Ruling - Section 438 of Cr.P.c.

8/12/2019 Ruling - Section 438 of Cr.P.c.

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Home>Articles> Criminal Law > ANTICIPATARY AIL!Cr.P.C S"M# IMP"RTANT CAS# LA$S

ANTICIPATARY BAIL-Cr.P.C SOME

IMPORTANT CASE LAWS% & P'ANAR(HANA R#((Yon )* "ctober +)), Print this

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ANTICIPATARY BAIL-438 Cr.P.C

There are many misconceptions foating around regarding Anticipatory Bail. One such

misconception is that a 498a case is an automatic arrest warrant. However, it does not

necessarily have to e so. !n 498A cases, the moment you get an anticipatory ail, the police

are eliminated as a "actor and you#ve pretty much won the most di$cult part o" this %ght.

Another misconception is that the %ling o" &!' is a must e"ore getting Anticipatory Bail.

Again, this is simply not true.

(ost o" the times, lawyers don#t "ully understand the provision o" anticipatory ail given in

)ection 4*8 o" +r. . +. This article tries to e-plain the meaning, usage, conditions applicale,

regarding Anticipatory Bail with the help o" recent )upreme +ourt udgments.

What is Anticipatory Bail?

)ection 4*8 o" the +ode o" +riminal rocedure, /90* provides that when any person has

reason to elieve that he may e arrested on an accusation o" having committed a non1

ailale o2ence, he may apply to the High +ourt or the +ourt o" )essions "or a direction under

this section, and that +ourt may, i" it thin3s %t, direct that in the event o" such arrest, he shall

e released on ail.

As oserved in Balchand Jain Vs. State of M.P., ànticipatory bail' means`bail in anticipation of arrest'. The expression ànticipatory bail' is amisnomer inasmuch as it is not as if bail is presently granted by the

Court in anticipation of arrest. When a competent court grantsànticipatory bail', it makes an order that in the event of arrest, a

person shall be released on bail. There is no question of release on bailunless a person is arrested and, therefore, it is only on arrest that theorder granting anticipatory bail becomes operative.

Here is one important point to e 3ept in mind with regard to anticipatory ail

The ling of First Inforation !eport "FI!# is not a condition precedent to the

e$ercise of po%er &nder Section '(). The iinence of a li*ely arrest fo&nded on

a reasona+le +elief can +e sho%n to e$ist e,en if an FI! is not yet led.

-ere is the co,erage fro The -ind&

The )upreme +ourt o" !ndia e-plains the meaning o" Anticipatory Bail and lays the conditions

"or granting it. Here are the 9 guidelines as laid down y a constitution ench, which the

+ourts are re5uired to 3eep in mind while dealing with an application "or grant o" anticipatory

ail

i6 Though the power con"erred under )ection 4*8 o" the +ode can e descried as o" an
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e-traordinary

character, ut this does not ustify the conclusion that the po!er must be exercised

in exceptional cases only because it is of an extraordinary character. "onetheless,

the discretion under the #ection has to be exercised !ith due care and

circumspection depending on circumstances ustifying its exercise.

ii6 Be"ore power under su1section 7/6 o" )ection 4*8 o" the +ode is e-ercised, the Court

must be satis$ed that the applicant invoking the provision has reason to believe

that he is likely to be arrested for a non%bailable o&ence and that belief must be

founded on reasonable grounds.(ere "ear is not elie", "or which reason, it is not

enough "or the applicant to show that he has some sort o" vague apprehension that some

one is going to ma3e an accusation against him, in pursuance o" which he may e

arrested. The grounds on which the belief of the applicant is based that he may be arrested

for a non-bailable oence, must be capable of being examined by the Court objectively.

Specic 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 !ua non of the

exercise of power conferred by the Section.iii6 The oservations made in Balchand Jains case "s&pra6, regarding the nature o" the

power con"erred y )ection 4*8 and regarding the 5uestion whether the conditions

mentioned in )ection 4*0 should e read into )ection 4*8 cannot e treated as conclusive on

the point. There is no warrant "or reading into )ection 4*8, the conditions subject to which

bail can be granted under Section "#$%&' of the Code and therefore, anticipatory bail cannot

be refused in respect of oences li(e criminal breach of trust for the mere reason that the

punishment provided for is imprisonment for life. Circumstances may broadly justify the

grant of bail in such cases too, though of course, the Court is free to refuse anticipatory bail

in any case if there is material before it justifying such refusal.

iv6 :o lan3et order o" ail should e passed and the +ourt which grants anticipatory ail

must ta3e care to speci"y the o2ence or the o2ences in respect o" which alone the order wille e2ective. While granting relief under #ection ()*+ of the Code, appropriate

conditions can be imposed under #ection ()*- so as to ensure an uninterrupted

investigation. ne such condition can even be that in the event of the police making

out a case of a likely discovery under #ection -/ of the 0vidence 1ct, the person

released on bail shall be liable to be taken in police custody for facilitating the

recovery. Otherwise, such an order can ecome a charter o" lawlessness and a weapon to

stife prompt investigation into o2ences which could not possily e predicated when the

order was passed.

v6 The $ling of 2irst 3nformation 4eport *234 is not a condition precedent to the

exercise of po!er under #ection (). The imminence of a likely arrest founded on

a reasonable belief can be sho!n to exist even if an 234 is not yet $led.

vi6 An anticipatory ail can be granted even after an 234 is $led so long as the

applicant has not been arrested.

vii6 The provisions of #ection () cannot be invoked after the arrest of the

accused. 1fter arrest, the accused must seek his remedy under #ection (/ or

#ection (5 of the Code,i" he wants to e released on ail in respect o" the o2ence or

o2ences "or which he is arrested.


