and offers new
	challenges. Judicial discretion has to be free enough to be
	able to take these possibilities in its stride and to meet
	these challenges. [405 D-G]
	Hyman and Anr. v. Rose, 1912 A.C. 623; referred to
	11. 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, this Court cuts
	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 this Court were to
	frame a 'Code for the grant of anticipatorybail', which
	really is the business of the legislature, it can at best
	furnish broad guidelines 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 the
	Courts generally is to preserve their discretion without
	meaning to abuse it. It will be strange if the Court
	exhibits concern to stultify the discretion conferred upon
	the Courts by law. [406 D-H]
	Discretion, therefore, ought to be permitted to remain
	in the domain of discretion, to be exercised objectively and
	open to correction by the higher courts. The safety of
	discretionary power lies in this twin protection which
	provides a safeguard against its abuse. [407 F-G]
	12. It is true that the functions of judiciary and the
	police are in a sense complementary and not overlapping. An
	order of anticipatory bail does not in any way, directly or
	indirectly, take away from the police their right to
	investigate into charges made or to be made against the
	person released on bail. In fact, two of the usual
	conditions incorporated in a direction issued under section
	438(1) are those recommended in Sub-section (2)(i) and (ii)
	which require the applicant to co-operate with the police
	and to assure that he shall not tamper with the witnesses
	during and after the investigation. While granting relief
	under Section 438(1), appropriate conditions can be imposed
	under Section 438(2), so as to ensure an uninterrupted
	investigation. One of
	390
	such conditions can even be that in the event of the police
	making out a case of a likely discovery under Section 27 of
	the Evidence Act, the person released on bail shall be
	liable to be taken in police custody for facilitating the
	discovery. Besides, if and when the occasion arises, it may
	be possible for the prosecution to claim the benefit of
	Section 27 of the Evidence Act in regard to a discovery of
	facts made in pursuance of information supplied by a person
	released on bail. [409 D, 410 A-D]
	King Emperor v. Khwaja Nazir Ahmed, 71 I.A., 203, State
	of U.P. v. Deoman Upadhyaya , [1961] 1 S.C.R. p. 14 @ 26;
	referred to.
	13. In Balchand Jain v. State of Madhya Pradesh, [1977]
	2 SCR 52, this Court was considering whether the provisions
	of Section 438 relating to anticipatory bail stand overruled

	or repealed by virtue of Rule 184 of the Defence and
	Internal Security of India Rules, 1971 or whether both the
	provisions can by rule of harmonious interpretion, exist
	side by side. It was in that context that it was observed
	that "As section 438 immediately follows Section 437 which
	is the main provision for bail in respect of non-bailable
	offences, it is manifest that the conditions imposed by s.
	437(1) are implicitly contained in Section 438 of the Code".
	These observations regarding the nature of the power
	conferred by section 438 and regarding the question whether
	the conditions mentioned in Section 437 should be read into
	section 438 cannot, therefore be treated as the ratio of the
	decision. [413 C-D, E]
	The power conferred by section 438 is of an "extra
	ordinary" character only in the sense that it is not
	ordinarily resorted to like the power conferred by sections
	437 and 439. [413 E-F]
	Bal Chand Jain v. State of M.P., [1977] 2 S.C.R. 52,
	distinguished.
	14. Since denial of bail amounts to deprivation of
	personal liberty, the Court should lean against the
	imposition of unnecessary restrictions on the scope of
	section 438, especially when no such restrictions have been
	imposed by the legislature in the terms of that section.
	Section 438 is a procedural provision which is concerned
	with the personal liberty of the individual, who is entitled
	to the benefit of the presumption of innocence since he is
	not, on the date of his application for anticipatory bail,
	convicted of the offence in respect of which he seeks bail.
	An over-generous infusion of constraints and conditions
	which are not to be found in Section 438 can make its
	provisions constitutionally vulnerable since the right to
	personal freedom cannot be made to depend on compliance with
	unreasonable restrictions. [413 F-H, 414 A]
	Maneka Gandhi v. Union of India, [1978] 1 S.C.C. 248;
	applied.
	15. In regard to anticipatory bail, if the proposed
	accusation appears to stem not from motives of furthering
	the ends of justice but from some ulterior inotive, the
	object being to injure and humiliate the applicant by having
	him arrested a direction for the release of the applicant on
	bail in the event of his arrest would generally, be made. On
	the other hand, if it appears likely considering the
	antecedents of the applicant, that taking advantage of the
	order of anticipatory bail he will flee from justice, such
	an order would not be made. But the converse of these
	propositions is not necessarily true. That is to say it
	cannot be laid down as an inexorable rule that anticipatory
	bail cannot be granted unless theproposed accusation
	appears to be actuated by mala fides;
	391
	and, equally, that anticipatory bail must be granted if
	there is no fear that the applicant will abscond. There are
	several other considerations, too numerous to enumerate the
	combined effect of which must weigh with the court while
	granting or rejecting anticipatory bail. The nature and
	seriousness of the proposed charges, the context of the

	events likely to lead to the making of the charges, a
	reasonable possibility of the applicant's presence not being
	secured at the trial, a reasonable apprehension that
	witnesses will be tampered with and "the larger interests of
	the public or the state" are some of the considerations
	which the court has to keep in mind while deciding an
	application for anticipatory bail. [415 G-H, 416 A-C]
	State v. Captain Jagjit Singh, [1962] 3 S.C.R. 622,
	followed.
	JUDGMENT:
	CRIMINAL APPELLATE JURISDICTION: Criminal Appeals Nos. 335, 336, 337, 338, 339,
	346, 347, 350, 351, 352, 365, 366, 367, 383, 396, 397, 398, 399, 406, 415, 416, 417, 418, 419,
	420, 430, 431, 438, 439, 440, 447, 448, 449, 463, 473, 474, 477, 498, 506, 508, 512, 511 of
	1977, 1, 15, 16, 38, 53, 69, 70 of 1978, 469, 499 of 1977, 40, 41, 81, 82, 98, 109, 130, 141, 142,
	145, 149, 153 and 154 of 1978.
	AND Special Leave Petitions (Criminal) Nos. 260, 272, 273, 274, 383, 388 & 479 of 1978.
	Appeals by Special leave from the Judgments and Orders dated 13-9-77, 13-9-77, 13-9-77, 15-9-
	77, 13-9-77, 21-9-77, 19-9-77, 23-9-77, 23-9-77, 23-9-77, 26-9-77, 26-9-77, 30-9- 77, 7-10-77,
	16-9-77 9-9-77, 20-9-77, 5-10-77, 20-10-77, 26- 9-77, 20-10-77, 20-10-77, 19-10-77, 24-10-77,
	25-10-77, 14- 9-77, 24-10-77, 2-11-77, 2-11-77, 3-11-77, 2-9-77, 7-9-77, 2-9-77, 9-11-77, 22-
	11-77, 23-11-77, 24-11-77, 13-12-77, 11- 11-77, 23-11-77, 14-12-77, 13-12-77, 20-12-77, 3-1-
	78, 4-1- 78, 5-1-78, 16-1-78, 18-1-78, 30-1-78, 25-1-78, 18-11-77, 13-12-77, 10-1-78, 13-1-78,
	1-2-78, 1-2-78, 8-2-78, 21-12- 77, 1-3-78, 3-3-78, 3-3-78, 10-3-78, 8-3-78, 20-3-78, 17-3- 78,
	15-2-78, 17-2-78, 17-2-78, 24-1-78, 14-3-78, 14-3-78 and 27-3-78 of the Punjab and Haryana
	High Court in Crl. Misc. Nos. 3753 M, 3719 M, 3720 M, 3916 M, 3718 M, 3793 M, 3565 M,
	3892 M, 3595 M, 3596 M, 4359 M, 3563 M, 3484 M, 4627 M, 3893 M, 3894 M, 3587 M, 4540
	M, 4908 M, 3031 M, 4934 M, 4916 M, 4888 M, 4964 M, 4992 M, 3688 M, 4907 M, 5176 M,
	5177 M, 5197 M, 3564 M, 3716 M, 3717 M, 5344 M, 5558 M, 5079 M, 5613 M, 5905 M, 5254
	M, 5253 M, 5919 M, 5907 M, 6005 M of 1977, 45 M, 68 M, 102 M, 246 M of 1978, 6114 M of
	1977, 462 M, 248 M of 1978, 5240 M, 5892 M of 1977, 19/78, 956/77, 104 M/78, 104 M/78,
	605/78, 5995 M/77, 941 M/78, 904 M/78, 1005 M/78, 1137 M/78, 819 M/78, 1260 M/78, 866
	M/78 & 541 M/78, 4897 M/77, 4758 M/77, 364 M/78, 1167/78, 1168 M/78 and 1381 M/78.
	M. C. Bhandare, Gobind Das, K. S. Thapar, Dilip Singh, Mrs. Sunanda Bhandare, A. N.
	Karkhanis, Deepak Thapar and Miss Malini for the Appellants in Crl. A. Nos. 335, 365, 430,
	431, 506, 508, 499/77, 150, 141, 142, 153, 154 and for the Petitioners in SLPs 272-274 of 1978.
	Frank Anthony, V. C. Mahajan, O. P. Sharma and R. C. Bhatia for the Appellants in Crl. A. Nos.
	336, 337, 338, 350, 396, 397-399, 473, 474/77 and 1, 15, 16, 17, 69, 70, 81, 82, 98 and 149 and
	109 of 1978.
	Harjinder Singh for the Appellant in Crl. A. 339 of 1977.

	B. S. Bindra, S. M. Ashri and Mrs. Lakshmi Arvind for the Appellants in Crl. As. Nos. 348, 366,
	415, 420, 477, 511, 512, 469/77 and 145 of 1978.
	P. R. Mridul, H. K. Puri, Aruneshwar Prasad and Vivek Sethi for the Appellant in Crl. A No. 346
	of 1977.
	L. N. Sinha, R. P. Singh, L. R. Singh, Suman Kapoor, Sukumar Sahu and M. C. Bhandare, P. P.
	Singh and R. K. Jain for the Appellants in Crl. A. Nos. 351, 352, 406, 438-40, 463/77.
	S. K. Jain for the Appellant in Crl. A. No. 53/78. V. M. Tarkunde, M. M. L. Srivastava, R. Satish
	and E. C. Agrawala for the Appellant in Crl. A. Nos. 367/77 and SLP 383/78.
	V. C. Mahajan, Harbhagwan Singh, S. K. Mehta, K. R. Nagaraja and P. N. Puri for the Appellant
	in Crl. A. Nos. 383/78 and 498/77.
	K. K. Mohan for the Petitioner in SLP 260/78. A. K. Sen and Rathin Dass for the Appellant in
	Crl. A. Nos. 40, 41/78.
	M. M. L. Srivastava for the Petitioner in SLP 388/78. L. M. Singhvi and N. S. Das Behl for the
	Appellants in Crl. A. No. 38/78 and for the Petitioner in SLP 479/78.
	Soli. J. Sorabjee, Addl. Sol. Genl. Bishamber Lal Khanna, Hardev Singh, R. S. Sodhi and B. B.
	Singh for the Appellants in Crl. As. Nos. 477-449/77 and respondents in Crl. A. Nos. 335-
	339,347,350, 352,366,367,388,396-398,406, 415-420,438-440,463,473,474,477, 498, 511/77, 1,
	15-17/78, 469, 510/77, 109/78 and for the Petitioners in SLP Nos. 388/78, Crl. A. No. 98/78 &
	SLP 260/78.
	Soli. J. Sorabjee Addl. Sol. Genl., Thakur Naubat Singh Adv. Genl. Haryana, S. N. Anand and R.
	N. Sachthey for the Respondents, in Crl. A. Nos. 365, 430, & 431/77, 508, 499/78 and 38, 141
	and 142/78.
	M. M. Kshatriya and G. S. Chatterjee for Respondents in Crl. A. Nos. 40 and 41 of 1978.
	M. M. Kshatriya and G. S. Chatterjee for Respondents in Crl. A. 346/77.
	J. K. Gupta, B. R. Agarwala and Janendra Lal for the Vice-Chancellor, Punjab University in Crl.
	A. No. 346/77.
	The Judgment of the Court was delivered by CHANDRACHUD, C.J.-These appeals by Special
	Leave involve a question of great public importance bearing, at once, on personal liberty and the
	investigational powers of the police. The society has a vital stake in both of these interests,
	though their relative importance at any given time depends upon the complexion and restraints of
	political conditions. Our task in these appeals in how best to balance these interests while
	determining the scope of Section 438 of the Code of Criminal Procedure, 1973 (Act No. 2 of
	1974).

	Section 438 provides for the issuance of direction for the grant of bail to a person who
	apprehends arrest. It reads thus:
	"438. (1) When any person has reason to believe that he may be arrested on an accusation of
	having committed a non-bailable offence, he may apply to the High Court or the Court of
	Session for a direction under this section; and that Court may, if it thinks fit, direct that in the
	event of such arrest, he shall be released on bail.
	(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
	think fit, including-
	(i) a condition that the person shall make himself available for interrogation by a police officer as
	and when required;
	(ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or
	promise to any person acquainted with the facts of the case so as to dissuade him from disclosing
	such facts to the Court or to any police officer;
	(iii) a condition that the person shall not leave India without the previous permission of the
	Court;
	(iv) such other condition as may be imposed under sub-section (3) of section 437, as if the bail
	were granted under that section. (3) If such person is thereafter arrested without warrant by an
	officer in charge of a police station on such accusation, and is prepared either at the time of arrest
	or at any time while in the custody of such officer to give bail, he shall be released on bail; and if
	a Magistrate taking cognizance of such offence decides that a warrant should 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)."
	Criminal Appeal No. 335 of 1975 which is the first of the many appeals before us, arises out of a
	judgment dated September 13, 1977 of a Full Bench of the High Court of Punjab and Haryana.
	The appellant herein, Shri Gurbaksh Singh Sibbia, was a Minister of Irrigation and Power in the
	Congress Ministry of the Government of Punjab. Grave allegations of political corruption were
	made against him and others whereupon, applications were filed in the High Court of Punjab and
	Haryana under Section 438, praying that the appellants be directed to be released on bail, in the
	event of their arrest on the aforesaid charges. Considering the importance of the matter, a learned
	Single Judge referred the applications to a Full Bench, which by its judgment dated September
	13, 1977 dismissed them.
	The Code of Criminal Procedure, 1898 did not contain any specific provision corresponding to
	the present Section
	438. Under the old Code, there was a sharp difference of opinion amongst the various High
	Courts on the question as to whether courts had the inherent power to pass an order of bail in
	anticipation of arrest, the preponderance of view being that it did not have such power. The need
	for extensive amendments to the Code of Criminal Procedure was felt for a long time and various
	suggestions were made in different quarters in order to make the Code more effective and
	comprehensive. The Law Commission of India, in its 41st Report dated September 24, 1969
	pointed out the necessity of introducing a provision in the Code en-