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viii61n interim bail order can be passed under #ection () of the Code !ithout

notice to the 6ublic 6rosecutor but notice should be issued to the 6ublic 6rosecutor

or to the 7overnment advocate forth!ith and the question of bail should be re%

examined in the light of respective contentions of the parties. The ad1interim order

too must con"orm to the re5uirements o" the )ection and suitale conditions should e

imposed on the applicant even at that stage.

i-6 Though it is not necessary that the operation of an order passed under #ection

()*+ of the Code be limited in point of time but the Court may, if there are

reasons for doing so, limit the operation of the order to a short period until after

the $ling of 234 in respect of the matter covered by the order. The applicant may,

in such cases, be directed to obtain an order of bail under #ection (/ or (5 of

the Code !ithin a reasonable short period after the $ling of the 234.

Here is the ;udgment

SAVIT!I A/A!WA0 1 2!S. 33 APP400A5T "S#

V4!S6SSTAT4 2F MA-A!AS-T!A 1 A5!. 33 !4SP25745T "S#

(?:T =.@. A!:, .eave granted.

The appellants herein are the mother1in1law, "ather1 in1law, husand and the younger

rother o" the "ather1in1law o" the deceased1 a-mi. They are accused o" having

committed o2ences punishale under Sections '8)A9 (:'3B read %ith

Section (' of the Indian Penal ;ode9


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left the matrimonial home, intending to commit suicide but due to

intervention of the relatives, she returned bac(. On the said complaint, thepolice registered an 234 against the appellants for o&ences under#ection 5)1 read !ith #ection (, 36C and #ections ( and of the8o!ry 6rohibition 1ct, +59+.

On Cth =ecemer, DD0 the appellants applied for grant of anticipatory bail

before the #essions :udge, 1mravati, !ho, vide order dated +;th

8ecember, -;;/, initially granted interim protection to them from

arrest till the next date of hearing i.e. +/th 8ecember, -;;/. n +9th

8ecember, -;;/,


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the appellants.earned counsel argued that the anticipatory +ailha,ing +een granted +y the Sessions J&dge &pon consideration ofthe rele,ant aterial placed +efore hi +y the prosec&tion9 ,i. thedying declarations9 the stateents recorded +y the in,estigatingocer and the case diary9 in the a+sence of any coplaint +y theIn,estigating 2cer that the appellants %ere not cooperating in thein,estigationsa"ter the grant o" interim protection on /Dth =ecemer,DD0, or that they had misused the anticipatory ail granted to them, therewas no other overwhelming circumstance e"ore the High +ourt, warrantinginter"erence with the ;udicial discretion e-ercised y the )essions udge andcancellation o" ail.

)ection 4*8 o" the +ode con"ers on the High +ourt and the +ourt o" )ession, thepower to grant Fanticipatory ailG i" the applicant has Freason to elieveG thathe may e arrested on accusation o" having committed a non1ailaleo2ence. The e-pression Fanticipatory ailG has not een de%ned in the +ode.

But as oserved in Balchand Jain Vs. State of M.P., ànticipatory bail'means `bail in anticipation of arrest'. The expression ànticipatorybail' is a misnomer inasmuch as it is not as if bail is presentlygranted by the Court in anticipation of arrest. When a competentcourt grants ànticipatory bail', it makes an order that in the eventof arrest, a person shall be released on bail. There is no question ofrelease on bail unless a person is arrested and, therefore, it is onlyon arrest that the order granting anticipatory bail becomesoperative.The +ourt went on to oserve that the power o" grantingFanticipatory ailG is somewhat e-traordinary in character and it is only inFe-ceptional casesG !here 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 ofan o&ence is not likely to abscond, or other!ise misuse his liberty!hile on bail> that such po!er may be exercised. The po!er beingrather unusual in nature, it is entrusted only to the higher echelonsof udicial service, i.e. a Court of #ession and the ?igh Court. Thus,the ambit of po!er conferred by #ection () of the Code !as heldto be limited.

@eeping in view the reports o" the aw +ommission, )ection 4*8 was inserted in the

+ode. )u1section %&' of Section "#/ enacts that when any person has reason to

believe that he may be arrested on an accusation of having committed a non-

bailable oence, he may apply to the 0igh Court or to the Court of Session for a

direction that in the event of his arrest he shall be released on bail, and the

Court may, if it thin(s t, direct that in the event of such arrest he shall be

released on bail. Sub-section %*' empowers the 0igh Court or the Court of

Session to impose conditions enumerated therein. Sub- section %#' states that if

such person is thereafter arrested without warrant by an o1cer in charge of a

police station on such accusation, he shall be released on bail.


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!n >ura3sh )ingh )iia 7supra6, the +onstitution Bench was called upon toconsider correctness or otherwise o" principles laid down y the &ull Bench o"High +ourt o" un;a Haryana in /&r+a*sh Singh Si++ia Vs. State ofP&nGa+.The &ull Bench o" the High +ourt summariIed the law relating toanticipatory ail as refected in )ection 4*8 o" the +ode and laid down eightprinciples which were to e 3ept in view while e-ercising discretionary powerto grant anticipatory ail.