	abling the High Court and the Court of Session to grant "anticipatory bail". It observed in
	paragraph 39.9 of its report (Volume I):
	"39.9. The suggestion for directing the release of a person on bail prior to his arrest (commonly
	known as "anticipatory bail") was carefully considered by us. Though there is a conflict of
	judicial opinion about the power of a Court to grant anticipatory bail, the majority view is that
	there is no such power under the existing provisions of the Code. The necessity for granting
	anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals
	in false 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.
	We recommend the acceptance of this suggestion. We are further of the view that this special
	power should be conferred only on the High Court and the Court of Session, and that the order
	should take effect at the time of arrest or thereafter.
	In order to settle the details of this suggestion, the following draft of a new section is placed for
	consideration:
	"497A. (1) When any person has a reasonable apprehension that he would be arrested on an
	accusation of having committed a non-bailable offence, he may apply to the High Court or the
	Court of Session for a direction under this section. That Court may, in its discretion, direct that in
	the event of his arrest, he shall be released on bail.
	(2) A Magistrate taking cognizance of an offence against that person shall, while taking steps
	under section 204(1), either issue summons or a bailable warrant as indicated in the direction of
	the Court under sub-section (1).
	(3) if any person in respect of whom such a direction is made is arrested without warrant by an
	officer in charge of a police station on an accusation of having com-
	mitted that offence, and is prepared either at the time of arrest or at any time while in the custody
	of such officer to give bail, such person shall be released on bail."
	We considered carefully the question of laying down in the statute certain conditions under
	which alone anticipatory bail could be granted. But we found that it may not be practicable to
	exhaustively enumerate those conditions; and moreover, the laying down of such conditions may
	be construed as prejudging (partially at any rate) the whole case. Hence we would leave it to the
	discretion of the court and prefer not to fetter such discretion in the statutory provision itself.
	Superior Courts will, undoubtedly, exercise their discretion properly, and not make any
	observations in the order granting anticipatory bail which will have a tendency to prejudice the
	fair trial of the accused."
	The suggestion made by the Law Commission was, in principle, accepted by the Central
	Government which introduced Clause 447 in the Draft Bill of the Code of Criminal Procedure,
	1970 with a view to conferring an express power on the High Court and the Court of Session to
	grant anticipatory bail. That Clause read thus:
	"447. (1) When any person has reason to believe that he would be arrested on an accusation of
	having committed a non-bailable offence, he may apply to the High Court or the Court of

	Session for a direction under this section; and that Court may, if it thinks fit, direct that in the
	event of such arrest, he shall be released on bail.
	(2) 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)."
	The Law Commission, in paragraph 31 of its 48th Report (1972), made the following comments
	on the aforesaid Clause.
	"31. 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."
	Clause 447 of the Draft Bill of 1970 was enacted with certain modifications and became Section
	438 of the Code of Criminal Procedure, 1973 which we have extracted at the outset of this
	judgment.
	The facility which Section 438 affords is generally referred to as 'anticipatory bail', an expression
	which was used by the Law Commission in its 41st report. Neither the section nor its marginal
	note so describes it but, the expression 'anticipatory bail' is a convenient mode of conveying that
	it is possible to apply for bail in anticipation of arrest. Any order of bail can, of course, be
	effective only from the time of arrest because, to grant bail, as stated in Wharton's Law Lexicon,
	is to 'set at liberty a person arrested or imprisoned, on security being taken for his appearance'.
	Thus, bail is basically release from restraint, more particularly, release from the custody of the
	police. The act of arrest directly affects freedom of movement of the person arrested by the
	police, and speaking generally, an order of bail gives back to the accused that freedom on
	condition that he will appear to take his trial. Personal recognisance, suretyship bonds and such
	other modalities are the means by which an assurance is secured from the accused that though he
	has been released on bail, he will present himself at the trial of offence or offences of which he is
	charged and for which he was arrested. The distinction between an ordinary order of bail and an
	order of anticipatory bail is that whereas the former is granted after arrest and therefore means
	release from the custody of the police, the latter is granted in anticipation of arrest and is
	therefore effective at the very moment of arrest. Police custody is an inevitable concomitant of
	arrest for non-bailable offences. An order of anticipatory bail constitutes, so to say, an insurance
	against police custody following upon arrest for offence or offences in respect of which the order
	is issued. In other words, unlike a post-arrest order of bail, it is a pre-arrest legal process which

	directs that if the person in whose favour it is issued is thereafter arrested on the accusation in
	respect of which the direction is issued, he shall be released on bail. Section 46(1) of the Code of
	Criminal Procedure which deals with how arrests are to be made, provides that in making the
	arrest, the police officer or other person making the arrest "shall actually touch or confine the
	body of the person to be arrested, unless there be a submission to the custody by word or action".
	A direction under section 438 is intended to confer conditional immunity from this 'touch' or
	confinement.
	No one can accuse the police of possessing a healing touch nor indeed does anyone have
	misgivings in regard to constraints consequent upon confinement in police custody. But, society
	has come to accept and acquiesce in all that follows upon a police arrest with a certain amount of
	sangfroid, in so far as the ordinary rut of criminal investigation is concerned. It is the normal
	day-to-day business of the police to investigate into charges brought before them and, broadly
	and generally, they have nothing to gain, not favours at any rate, by subjecting ordinary criminals
	to needless harassment. But the crimes, the criminals and even the complainants can occasionally
	possess extra-ordinary features. When the even flow of life becomes turbid, the police can be
	called upon to inquire into charges arising out of political antagonism. The powerful processes of
	criminal law can then be perverted for achieving extraneous ends. Attendant upon such
	investigations, when the police are not free agents within their sphere of duty, is a great amount
	of inconvenience, harassment and humiliation. That can even take the form of the parading of a
	respectable person in handcuffs, apparently on way to a court of justice. The foul deed is done
	when an adversary is exposed to social ridicule and obloquy, no matter when and whether a
	conviction is secured or is at all possible. It is in order to meet such situations, though not limited
	to these contingencies, that the power to grant anticipatory bail was introduced into the Code of
	1973.
	Are we right in saying that the power conferred by section 438 to grant anticipatory bail is "not
	limited to these contingencies"? In fact that is one of the main points of controversy between the
	parties. Whereas it is argued by Shri M. C. Bhandare, Shri O. P. Sharma and the other learned
	counsel who appear for the appellants that the power to grant anticipatory bail ought to be left to
	the discretion of the court concerned, depending on the facts and circumstances of each
	particular case, it is argued by the learned Additional Solicitor General on behalf of the State
	Government that the grant of anticipatory bail should at least be conditional upon the applicant
	showing that he is likely to be arrested for an ulterior motive, that is to say, that the proposed
	charge or charges are evidently baseless and are actuated by mala fides. It is argued that
	anticipatory bail is an extra-ordinary remedy and therefore, whenever it appears that the
	proposed accusations are prima facie plausible, the applicant should be left to the ordinary
	remedy of applying for bail under Section 437 or Section 439, Criminal Procedure Code, after he
	is arrested.
	Shri V. M. Tarkunde, appearing on behalf of some of the appellants, while supporting the
	contentions of the other appellants, said that since the denial of bail amounts to deprivation of
	personal liberty, court should lean against the imposition of unnecessary restrictions on the scope
	of Section 438, when no such restrictions are imposed by the legislature in the terms of that
	Section. The learned counsel added a new dimension to the argument by invoking Article 21 of
	the Constitution. He urged that Section 438 is a procedural provision which is concerned with the