The +ourt "elt that wide discretionary power con"erred y the egislature on thehigher echelons in the criminal ;ustice delivery system cannot e put in the"orm o" straight1;ac3et rules "or universal application as the 5uestion whetherto grant ail or not depends "or its answer upon a variety o" circumstances,the cumulative e2ect o" which must enter into the ;udicial verdict. Acircumstance which, in a given case, turns out to e conclusive, may or maynot have any signi%cance in another case. Jhile cautioning againstimposition o" unnecessary restrictions on the scope o" the )ection, ecause,

in its opinion, over generous in"usion o" constraints and conditions, whichwere not to e "ound in )ection 4*8 o" the +ode, could ma3e the provisionconstitutionally vulnerale, since the right o" personal "reedom, as enshrinedin Article / o" the +onstitution, cannot e made to depend on compliancewith unreasonale restrictions, the +onstitution Bench laid down the"ollowing guidelines, which the +ourts are re5uired to 3eep in mind whiledealing with an application "or grant o" anticipatory ail

i6 Though the po!er conferred under #ection () of the Code canbe described as of an extraordinary character, but this doesnot ustify the conclusion that the po!er must be exercised inexceptional cases only because it is of an extraordinary

character. "onetheless, the discretion under the #ection hasto be exercised !ith due care and circumspection dependingon circumstances ustifying its exercise.

ii6 Be"ore power under su1section 7/6 o" )ection 4*8 o" the +ode ise-ercised, the Court must be satis$ed that the applicantinvoking the provision has reason to believe that he is likely tobe arrested for a non%bailable o&ence and that belief must befounded on reasonable grounds. @ere >fear> is not belief, for!hich reason, it is not enough for the applicant to sho! thathe has some sort of vague apprehension that some one isgoing to make an accusation against him, in pursuance of

!hich he may be arrested.The grounds on which the elie" o" theapplicant is ased that he may e arrested "or a non1ailale o2ence,must e capale o" eing e-amined y the +ourt o;ectively. )peci%cevents and "acts must e disclosed y the applicant in order to enalethe +ourt to ;udge o" the reasonaleness o" his elie", the e-istence o"which is the sine 5ua non o" the e-ercise o" power con"erred y the)ection.


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iii6 The oservations made in Balchand ainGs case 7supra6, regarding thenature o" the power con"erred y )ection 4*8 and regarding the5uestion whether the conditions mentioned in )ection 4*0 should eread into )ection 4*8 cannot e treated as conclusive on the point.There is no warrant "or reading into )ection 4*8, the conditions su;ectto which ail can e granted under )ection 4*07/6 o" the +ode andthere"ore, anticipatory ail cannot e re"used in respect o" o2encesli3e criminal reach o" trust "or the mere reason that the punishmentprovided "or is imprisonment "or li"e. +ircumstances may roadly;usti"y the grant o" ail in such cases too, though o" course, the +ourtis "ree to re"use anticipatory ail in any case i" there is material e"oreit ;usti"ying such re"usal.

iv6 2o blan(et order of bail should be passed and the Court which grants

anticipatory bail must ta(e care to specify the oence or the oences in

respect of which alone the order will be eective. 3hile granting reliefunder Section "#/%&' of the Code, appropriate conditions can be imposed

under Section "#/%*' so as to ensure an uninterrupted investigation. One

such condition can even e that in the event o" the police ma3ing out a

case o" a li3ely discovery under )ection 0 o" the ?vidence Act, the

person released on ail shall e liale to e ta3en in police custody "or

"acilitating the recovery. Otherwise, such an order can ecome a charter

o" lawlessness and a weapon to stife prompt investigation into o2ences

which could not possily e predicated when the order was passed.

v6 The ling of 4irst 5nformation )eport %45)' is not a condition precedent tothe exercise of power under Section "#/. The imminence of a li(ely

arrest & founded on a reasonable belief can be shown to exist even ifan 45) is not yet led.

vi66n anticipatory bail can be granted even after an 45) is led so long asthe applicant has not been arrested.

vii6 The provisions of Section "#/ cannot be invo(ed after the arrest of theaccused. 6fter arrest, the accused must see( his remedy under

Section "#$ or Section "#7 of the Code, i" he wants to e released onail in respect o" the o2ence or o2ences "or which he is arrested.

viii66n interim bail order can be passed under Section "#/ of the Codewithout notice to the 8ublic 8rosecutor but notice should be issued to

the 8ublic 8rosecutor or to the 9overnment advocate forthwith and

the !uestion of bail should be re-examined in the light of respectivecontentions of the parties. The ad-interim order too must conform to

the re!uirements of the Section and suitable conditions should be

imposed on the applicant even at that stage.

i-6 Though it is not necessary that the operation of an order passed underSection "#/%&' of the Code be limited in point of time but the Court

may, if there are reasons for doing so, limit the operation of the order


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to a short period until after the ling of 45) 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 "#$ or "#7 of the Code within a

reasonable short period after the ling of the 45).

At this ;uncture, it would e appropriate to note that the view e-pressed y this+ourt in Adri 7haran 7as Vs. State of W.B.to the e2ect that whiledealing with an application under )ection 4*8 o" the +ode, the +ourt cannotpass an interim order restraining arrest as it will amount to inter"erence inthe investigation, does not appear to e in consonance with the opinion o"the +onstitution Bench in )iiaGs case 7supra6. )imilarly, the oservationthat power under )ection 4*8 is to e e-ercised only in e-ceptional casesseems to e ased on the decision in BalchandGs case 7supra6, which has noteen "ully approved y the +onstitution Bench. On this aspect, the+onstitution Bench stated thusKThe oservations made in Balchand ain regarding the nature o" the power

con"erred y )ection 4*8 and regarding the 5uestion whether theconditions mentioned in )ection 4*0 should e read into )ection 4*8

cannot there"ore e treated as concluding the points which arise directly "or

our consideration. Je agree, with respect, that the power con"erred y

)ection 4*8 is o" an e-traordinary character in the sense indicated aove,

namely, that it is not ordinarily resorted to li3e the power con"erred y

)ections 4*0 and 4*9. Je also agree that the power to grant anticipatory

ail should e e-ercised with due care and circumspection ut eyond that,

it is not possile to agree with the oservations made in Balchand ain in an

altogether di2erent conte-t on an altogether di2erent pointK. 7?mphasis

)upplied6

!t would also e o" some signi%cance to mention that )ection 4*8 has eenamended y the +ode o" +riminal rocedure 7Amendment6 Act, DDE. Theamended )ection is more or less in line with the parameters laid down in)iiaGs case 7supra6. However, the amended provision has not yet eenrought into "orce.

Having considered the case in hand on the touchstone o" the a"orementionedparameters, we are o" the opinion that the High +ourt has committed aserious error in reversing the order passed y the Additional )essions udge,Amravati granting anticipatory ail to the appellants. The learned#essions :udge passed the order after due consideration of thefacts and circumstances of the case, in particular, the t!o dying

declarations, one recorded in the presence of the parents of thedeceased and the statements of the members of the Women Cell!ho had dealt !ith the case !hen on +Ath :uly, -;;9, the deceasedhad left the house !ith intention to commit suicide and therefore, itcannot be said that the udicial discretion exercised in grantinganticipatory bail !as perverse or erroneous, !arrantinginterference by the ?igh Court. The order passed by the #essions


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:udge !as supported by reasons to the extent required for exerciseof udicial discretion in the matter of grant of bail. 3t may be truethat some of the circumstances, noticed by the ?igh Court in theimpugned order, viB., no reference to lantern in the spot panchnamaor the necessity of cleaning the lantern at p.m. andor availabilityof an inverter in the house etc., could have persuaded the #essions

:udge to take a di&erent vie! but it cannot be said that the factors!hich !eighed !ith the #essions :udge in granting bail !ereirrelevant to the issue before him, rendering the order as perverse.@oreover, merely because the ?igh Court had a di&erent vie! onsame set of material, !hich had been taken into consideration bythe #essions :udge, in our vie!, !as not a valid ground to label theorder passed by the #essions :udge as perverse.

!t also appears to us that the High +ourt has overloo3ed the distinction o" "actors

relevant "or re;ecting ail in a non1ailale case in the %rst instance and the

cancellation o" ail already granted. 5n :olat )am ; r. 2aphade, learned senior counsel representing the State,

stated that after grant of anticipatory bail to the appellants, no investigation inthe case has been conducted.

&or the "oregoing reasons, in our ;udgment, the impugned order setting aside theanticipatory ail granted to the appellants y the learned Additional )essionsudge, cannot e sustained. Accordingly, the appeals are allowedL impugnedorder is set aside and the order dated /8th =ecemer, DD0 passed y theAdditional )essions udge con%rming the ad1interim anticipatory ail to theappellants, is restored. !t goes without saying that nothing said y the High+ourt or y us hereinaove shall e construed as e-pression o" any opinionon the merits o" the case.

Both the appeals stand disposed o", accordingly.

................................... 7=.@. A!:6

................................... 7'.(. O=HA6:?J =?H!L


12/37

BA0;-A57 JAI5 Vs. STAT4 2F MA7-HA P!A74S-+oram BHA>JAT!, .:.

DEN//N/90C

, , , ,

S&+Gect

=e"ence and !nternal )ecurity o" !ndia 'ules, /90/11r. /8411!" supersedes ). 4*8. +r.

.+. /90*.

-ead 5otes

)ection 4*8 o" the +ode o" +riminal rocedure, /90* provides that when any

person has reason to elieve that he may e arrested on an accusation o" having committed

a non1 ailale o2ence, he may apply to the High +ourt or the +ourt o" )ession "or a

direction under this )ection. 'ule /84 o" the 'ules made under =e"ence and !nternal )ecurity

o" !ndia Act, /90/ enacts that notwithstanding anything contained in the +ode o" +riminal

rocedure, /898, no person accused or convicted o" a contravention o" the 'ules or ordersmade thereunder shall, i" in custody, e released on ail or on his own ond unless 7a6 the

prosecution has een given an opportunity to oppose the application "or such release and

76 where the prosecution opposes the application and the contravention is o" any such

provision o" the 'ules or orders made thereunder as the +entral >overnment or the )tate

>overnment may, y noti%ed order speci"y in this ehal", the +ourt is satis%ed that

there are reasonale grounds "or elieving that he is not guilty o" such contravention.

A &ood !nspector raided the shop o" the appellant, who was a merchant dealing

in 3iryana goods and 3erosene oil etc., and seiIed his account oo3s.

Apprehending that he might e arrested on a charge o" non1ailale o2ence "or

contravention o" the provisions o" the =e"ence and !nternal

)ecurity o" !ndia Act and the 'ules, the appellant approached the )essions udge "or ananticipatory ail under s. 4*8 o" the +ode o" +riminal rocedure, /90*. The )essions udge

re;ected the application. =ismissing his appeal, the High +ourt held that the e-press

provisions o" r. /84 o" the 'ules superseded s. 4*8 o" the +ode in so "ar as o2ences set out

in r. /84 were concerned.