	personal liberty of an individual who has not been convicted of the offence in respect of which
	he seeks bail and who must therefore be presumed to be innocent. 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
	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.
	The Full Bench of the Punjab and Haryana High Court rejected the appellants' applications for
	bail after summarising, what according to it is the true legal position, thus:
	(1) The power under Section 438, Criminal Procedure Code, is of an extra-ordinary character and
	must be exercised sparingly in exceptional cases only;
	(2) Neither Section 438 nor any other provision of the Code authorises the grant of blanket
	anticipatory bail for offences not yet committed or with regard to accusations not so far levelled.
	(3) The said power is not unguided or uncanalised but all the limitations imposed in the
	preceding Section 437 , are implicit therein and must be read into Section 438.
	(4) In addition to the limitations mentioned in Section 437, the petitioner must make out a special
	case for the exercise of the power to grant anticipatory bail.
	(5) Where a legitimate case for the remand of the offender to the police custody under Section
	167 (2) can be made out by the investigating agency or a reasonable claim to secure
	incriminating material from information likely to be received from the offender under Section 27
	of the Evidence Act can be made out, the power under Section 438 should not be exercised.
	(6) The discretion under Section 438 cannot be exercised with regard to offences punishable with
	death or imprisonment for life unless the court at that very stage is satisfied that such a charge
	appears to be false or groundless.
	(7) The larger interest of the public and State demand that in serious cases like economic
	offences involving blatant corruption at the higher rungs of the executive and political power, the
	discretion under Section 438 of the Code should not be exercised; and (8) Mere general
	allegation of mala fides in the petition are inadequate. The court must be satisfied on materials
	before it that the allegations of mala fides are substantial and the accusation appears to be false
	and groundless.
	It was urged before the Full Bench that the appellants were men of substance and position who
	were hardly likely to abscond and would be prepared willingly to face trial. This argument was
	rejected with the observation that to accord differential treatment to the appellants on account of
	their status will amount to negation of the concept of equality before the law and that it could
	hardly be contended that every man of status, who was intended to be charged with serious
	crimes, including the one under Section 409 which was punishable with life imprisonment, "was
	entitled to knock at the door of the court for anticipatory bail". The possession of high status,
	according to the Full Bench, is not only an irrelevant consideration for granting anticipatory bail
	but is, if anything, an aggravating circumstance.

	We find ourselves unable to accept, in their totality, the submissions of the learned Additional
	Solicitor General or the constraints which the Full Bench of the High Court has engrafted on the
	power conferred by Section 438. 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 provisions 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. Though the right to
	apply for anticipatory bail was conferred for the first time by Section 438, while enacting that
	provision the legislature was not writing on a clean slate in the sense of taking an unprecedented
	step, in so far as the right to apply for bail is concerned. It had before it two cognate provisions
	of the Code: Section 437 which deals with the power of courts other than the Court of Session
	and the High Court to grant bail in non-bailable cases and Section 439 which deals with the
	"special powers" of the High Court and the Court of Session regarding bail. The whole of
	Section 437 is riddled and hedged in by restrictions on the power of certain courts to grant bail.
	That section reads thus :
	"437. When bail may be taken in case of non- bailable offence. (1) When any person accused of
	or suspected of the commission of any non-bailable offence is arrested or detained without
	warrant by an officer in charge of a police station or appears or is brought before a Court other
	than the High Court or Court of Session, he may be released on bail, but he shall not be so
	released if there appear reasonable grounds for believing that he has been guilty of an offence
	punishable with death or imprisonment for life : Provided that the Court may direct that any
	person under the age of sixteen years or any woman or any sick or infirm person accused of such
	an offence be released on bail :
	Provided further that the mere fact that an accused person may be required for being identified
	by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is
	otherwise entitled to be released on bail and gives an undertaking that he shall comply with such
	directions as may be given by the Court.
	(2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial as the
	case may be, that there are not reasonable grounds for believing that the accused has committed a
	non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, the
	accused shall, pending such inquiry, be released on bail, or, at the discretion of such officer or
	Court, on the execution by him of a bond without sureties for his appearance as hereinafter
	provided.
	(3) When a person accused or suspected of the commission of an offence punishable with
	imprisonment which may extend to seven years or more or of an offence under Chapter VI,
	Chapter XVI or Chapter XVII of the Indian Penal Code or abetment of, or conspiracy or attempt
	to commit, any such offence, is released on bail under sub-section (1), the Court may impose any
	condition which the Court considers necessary-
	(a) in order to ensure that such person shall attend in accordance with the conditions of the bond
	executed under this Chapter, or
	(b) in order to ensure that such person shall not commit an offence similar to the offence of
	which he is accused or of the commission of which he is suspected, or

	(c) otherwise in the interests of justice. (4) An officer or a Court releasing any person on bail
	under sub-section (1) or sub-section (2), shall record in writing his or its reasons for so doing. (5)
	Any Court which has released a person on bail under sub-section (1) or sub-section (2), may, if it
	considers it necessary so to do, direct that such person be arrested and commit him to custody.
	(6) If, in any case triable by a Magistrate, the trial of a person accused of any non-bailable
	offence is not concluded within a period of sixty days from the first date fixed for taking
	evidence in the case, such person shall, if he is in custody during the whole of the said period, be
	released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing,
	the Magistrate otherwise directs.
	(7) If, at any time after the conclusion of the trial of a person accused of an non-bailable offence
	and before judgment is delivered, the Court is of opinion that there are reasonable grounds for
	believing that the accused is not guilty of any such offence, it shall release the accused, if he is in
	custody, on the execution by him of a bond without sureties for his appearance to hear judgment
	delivered."
	Section 439 (1) (a) incorporates the conditions mentioned in Section 437 (3) if the offence in
	respect of which the bail is sought is of the nature specified in that sub-section. Section 439 reads
	thus :
	"439. Special powers of High Court or Court of Session regarding bail. (1) A High Court or
	Court of Session may direct-
	(a) That any person accused of an offence and in custody be released on bail, and if the offence is
	of the nature specified in sub-section (3) of section 437, may impose any condition which it
	considers necessary for the purposes mentioned in that sub-section;
	(b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or
	modified :
	Provided that the High Court or the Court of Session shall, before granting bail to a person who
	is accused of an offence which is triable exclusively by the Court of Session or which, though
	not so triable, is punishable with imprisonment for life, give notice of the application for bail to
	the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not
	practicable to give notice. (2) A High Court or Court of Session may direct that any person who
	has been released on bail under this Chapter be arrested and commit him to custody."
	The provisions of Section 437 and 439 furnished a convenient model for the legislature to copy
	while enacting Section 438. If it has not done so and has departed from a pattern which could
	easily be adopted with the necessary modifications, it would be wrong to refuse to give to the
	departure its full effect by assuming that it was not intended to serve any particular or specific
	purpose. The departure, in our opinion, was made advisedly and purposefully : Advisedly, at
	least in part, because of the 41st Report of the Law Commission which, while pointing out the
	necessity of introducing a provision in the Code enabling the High Court and the Court of
	Session to grant anticipatory bail, said in paragraph 29.9 that it had "considered" carefully the
	question of laying down in the statute certain conditions under which alone anticipatory bail
	could be granted" but had come to the conclusion that the question of granting such bail should
	be left "to the discretion of the court" and ought not to be fettered by the statutory provision
	itself, since the discretion was being conferred upon superior courts which were expected to
	exercise it judicially. The legislature conferred a wide discretion on the High Court and the Court