Allowing the appeal and remanding the case to the High +ourt

H?= 7. :. Bhagwati and A.+. >upta,.6

)ection 4*8 and r. /84 operate at di2erent stages, one prior to arrest.and the

other a"ter arrest and there is no overlapping etween these two provisions. 'ule /84 does

not stand in the way o" a +ourt o" )essions or a High +ourt granting anticipatory ail under

s. 4*8. E0>P

/. The ter anticipatory +ail is a isnoer. It is not as if the +ail

is presently granted +y the co&rt in anticipation of arrest. When the co&rt grants

anticipatory +ail it a*es an order that in the e,ent of arrest a person

shall +e released on +ail. This soe%hat e$traordinary po%er is e$ercised only in

e$ceptional cases and is entr&sted to the higher echelons of the G&dicial

ser,ice naely the co&rt of Sessions and the -igh ;o&rt. -K

. 'ule /84 postulates the e-istence o" power in the court under the +ode and
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13/37

see3s to place a cur on its e-ercise y providing that a person accused or convicted o"

contravention o" any rule or order, i" in custody, shall not e released on ail unless the

conditions mentioned in the rule are satis%ed. 'ule /84 does not lay down a sel"1contained

code "or grant o" ail. /t cannot e construed as displacing altogether the provisions o" the

+ode in regard to ail. The provisions o" the +ode must e read alongwith r. /84 and

"ull e2ect must e given to them e-cept in so "ar as they are y reason o" the non1ostante

clause overridden y r. /84. E0B1+P

An application &nder s. '() is an application on an apprehension of

arrest. 2n s&ch an application9 the direction that ay +e gi,en &nder s. '() is that

in the e,ent of his arrest the applicant shall +e released on +ail.

)ection 4*8 o" the +ode has not een repealed y r. /84 o" the 'ules, ut oth

have to e read harmoniously. 'ule /84 is only supplemental to 8. 4*8 and

contains guidelines which have to e "ollowed y the +ourt in passing orders "or

anticipatory ail in relation to cases covered y r./84. 0DAP

/. "a# Section '() of the ;ede is an e$traordinary reedy

and sho&ld +e resorted to only in special cases.0D+P "+# Section '() applies only to non3+aila+le oCences.

Anticipatory +ail +eing an e$traordinary reedy a,aila+le in special cases9 this

po%er has +een conferred on the higher echelons of G&dicial ser,ice9 naely9

the ;o&rt of Sessions or the -igh ;o&rt. Jhat the section contemplates is not

anticipatory ail ut erely an order releasing an acc&sed on +ail in the e,ent of his

arrest. There can +e no &estion of +ail &nless a person is &nder detention or

c&stody. The o+Gect of s. '() is that the oent a person is arrested9 if he had

already o+tained an order fro the Sessions J&dge or the -igh ;o&rt9 he %o&ld

+e released iediately %itho&t ha,ing to &ndergo the rigo&rs of Gail e,en for a

fe% days. C*B1=P

. 7a6 Jhile interpreting statutes, the +ourt must in"er repeal o" a"ormer statute y the latter only i" it causes inconvenience or where it is couched in negative

terms. The legislat&re does not intend to *eep contradictory enactents on the

stat&te +oo* and9 therefore9 a constr&ction sho&ld +e accepted %hich oCers an

escape fro it. CCA1+P 1s!ini Dumar 7hosh and 1nr. v. 1rabinda =ose and 1nr.

E+5A(F #.C.4. + referred to.

. 76 !" the intention o" r. /84 were to override the provisions o" s 4*8, then the

egislature should have e-pressly stated that the provisions o" s. 4*8 shall not apply to

o2ences contemplated y r. /84. There"ore, the egislature in its wisdom le"t it to the +ourt

to ring aout a harmonious construction o" the two statutes so that the two may wor3 and

stand together. CE&1>P

:orthern !ndia +ateres vt. td. Anr. v. )tate o" un;a and Anr. /9C0P * ).+.'. *99

"ollowed.

*. 7a6 Section '() does not contain &ng&ided or &ncanalised po%er to

pass an order for anticipatory +ail@ +&t s&ch an order +eing of an e$ceptional type

can only +e passed if9 apart fro the conditions entioned in s. '(D. there is a

special case for passing the order. The words G"or a direction under this sectionG and

G+ourt may, i" it thin3s %t, directG clearly show that the ;o&rt has to +e g&ided +y a large


14/37

n&+er of considerations9 incl&ding those entioned in s. '(D.Jhen a +ourt is

dealing with o2ences contemplated y r. /84 it is o+,io&s that tho&gh the oCences are

not p&nisha+le %ith death or iprisonent for life so as to attract the

pro,isions of s. '(D9 the conditions laid do%n +y r. ura3sh )ingh )iia was a (inister o" !rrigation and ower in

the +ongress (inistry o" the >overnment o" un;a. >rave allegations o" political

corruption were made against him and others whereupon applications were %led in the

High +ourt o" un;a and Haryana under section 4*8 o" the +riminal rocedure +ode,

praying that the appellants e directed to e released on ail, in the event o" their arrest on

the a"oresaid charges.

+onsidering the importance o" the matter, a learned single udge re"erred the

applications to a &ull Bench, which y its ;udgment dated )eptemer, /*, /900 dismissed

them, a"ter summarising, what according to it is the true legal position, o" s. 4*8 o" the

+ode o" +riminal rocedure, /90* 7Act o" /9046 thus

"


15/37

"'# In addition to the liitations entioned Section '(D9 the

petitioner &st a*e o&t special case for the e$ercise of the po%er to grant

anticipatory +ail.

"# Where a legitiate case for the reand of the oCender to the

police c&stody &nder Section


16/37

of %hether it is iposed +y legislation or +y G&dicial decision. Allowing the appeals

in part, the +ourt,

H?= /. The society has a vital sta3e in oth o" these interests namely, personal

lierty and the investigational power o" the police. The +ourtGs tas3 is how est to

alance these interests while determining the scope o" section 4*8 o" the +ode o"

+riminal rocedure, /90*. *9* +1=P

. The High +ourt and the +ourt o" )ession should e le"t to e-ercise their ;urisdiction

under section 4*8 y a wise and care"ul use o" their discretion which y their long training

and e-perience, they are ideally suited to do. The ends o" ;ustice will e etter served

y trusting these courts to act o;ectively and in consonance with principles governing the

grant o" ail. 4/0 B1=P

*. )ection 4*87/6 o" the +ode lays down a condition which has to e satis%ed

e"ore anticipatory ail can e granted. The applicant &st sho% that he

has Nreason to +elie,eN that he ay +e arrested for a non3+aila+le oCence. The

&se of the e$pression Nreason to +elie,eN sho%s that the +elief that the applicant

ay +e so arrested &st +e fo&nded on reasona+le gro&nds. Mere fear isnot +elief9 for %hich reason it is not eno&gh for the applicant to sho% that he

has soe sort of a ,ag&e apprehension that soe one is going to a*e

an acc&sation against hi9 in p&rs&ance of

%hich he ay +e arrested. The gro&nds on %hich the +elief of the applicant is

+ased that he ay +e arrested for a non3+aila+le oCence9 must e capale o" eing

e-amined y the court o;ectively, ecause it is then alone that the court can

determine whether the applicant has reason to elieve

that he may e so arrested. Section '()"


17/37

an acc&sed %ho is &nder arrestinvolves a contradiction in terms, in so "ar as the

o2ence or o2ences "or which he is arrested, are concerned. After arrest9 the acc&sed

&st see* his reedy &nder Section '(D or Section '(8 of the ;ode9 if he %ants

to +e released on +ail in respect of the oCence or oCences for %hich he is

arrested.4/8 +1?P

4. -o%e,er9 a N+lan*et orderN of anticipatory +ail sho&ld not generally

+e passed. This Oo%s fro the ,ery lang&age of the section %hich re&ires the

appellant to sho% that he has Nreason to +elie,eN that he ay +e arrested. A +elief

can +e said to +e fo&nded on reasona+le gro&nds only if there is soething

tangi+le to go +y on the +asis of %hich it can +e said that the applicants

apprehension that he ay +e arrested is gen&ine. That is why, normally, a direction

should not issue under )ection 4*87/6 to the e2ect that the applicant

shall e released on ail Kwhenever arrested "or which ever o2ence whatsoeverK. That is

%hat is eant +y a +lan*et order of anticipatory +ail9 an order %hich ser,es as a

+lan*et to co,er or protect any and e,ery *ind of allegedly &nla%f&l acti,ity9 infact any e,ent&ality9 li*ely or &nli*ely regarding %hich9 no concrete

inforation can possi+ly +e +ad.The rationale o" a direction under )ection 4*87/6 is

the elie" o" the applicant "ounded on reasonale grounds that he may e arrested "or a

non1ailale o2ence. It is &nrealistic to e$pect the applicant to dra% &p his

application %ith the etic&lo&sness of a pleading in a ci,il case and s&ch is not

re&ireent of the section. B&t specic e,ents and facts &st +e disclosed

+y the applicant in order to ena+le the co&rt to G&dge of the reasona+leness of

his +elief9 the e$istence of %hich is the sine &a non of the e$ercise of

po%er conferred +y the section.4/8 ?1H, 4/9 AP

A +lan*et order of anticipatory +ail is +o&nd to ca&se serio&s interference

%ith +oth the right and the d&ty of the police in the atter of in,estigation+eca&se9 regardless of %hat *ind of oCence is alleged to ha,e +een coitted +y

the applicant and %hen9 an order of +ail %hich coprehends allegedly

&nla%f&l acti,ity of any description %hatsoe,er9 %ill pre,ent the police fro

arresting the applicant e,en if the coits9 say9 a &rder in the presence of the

p&+lic.)uch an order can then ecome a charter o" lawlessness and weapon to stife

prompt !nvestigation into o2ences which could not possily e predicated when the order

was passed. Therefore9 the co&rt %hich grants anticipatory +ail &st ta*e care to

specify the oCence or oCences in respect of %hich alone the order %ill

+e eCecti,e. The po%er sho&ld not +e e$ercised in a ,ac&&. 4/9 +1?P

E. An order of +ail can +e passed &nder section '()"


18/37

e limited in point o" time. The ;o&rt ay9 if there are reasons for doing so9 liit

the operation of the order to a short period &ntil after the ling of an F.I.!. in

respect of the atter co,ered +y the order. The applicant ay in s&ch cases +e

directed to o+tain an order of +ail &nder Section '(D or '(8 of the;ode %ithin a

reasona+ly short period after the ling of the F.I.!. as aforesaid. But this need not

e "ollowed as an invariale rule. The normal rule should e not to limit the operation o" the

order in relation to a period o" time. 4/9 &1HP

0. Bail is +asically release fro restraint9 ore partic&larly release fro the

c&stody of the police. The act of arrest directly aCects freedo of o,eent of the

person arrested +y the police9 and spea*ing generally9 an order of +ail gi,es +ac*

to the acc&sed that freedo on condition that he %ill appear to ta*e his trial.