	of Session to grant anticipatory bail because it evidently felt, firstly, that it would be difficult to
	enumerate the conditions under which anticipatory bail should or should not be granted and
	secondly, because the intention was to allow the higher courts in the echelon a somewhat free
	hand in the grant of relief in the nature of anticipatory bail. That is why, departing from the terms
	of Sections 437 and 439, Section 438(1) uses the language that the High Court or the Court of
	Session "may, if it thinks fit" direct that the applicant be released on bail. Sub-section (2) of
	Section 438 is a further and clearer manifestation of the same legislative intent to confer a wide
	discretionary power to grant anticipatory bail. It provides that the High Court or the Court of
	Session, while issuing a direction for the grant of anticipatory bail, "may include such conditions
	in such directions in the light of the facts of the particular case, as it may think fit", including the
	conditions which are set out in clauses (i) to (iv) of sub-section (2). The proof of legislative
	intent can best be found in the language which the legislature uses. Ambiguities can undoubtedly
	be resolved by resort to extraneous aids but words, as wide and explicit as have been used in
	Section 438, must be given their full effect, especially when to refuse to do so will result in
	undue impairement of the freedom of the individual and the presumption of innocence. It has to
	be borne in mind that anticipatory bail is sought when there is a mere apprehension of arrest on
	the accusation that the applicant has committed a non-bailable offence. A person who has yet to
	lose his freedom by being arrested asks for freedom in the event of arrest. That is the stage at
	which it is imperative to protect his freedom, in so far as one may, and to give full play to the
	presumption that he is innocent. In fact, the stage at which anticipatory bail is generally sought
	brings about its striking dissimilarity with the situation in which a person who is arrested for the
	commission of a non-bailable offence asks for bail. In the latter situation, adequate data is
	available to the Court, or can be called for by it, in the light of which it can grant or refuse relief
	and while granting it, modify it by the imposition of all or any of the conditions mentioned in
	Section 437.
	This is not to say that anticipatory bail, if granted, must be granted without the imposition of any
	conditions. That will be plainly contrary to the very terms of Section
	438. Though sub-section (1) of that section says that the Court "may, if it thinks fit" issue the
	necessary direction for bail, sub-section (2) confers on the Court the power to include such
	conditions in the direction as it may think fit in the light of the facts of the particular case,
	including the conditions mentioned in clauses (i) to (iv) of that sub-section. The controversy
	therefore is not whether the Court has the power to impose conditions while granting anticipatory
	bail. It clearly and expressly has that power. The true question is whether by a process of
	construction, the amplitude of judicial discretion which is given to the High Court and the Court
	of Session, to impose such conditions as they may think fit while granting anticipatory bail,
	should be cut down by reading into the statute condition which are not to be found therein, like
	those evolved by the High Court or canvassed by the learned Additional Solicitor General. Our
	answer, clearly and emphatically, is in the negative. The High Court and the Court of Session to
	whom the application for anticipatory bail is made ought to be left free in the exercise of their
	judicial discretion to grant bail if they consider it fit so to do on the particular facts and
	circumstances of the case and on such conditions as the case may warrant. Similarly, they must
	be left free to refuse bail if the circumstances of the case so warrant, on considerations similar to
	those mentioned in Section 437 or which are generally considered to be relevant under Section
	439 of the Code.

	Generalisations on matters which rest on discretion and the attempt to discover formulae of
	universal application when facts are bound to differ from case to case frustrate the very purpose
	of conferring discretion. No two cases are alike on facts and therefore, Courts have to be allowed
	a little free play in the joints if the conferment of discretionary power is to be meaningful. There
	is no risk involved in entrusting a wide discretion to the Court of Session and the High Court in
	granting anticipatory bail because, firstly, these are higher courts manned by experienced
	persons, secondly, their orders are not final but are open to appellate or revisional scrutiny and
	above all because, discretion has always to be exercised by courts judicially and not according to
	whim, caprice or fancy. On the other hand, there is a risk in foreclosing categories of cases in
	which anticipatory bail may be allowed because life throws up unforeseen possibilities and offers
	new challenges. Judicial discretion has to be free enough to be able to take these possibilities in
	its stride and to meet these challenges. While dealing with the necessity for preserving judicial
	discretion unhampered by rules of general application, Earl Loreburn L. C. said in Hyman and
	Anr. v. Rose :
	"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 express 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 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."
	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.

	A close look at some of the rules in the eight-point code formulated by he High Court will show
	how difficult it is to apply them in practice. The seventh proposition says :
	"The larger interest of the public and State demand that in serious cases like economic offences
	involving blatant corruption at the higher rungs of the executive and political power, the
	discretion under Section 438 of the Code should not be exercised."
	How can the Court, even if it had a third eye, assess the blatantness of corruption at the stage of
	anticipatory bail ? And will it be correct to say that blatantness of the accusation will suffice for
	rejecting bail, even if the applicant's conduct is painted in colours too lurid to be true ? The
	eighth proposition rule framed by the High Court says :
	"Mere general allegations of mala fides in the petition are inadequate. The court must be satisfied
	on materials before it that the allegations of mala fide are substantial and the accusation appears
	to be false and groundless."
	Does this rule mean, and that is the argument of the learned Additional Solicitor-General, that
	the anticipatory bail cannot be granted unless it is alleged (and naturally, also shown, because
	mere allegation is never enough) that the proposed accusations are mala fide ? It is
	understandable that if mala fides are shown anticipatory bail should be granted in the generality
	of cases. But it is not easy to appreciate why an application for anticipatory bail must be rejected
	unless the accusation is shown to be mala fide. This, truly, is the risk involved in framing rules
	by judicial construction. Discretion, therefore, ought to be permitted to remain in the domain of
	discretion, to be exercised objectively and open to correction by the higher courts. The safety of
	discretionary power lies in this twin protection which provides a safeguard against its abuse.
	According to the sixth proposition framed by the High Court, the discretion under Section 438
	cannot be exercised in regard to offences punishable with death or imprisonment for life unless,
	the court at the stage of granting anticipatory bail, is satisfied that such a charge appears to be
	false or groundless. Now, Section 438 confers on the High Court and the Court of Session the
	power to grant anticipatory bail if the applicant has reason to believe that he may be arrested on
	an accusation of having committed "a non-bailable offence". We see no warrant for reading into
	this provision the conditions subject to which bail can be granted under Section 437(1) of the
	Code. That section, while conferring the power to grant bail in cases of non-bailable offences,
	provides by way of an exception that a person accused or suspected of the commission of a non-
	bailable offence "shall not be so released" if there appear to be reasonable grounds for believing
	that he has been guilty of an offence punishable with death or imprisonment for life. If it was
	intended that the exception contained in Section 437(1) should govern the grant of relief under
	Section 438(1), nothing would have been easier for the legislature than to introduce into the latter
	section a similar provision. We have already pointed out the basic distinction between these two
	sections. Section 437 applies only after a person, who is alleged to have committed a non-
	bailable offence, is arrested or detained without warrant or appears or is brought before a court.
	Section 438 applies before the arrest is made and, in fact, one of the pre-conditions of its
	application is that the person, who applies for relief under it, must be able to show that he has
	reason to believe that "he may be arrested", which plainly means that he is not yet arrested. The
	nexus which this distinction bears with the grant or refusal of bail is that in cases falling under