Personal recogniance s&retyship +onds and such other modalities are the means y

which an assurance is secured "rom the accused that though he has een released on ail, he

will present himsel" as the trial o" o2ence or o2ences o" which he is charged and "or which he

was arrested. *90 ?1>P

The distinction +et%een an ordinary order of +ail and an order of anticipatory+ail is that %hereas the forer is granted after arrest and therefore

eans release fro the c&stody of the police9 the latter is granted in anticipation

of arrest and is therefore eCecti,e at the ,ery oent of arrest. Police c&stody

is an ine,ita+le concoitant of arrest for non3+aila+le oCences. An order of

anticipatory +ail constit&tes9 so to say9 an ins&rance against police c&stody

follo%ing &pon arrest for oCence or oCences in respect of %hich the order is

iss&ed. In other %ords9 &nli*e a post3arrest order of +ail9 it is a pre3arrest legal

process %hich directs that if the person in %hose fa,o&r it is

iss&ed is thereafter arrested on the acc&sation in respect of %hich

the direction is iss&ed9 he shall +e released on +ail.)ection 4C7/6 o" the +ode

o" +riminal rocedure which deals with how arrests are to e made, provides that inma3ing the arrest the police o$cer or other person ma3ing the arrest

Kshall actually touch or con%ne the ody o" the person to e arrested, unless there e

a sumission to the custody y word or actionK. A

direction under section 4*8 is intended to con"er conditional immunity "rom this GtouchG or

con%nement. *90 >1H. *98 A1BP

The legislature con"erred a wide discretion on the High +ourt and the +ourt o" )ession to

grant anticipatory ail ecause it evidently "elt, %rstly, that it would e

di$cult to enumerate the conditions under which anticipatory

ail should or should not e granted and secondlyL ecause the intention was to allow

the higher courts in the echelon a somewhat "ree hand in the grant o" relie" in the nature o"

anticipatory ail. That is why, departing "rom the terms o" )ections 4*0 and 4*9, )ection

4*87/6 uses the language that the High +ourt or the +ourt o" )ession Kmay, i" it thin3s %tK

direct that the applicant e released on ail. )u1section 76 o" )ection 4*8 is a "urther

and clearer mani"estation o" the same legislative intent

to con"er a wide discretionary power to grant anticipatory ail. !t provides that the High

+ourt or the +ourt o" )ession, while issuing a direction "or the grant o" anticipatory ail, Kmay


19/37

include such conditions in such directions in the light o" the "acts o" the particular case, as

it may thin3 %tK including the conditions which are set out in clauses 7i6 to 7iv6 o" su1section

76. The proo" o" legislative intent can est e "ound in the language which

the legislature uses. Amiguities can undoutedly e resolved y resort to e-traneous

aids ut words, as wide and e-plicit as have een used in )ection 4*8, must e given their

"ull e2ect, especially when to re"use to do so will result in undue impairment o" the "reedom

o" the individual and the presumption o" innocence. !t has to e orne in mind that

anticipatory ail is sought when there is a mere apprehension o" arrest on the accusation

that the applicant has committed a non1ailale o2ence. A person who has yet to lose his

"reedom y eing arrested as3s "or "reedom in the event o" arrest. That is the

stage at which it is imperative to protect his "reedom, in so "ar as one may, and to give "ull

play to the presumption that he is innocent. !n "act, the stage at which

anticipatory ail is generally sought rings aout its stri3ing dissimilarity with the

situation in which a person who is arrested "or the commission o" a non1ailale o2ences

as3s "or ail. !n the latter situation, ade5uate data is availale to the +ourt, or can e

called "or y it, in the light o" which it can grant or re"use relie" and while granting it,modi"y it y the imposition o" all or any o" the conditions mentioned in )ection 4*0. 4D4 A1>P

/D. The amplitude o" ;udicial discretion which is given to the High +ourt and the +ourt o"

)essions, to impose such conditions as they may thin3 %t while granting anticipatory ail,

should not e cut down, y a process o" construction, y reading into the statute conditions

which are not to e "ound therein li3e those evolved y the High +ourt. The High +ourt

and the +ourt o" )ession to whom the application "or anticipatory ail is made ought to e

le"t "ree in the e-ercise o" their ;udicial discretion to grant ail i" they consider it %t so to

do on the particular "acts and circumstances o" the case and on such conditions as the case

may warrant. )imilarly, they must e le"t "ree to re"use ail i"

the circumstances o" the case so warrant, on considerations similar to those

mentioned in )ection 4*0 or which are generally considered to e relevant under )ection 4*9o" the +ode. 4DE B1=P

>eneralisations on matters which rest on discretion and the attempt to discover "ormulae

o" universal application when "acts are ound to di2er "rom case to case "rustrate the

very purpose o" con"erring discretion. :o two cases are ali3e on "acts and there"ore, +ourts

have to e allowed a

ittle "ree play in the ;oints i" the con"erment o" discretionary power is to e

meaning"ul. There is no ris3 involved in entrusting a wide discretion to the +ourt o" )ession

and the High +ourt in granting anticipatory ail ecause, %rstly these are higher courts

manned y e-perienced persons, secondly their order are not %nal ut are open to

appellate or revisional scrutiny and aove all ecause, discretion has always to e e-ercised

y courts ;udicially and not according to whim, caprice or "ancy. On the other hand, there is a

ris3 in "oreclosing categories o" cases in which anticipatory ail may e allowed ecause li"e

throws up un"oreseen possiilities and o2ers new challenges. udicial discretion has to e

"ree enough to e ale to ta3e these possiilities in its stride and to meet these challenges.