	Section 437, there is some concrete data on the basis of which it is possible to show that there
	appear to be reasonable grounds for believing that the applicant has been guilty of an offence
	punishable with death or imprisonment for life. In cases falling under Section 438 that stage is
	still to arrive and, in the generality of cases thereunder, it would be premature and indeed
	difficult to predicate that there are or are not reasonable grounds for so believing. The foundation
	of the belief spoken of in Section 437(1), by reason of which the court cannot release the
	applicant on bail is, normally, the credibility of the allegations contained in the First Information
	Report. In the majority of cases falling under Section 438, that data will be lacking for forming
	the requisite belief. If at all the conditions mentioned in Section 437 are to be read into the
	provisions of Section 438, the transplantation shall have to be done without amputation. That is
	to say, on the reasoning of the High Court, Section 438(1) shall have to be read as containing the
	clause that the applicant "shall not" be released on bail "if there appear reasonable grounds for
	believing that he has been guilty of an offence punishable with death or imprisonment for life".
	In this process one shall have overlooked that whereas, the power under Section 438(1) can be
	exercised if the High Court or the Court of Session "thinks fits to do so, Section 437(1) does not
	confer the power to grant bail in the same wide terms. The expression "if it thinks fit", which
	occurs in Section 438(1) in relation to the power of the High Court or the Court of Session, is
	conspicuously absent in Section 437(1). We see no valid reason for re-writing Section 438 with a
	view, not to expanding 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 ancipatory 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.
	A great deal has been said by the High Court on the fifth proposition framed by it, according to
	which, inter alia, the power under Section 438 should not be exercised if the investigating agency
	can make a reasonable claim that it can secure incriminating material from information likely to
	be received from the offender under Section 27 of the Evidence Act. According to the High
	Court, it is the right and the duty of the police to investigate into offences brought to their notice
	and therefore, courts should be careful not to exercise their powers in a manner which is
	calculated to cause interference therewith. It is true that the functions of the Judiciary and the
	police are in a sense complementary and not overlapping. And, as observed by the Privy Council
	in King Emperor v. Khwaja Nasir Ahmed :
	"Just as it is essential that every one accused of a crime should have free access to a court of
	justice so that he may be duly acquitted if found not guilty of the offence with which he is
	charged, so it is of the utmost importance that the judiciary should not interfere with the police in
	matters which are within their province and into which the law imposes on them the duty of
	inquiry. The functions of the Judiciary and the Police are complementary, not overlapping, and
	the combination of the individual liberty with a due observance of law and order is only to be
	obtained by leaving each to exercise its own function...."
	But, these remarks, may it be remembered, were made by the Privy Council while rejecting the
	view of the Lahore High Court that it had inherent jurisdiction under the old Section 561A,

	Criminal Procedure Code, to quash all proceedings taken by the police in pursuance of two First
	Information Reports made to them. An order quashing such proceedings puts an end to the
	proceedings with the inevitable result that all investigation into the accusation comes to a halt.
	Therefore, it was held that the Court cannot, in the exercise of its inherent powers, virtually
	direct that the police shall not investigate into the charges contained in the F.I.R. We are
	concerned here with a situation of an altogether different kind. An order of anticipatory bail does
	not in any way, directly or indirectly, take away from the police their right to investigate into
	charges made or to be made against the person released on bail. In fact, two of the usual
	conditions incorporated in a direction issued under Section 438 (1) are those recommended in
	Sub-section (2) (i) and
	(ii) which require the applicant to co-operate with the police and to assure that he shall not
	tamper with the witnesses during and after the investigation. While granting relief under Section
	438 (1), appropriate conditions can be imposed under Section 438 (2) so as to ensure an
	uninterrupted investigation. One of such conditions can even be that in the event of the police
	making out a case of a likely discovery under Section 27 of the Evidence Act, the person
	released on bail shall be liable to be taken in police custody for facilitating the discovery.
	Besides, if and when the occasion arises, it may be possible for the prosecution to claim the
	benefit of Section 27 of the Evidence Act in regard to a discovery of facts made in pursuance of
	information supplied by a person released on bail by invoking the principle stated by this Court
	in State of U.P. v. Deoman Upadhyaya to the effect that when a person not in custody
	approaches a police officer investigating an offence and offers to give information leading to the
	discovery of a fact, having a bearing on the charge which may be made against him, he may
	appropriately be deemed to have surrendered himself to the police. The broad foundation of this
	rule is stated to be that Section 46 of the Code of Criminal Procedure does not contemplate any
	formality before a person can be said to be taken in custody: submission to the custody by word
	or action by a person is sufficient. For similar reasons, we are unable to agree that anticipatory
	bail should be refused if a legitimate case for the remand of the offender to the police custody
	under Section 167 (2) of the Code is made out by the investigating agency.
	It is unnecessary to consider the third proposition of the High Court in any great details because
	we have already indicated that there is no justification for reading into Section 438 the
	limitations mentioned in Section 437. The High Court says that such limitations are implicit in
	Section 438 but, with respect, no such implications arise or can be read into that section. The
	plenitudes of the section must be given its full play.
	The High Court says in its fourth proposition that in addition to the limitations mentioned in
	Section 437, the petitioner 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 to a dead
	letter. In its anxiety, otherwise just, to show that the power conferred by Section 438 is not
	"unguided or uncanalised", the High Court has subjected that power to a restraint which will
	have the effect of making the power utterly unguided. To say that the applicant must make out a
	"special case" for the exercise of the power to grant anticipatory bail is really to say nothing. The
	applicant has undoubtedly to make out a case for the grant of anticipatory bail. But one cannot go
	further and say that he must make out a "special case". We do not see why the provisions of
	Section 438 should be suspected as containing something volatile or incendiary, which needs to

	be handled with the greatest care and caution imaginable. 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.
	By proposition No. 1 the High Court says that the power conferred by Section 438 is "of an
	extraordinary character and must be exercised sparingly in exceptional cases only". It may
	perhaps be right to describe the power as of an extraordinary character because ordinarily the
	bail is applied for under Section 437 or Section 439. These Sections deal with the power to grant
	or refuse bail to a person who is in the custody of the police and that is the ordinary situation in
	which bail is generally applied for. But this does not justify the conclusion that the power must
	be exercised in exceptional cases only, because it is of an extra-ordinary character. We will
	really be saying once too often that all discretion has to be exercised with care and
	circumspection depending on circumstances justifying its exercise. It is unnecessary to travel
	beyond it and subject the wide power conferred by the legislature to a rigorous code of self-
	imposed limitations.
	It remains only to consider the second proposition formulated by the High Court, which is the
	only one with which we are disposed to agree but we will say more about it a little later.
	It will be appropriate at this stage to refer to a decision of this Court in Balchand Jain v. State of
	Madhya Pradesh on which the High Court has leaned heavily in formulating its propositions.
	One of us, Bhagwati J. who spoke for himself and A. C. Gupta, J. observed in that case that:
	"the power of granting 'anticipatory bail' is somewhat extraordinary in character and it is only in
	exceptional cases where it appears that a person might be falsely implicated, or a frivolous case
	might be launched against him, or "there are reasonable grounds for holding that a person
	accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail" that
	such power is to be exercised."
	Fazal Ali, J. who delivered a separate judgment of concurrence also observed that:
	"an order for anticipatory bail is an extraordinary remedy available in special cases". and
	proceeded to say:
	"As Section 438 immediately follows s. 437 which is the main provision for bail in respect of
	non- bailable offences, it is manifest that the conditions imposed by s. 437 (1) are implicitly
	contained in s. 438 of the Code. Otherwise the result would be that a person who is accused of
	murder can get away under s. 438 by obtaining an order for anticipatory bail without the
	necessity of proving that there were reasonable grounds for believing that he was not guilty of
	offence punishable with death or imprisonment for life. Such a course would render the
	provisions of s. 437 nugatory and will give a free licence to the accused persons charged with
	non-bailable offences to get easy bail by approaching the Court under s. 438 and by-passing s.

	437 of the Code. This, we feel, could never have been the intention of the Legislature. Section
	438 does not contain unguided or uncanalised powers to pass an order for anticipatory bail, but
	such an order being of an exceptional type can only be passed if, apart from the conditions
	mentioned in s. 437, there is a special case made out for passing the order. The words "for a
	direction under this section" and "Court may, if it thinks fit, direct" clearly show that the Court
	has to be guided by a large number of considerations including those mentioned in s. 437 of the
	Code."
	While stating his conclusions Fazal Ali, J. reiterated in conclusion no.3 that "Section 438 of the
	Code is an extraordinary remedy and should be resorted to only in special cases."
	We hold the decision in Balchand Jain (supra) in great respect but it is necessary to remember
	that the question as regards the interpretation of Section 438 did not at all arise in that case. Fazal
	Ali, J. has stated in paragraph 3 of his judgment that "the only point" which arose for
	consideration before the Court was whether the provisions of Section 438 relating to anticipatory
	bail stand overruled and repealed by virtue of Rule 184 of the Defence and Internal Security of
	India Rules, 1971 or whether both the provisions can, by the rule of harmonious interpretation,
	exist side by side. Bhagwati, J. has also stated in his judgment, after adverting to Section 438 that
	Rule 184 is what the Court was concerned with in the appeal. The observations made in
	Balchand Jain (supra) regarding the nature of the power conferred by Section 438 and regarding
	the question whether the conditions mentioned in Section 437 should be read into Section 438
	cannot therefore be treated as concluding the points which arise directly for our consideration.
	We agree, with respect, that the power conferred by Section 438 is of an extraordinary character
	in the sense indicated above, namely, that it is not ordinarily resorted to like the power conferred
	by Sections 437 and
	439. We also agree that the power to grant anticipatory bail should be exercised with due care
	and circumspection but beyond that, it is not possible to agree with the observations made in
	Balchand Jain (supra) in an altogether different context on an altogether different point.
	We find a great deal of substance in Mr. Tarkunde's submission that since denial of bail amounts
	to deprivation of personal liberty, the Court should lean against the imposition of unnecessary
	restrictions on the scope of Section 438, especially when no such restrictions have been imposed
	by the legislature in the terms of that section. Section 438 is a procedural provision which is
	concerned with the personal liberty of the individual, who is entitled to the benefit of the
	presumption of innocence since he is not, on the date of his application for anticipatory bail,
	convicted of the offence in respect of which he seeks bail. An overgenerous infusion of
	constraints and conditions which are not to be found in Section 438 can make its provisions
	constitutionally vulnerable since the right to personal freedom cannot be made to depend on
	com-
	pliance with unreasonable restrictions. The beneficient provision contained in Section 438 must
	be saved, not jettisoned. No doubt can linger after the decision in Maneka Gandhi 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. Section 438, in the form in
	which it is conceived by the legislature, is open to no exception on the ground that it prescribes a

	procedure which is unjust or unfair. We ought, at all costs, to avoid throwing it open to a
	Constitutional challenge by reading words in it which are not be found therein.
	It is not necessary to refer to decisions which deal with the right to ordinary bail because that
	right does not furnish an exact parallel to the right to anticipatory bail. It is, however, interesting
	that as long back as in 1924 it was held by the High Court of Calcutta in Nagendra v. King
	Emperor that the object of bail is to secure the attendance of the accused at the trial, that the
	proper test to be applied in the solution of the question whether bail should be granted or refused
	is whether it is probable that the party will appear to take his trial and that it is indisputable that
	bail is not to be withheld as a punishment. In two other cases which, significantly, are the
	'Meerut Conspiracy cases' observations are to be found regarding the right to bail which observe
	a special mention. In K. N. Joglekar v. Emperor it was observed, while dealing with Section 498
	which corresponds to the present Section 439 of the Code, that it conferred upon the Sessions
	Judge or the High Court wide powers to grant bail which were not handicapped by the
	restrictions in the preceding Section 497 which corresponds to the present Section 437. It was
	observed by the Court that there was no hard and fast rule and no inflexible principle governing
	the exercise of the discretion conferred by Section 498 and that the only principle which was
	established was that the discretion should be exercised judiciously. In Emperor v. H. L.
	Hutchinson it was said that it was very unwise to make an attempt to lay down any particular
	rules which will bind the High Court, having regard to the fact that the legislature itself left the
	discretion of the Court unfettered. According to the High Court, the variety of cases that may
	arise from time to time cannot be safely classified and it is dangerous to make an attempt to
	classify the cases and to say that in particular classes a bail may be granted but not in other
	classes. It was observed that the principle to be deduced from the various sections in the
	Criminal Procedure Code was that grant of bail is the rule and refusal is the exception. An
	accused person who enjoys freedom is in a much better position to look after his case and to
	properly defend himself than if he were in custody. As a presumably innocent person he is
	therefore entitled to freedom and every opportunity to look after his own case. A presumably
	innocent person must have his freedom to enable him to establish his innocence.
	Coming nearer home, it was observed by Krishna Iyer, J., in Gudikanti Narasimhulu v. Public
	Prosecutor, High Court of Andhra Pradesh that "the issue of bail is one of liberty, justice, public
	safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail
	is integral to a socially sensitized judicial process. After all, personal liberty of an accused or
	convict is fundamental, suffering lawful eclipse only in terms of procedure established by law.
	The last four words of Article 21 are the life of that human right."
	In Gurcharan Singh v. State (Delhi Admn.) it was observed by Goswami, J. who spoke for the
	Court, that "there cannot be an inexorable formula in the matter of granting bail. The facts and
	circumstances of each case will govern the exercise of judicial discretion in granting or
	cancelling bail."
	In American Jurisprudence (2d, Volume 8, page 806, para
	39) it is stated:

	"Where the granting of bail lies within the discretion of the court, the granting or denial is
	regulated, to a large extent, by the facts and circumstances of each particular case. Since the
	object of the detention or imprisonment of the accused is to secure his appearance and
	submission to the jurisdiction and the judgment of the court, the primary inquiry is whether a
	recognizance or bond would effect that end."
	It is thus clear that the question whether to grant bail or not depends for its answer upon a variety
	of circumstances, the cumulative effect of which must enter into the judicial verdict. Any one
	single circumstance cannot be treated as of universal validity or as necessarily justifying the
	grant or refusal of bail.
	In regard to anticipatory bail, if the proposed accusation appears to stem not from motives of
	furthering the ends of justice but from some ulterior motive, the object being to injure and
	humiliate the applicant by having him arrested, a direction for the release of the applicant on bail
	in the event of his arrest would generally be made. On the other hand, if it appears likely,
	considering the antecedents of the applicant, that taking advantage of the order of anticipatory
	bail he will flee from justice, such an order would not be made. But the converse of these
	propositions is not necessarily true. That is to say, it cannot be laid down as an inexorable rule
	that anticipatory bail cannot be granted unless the proposed accusation appears to be actuated by
	mala fides; and, equally, that anticipatory bail must be granted if there is no fear that the
	applicant will abscond. There are several other considerations, too numerous to enumerate, the
	combined effect of which must weigh with the court while granting or rejecting anticipatory bail.
	The nature and seriousness of the proposed charges, the context of the events likely to lead to the
	making of the charges, a reasonable possibility of the applicant's presence not being secured at
	the trial, a reasonable apprehension that witnesses will be tampered with and "the larger interests
	of the public or the state" are some of the considerations which the court has to keep in mind
	while deciding an application for anticipatory bail. The relevance of these considerations was
	pointed out in The State v. Captain Jagjit Singh, which, though, was a case under the old Section
	498 which corresponds to the present Section 439 of the Code. It is of paramount consideration
	to remember that the freedom of the individual is as necessary for the survival of the society as it
	is for the egoistic purposes of the individual. A person seeking anticipatory bail is still a free man
	entitled to the presumption of innocence. He is willing to submit to restraints on his freedom, by
	the acceptance of conditions which the court may think fit to impose, in consideration of the
	assurance that if arrested, he shall be enlarged on bail.
	A word of caution may perhaps be necessary in the evaluation of the consideration whether the
	applicant is likely to abscond. There can be no presumption that the wealthy and the mighty will
	submit themselves to trial and that the humble and the poor will run away from the course of
	justice, any more than there can be a presumption that the former are not likely to commit a
	crime and the latter are more likely to commit it. In his charge to the grand jury at Salisbury
	Assizes, 1899 (to which Krishna Iyer, J. has referred in Gudikanti), Lord Russel of Killowen
	said:
	" ............. it was the duty of magistrates to admit accused persons to bail, wherever practicable,
	unless there were strong grounds for supposing that such persons would not appear to take their
	trial. It was not the poorer classes who did not appear, for their circumstances were such as to tie

	them to the place where they carried on their work. They had not the golden wings with which to
	fly from justice."
	This, incidentally, will serve to show how 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.
	This should be the end of the matter, but it is necessary to clarify a few points which have given
	rise to certain misgivings.
	Section 438(1) of the Code lays down a condition which has to be satisfied before anticipatory
	bail can be granted. The applicant must show that he has "reason to believe" that he may be
	arrested for a non-bailable offence. The use of the expression "reason to believe" shows that the
	belief that the applicant may be so arrested must be founded on reasonable grounds. Mere 'fear' is
	not 'belief', for which reason it is not enough for the applicant to show that he has some sort of a
	vague apprehension that some one is going to make an accusation against him, in pursuance of
	which he may be arrested. The grounds on which the belief of the applicant is based that he may
	be arrested for a non- bailable offence, must be capable of being examined by the court
	objectively, because it is then alone that the court can determine whether the applicant has reason
	to believe that he may be so arrested. Section 438(1), therefore, cannot be invoked on the basis of
	vague and general allegations, as if to arm oneself in perpetuity against a possible arrest.
	Otherwise, the number of applications for anticipatory bail will be as large as, at any rate, the
	adult populace. Anticipatory bail is a device to secure the individual's liberty; it is neither a
	passport to the commission of crimes nor a shield against any and all kinds of accusations, likely
	or unlikely.
	Secondly, if an application for anticipatory bail is made to the High Court or the Court of Session
	it must apply its own mind to the question and decide whether a case has been made out for
	granting such relief. It cannot leave the question for the decision of the Magistrate concerned
	under Section 437 of the Code, as and when an occasion arises. Such a course will defeat the
	very object of Section 438.

	Thirdly, the filing of a First Information Report is not a condition precedent to the exercise of the
	power under Section 438. The imminence of a likely arrest founded on a reasonable belief can be
	shown to exist even if an F.I.R. is not yet filed.
	Fourthly, anticipatory bail can be granted even after an F.I.R. is filed, so long as the applicant has
	not been arrested.
	Fifthly, the provisions of Section 438 cannot be invoked after the arrest of the accused. The grant
	of "anticipatory bail" to an accused who is under arrest involves a contradiction in terms, in so
	far as the offence or offences for which he is arrested, are concerned. After arrest, the accused
	must seek his remedy under Section 437 or Section 439 of the Code, if he wants to be released
	on bail in respect of the offence or offences for which he is arrested.
	We have said that there is one proposition formulated by the High Court with which we are
	inclined to agree. That is preposition No. (2). We agree that a 'blanket order' of anticipatory bail
	should not generally be passed. This flows from the very language of the section which, as
	discussed above, requires the applicant to show that he has "reason to believe" that he may be
	arrested. A belief can be said to be founded on reasonable grounds only if there is something
	tangible to go by on the basis of which it can be said that the applicant's apprehension that he
	may be arrested is genuine. That is why, normally, a direction should not issue under Section
	438(1) to the effect that the applicant shall be released on bail "whenever arrested for whichever
	offence whatsoever." That is what is meant by a 'blanket order' of anticipatory bail, an order
	which serves as a blanket to cover or protect any and every kind of allegedly unlawful activity, in
	fact any eventuality, likely or unlikely regarding which, no concrete information can possibly be
	had. The rationale of a direction under Section 438(1) is the belief of the applicant founded on
	reasonable grounds that he may be arrested for a non-bailable offence. It is unrealistic to expect
	the applicant to draw up his application with the meticulousness of a pleading in a civil case and
	such is not requirement of the section. But specific events and facts must be disclosed by the
	applicant in order to enable the court to judge of the reasonableness of his belief, the existence of
	which is the sine qua non of the exercise of power conferred by the section.
	Apart from the fact that the very language of the statute compels this construction, there is an
	important principle involved in the insistence that facts, on the basis of which a direction under
	Section 438 (1) is sought, must be clear and specific, not vague and general. It is only by the
	observance of that principle that a possible conflict between the right of an individual to his
	liberty and the right of the police to investigate into crimes reported to them can be avoided.
	A blanket order of anticipatory bail is bound to cause serious interference with both the right and
	the duty of the police in the matter of investigation because, regardless of what kind of offence is
	alleged to have been committed by the applicant and when, an order of bail which comprehends
	allegedly unlawful activity of any description whatsoever, will prevent the police from arresting
	the applicant even if he commits, say, a murder in the presence of the public. Such an order can
	then become a charter of lawlessness and a weapon to stifle prompt investigation into offences
	which could not possibly be predicated when the order was passed. Therefore, the court which
	grants anticipatory bail must take care to specify the offence or offences in respect of which
	alone the order will be effective. The power should not be exercised in a vacuum.

	There was some discussion before us on certain minor modalities regarding the passing of bail
	orders under Section 438(1). Can an order of bail be passed under that section without notice to
	the public prosecutor? It can be. But notice should issue to the public prosecutor or the
	Government Advocate forthwith and the question of bail should be re-examined in the light of
	the respective contentions of the parties. The ad-interim order too must conform to the
	requirements of the section and suitable conditions should be imposed on the applicant even at
	that stage. Should the operation of an order passed under Section 438(1) be limited in point of
	time? Not necessarily. The Court may, if there are reasons for doing so, limit the operation of the
	order to a short period until after the filing of an F.I.R. in respect of the matter covered by the
	order. The applicant may in such cases be directed to obtain an order of bail under Section 437 or
	439 of the Code within a reasonably short period after the filing of the F.I.R. as aforesaid. But
	this need not be followed as an invariable rule. The normal role should be not to limit the
	operation of the order in relation to a period of time.
	During the last couple of years this Court, while dealing with appeals against orders passed by
	various High Courts, has granted anticipatory bail to many a person by imposing conditions set
	out in Section 438(2)(i), (ii) and
	(iii). The Court has, in addition, directed in most of those cases that (a) the applicant should
	surrender himself to the police for a brief period if a discovery is to be made under Section 27 of
	the Evidence Act or that he should be deemed to have surrendered himself if such a discovery is
	to be made. In certain exceptional cases, the Court has, in view of the material placed before it,
	directed that the order of anticipatory bail will remain in operation only for a week or so until
	after the filing of the F.I.R. in respect of matters covered by the order. These orders, on the
	whole, have worked satisfactorily, causing the least inconvenience to the individuals concerned
	and least interference with the investigational rights of the police. The Court has attempted
	through those orders to strike a balance between the individual's right to personal freedom and
	the investigational rights of the police. The appellants who were refused anticipatory bail by
	various courts have long since been released by this Court under Section 438(1) of the Code.
	The various appeals and Special Leave petitions before us will stand disposed of in terms of this
	Judgment. The judgment of the Full Bench of the Punjab and Haryana High Court, which was
	treated as the main case under appeal, is substantially set aside as indicated during the course of
	this Judgment.
	S.R. Appeals allowed in part.