4DE =1>P Hyman and Anr. v. 'ose, /9/ A.+. C*L re"erred to

//. udges have to decide cases as they come e"ore them, mind"ul o" the need

to 3eep passions and pre;udices out o" their decisions. And it will e strange i", y


20/37

employing ;udicial arti%ces and techni5ues, this +ourt cuts down the discretion so wisely

con"erred upon the +ourts, y devising a "ormula which will con%ne the power to grant

anticipatory ail within a strait1;ac3et. Jhile laying down cast1iron rules in a matter li3e

granting anticipatory ail, as the High +ourt has done, it is apt to e overloo3ed that even

udges can have ut an imper"ect awareness o" the needs o" new situations. i"e is never

static and every situation has to e assessed in the conte-t o" emerging concerns as and

when it arises. There"ore, even i" this +ourt were to "rame a G+ode "or the grant o"

anticipatory ailG, which really is the usiness o" the legislature, it can at est "urnish

road guidelines and cannot compel lind adherence. !n which case to grant ail and in which

to re"use it is, in the very nature o" things, a matter o" discretion. But apart "rom the "act

that the 5uestion is inherently o" a 3ind which calls "or the use o" discretion "rom case to

case, the legislature has, in terms e-press, relegated the decision o" that 5uestion to

the discretion o" the +ourt, y providing that it may grant ail Ki" it thin3s %tK. The concern

the +ourts generally is to preserve their discretion without meaning to ause it. !t will

e strange i" the +ourt e-hiits concern to stulti"y the discretion con"erred upon the +ourts

y law. 4DC =1HP =iscretion, there"ore, ought to e permitted to remain in the domain o" discretion, to e

e-ercised o;ectively and open to correction y the higher courts. The sa"ety o"

discretionary power lies in this twin protection which provides a sa"eguard against its

ause. 4D0 &1>P

/. !t is true that the "unctions o" ;udiciary and the police are in a sense complementary

and not overlapping. An order o" anticipatory ail does not in any way, directly or

indirectly, ta3e away "rom the police their right to investigate into charges made

or to e made against the person released on ail. !n "act, two o" the usual conditions

incorporated in a direction issued under section 4*87/6 are those recommended in )u1

section 767i6 and 7ii6 which re5uire the applicant to co1operate with the police and to assure

that he shall not tamper with the witnesses during and a"ter the investigation.Jhile granting relie" under )ection 4*87/6, appropriate conditions can e imposed under

)ection 4*876, so as to ensure an uninterrupted investigation. One o" such conditions can

even e that in the event o" the police ma3ing out a case o" a li3ely discovery under )ection

0 o" the ?vidence Act, the person released on ail shall e liale to e ta3en in police

custody "or "acilitating the discovery. Besides, i" and when the occasion arises, it may e

possile "or the prosecution to claim the ene%t o" )ection 0 o" the ?vidence Act in

regard to a discovery o" "acts made in pursuance o" in"ormation supplied y a person

released on ail. 4D9 =, 4/D A1=P @ing ?mperor v. @hwa;a :aIir Ahmed, 0/ !.A., D*, )tate o"


21/37

and regarding the 5uestion whether the conditions mentioned in )ection 4*0 should e read

into section 4*8 cannot, there"ore e treated as the ratio o" the decision. 4/* +1=, ?P

The power con"erred y section 4*8 is o" an Ke-tra ordinaryK

character only in the sense that it is not ordinarily resorted to li3e the power con"erred y

sections 4*0 and 4*9. 4/* ?1&P Bal +hand ain v. )tate o" (.., /900P ).+.'. E,

distinguished.

/4. )ince denial o" ail amounts to deprivation o" personal lierty, the +ourt

should lean against the imposition o" unnecessary restrictions on the scope o" section

4*8, especially when no such restrictions have een imposed y the legislature in the terms

o" that section. )ection 4*8 is a procedural provision which is concerned with the personal

lierty o" the individual, who is entitled to the ene%t o" the presumption o" innocence since

he is not, on the date o" his application "or anticipatory ail, convicted o" the o2ence in

respect o" which he see3s ail. An over1generous in"usion o" constraints and conditions

which are not to e "ound in )ection 4*8 can ma3e its provisions

constitutionally vulnerale since the right to personal "reedom cannot e made to depend on

compliance with unreasonale restrictions. 4/* &1H, 4/4 AP (ane3a >andhi v. 1H, 4/C A1+P

)tate v. +aptain ag;it )ingh, /9CP * ).+.'. C, "ollowed.

Adri 7haran 7as Vs. State of West Bengal+oram A'!!T A)AMAT, ).H. @AA=!A

/NDNDDE

DDE A!' /DE0, DDE7 6)+'/88 , DDE74 6)++*D* , DDE7 6)+A?/ , DDE7 6TE48

S&+Gect
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+ode o" +riminal rocedure, /90*

)ections 4*81rotection under1)cope o"1+omplaint under ).4DC, 4C0, 4C8, 40/ and 4D !+1

rayer y accused "or protection in terms o" ).4*81On "acts, held the prayer was rightly

re;ected y High +ourt.

)ection 4*81Application under1Held egality o" proposed arrest cannot e gone into in such

an application1!nterim order restraining arrest, i" passed while dealing with an application

under ).4*8, will amount to inter"erence in the investigation, which cannot e done under

).4*8.

)ections 4*8 and 4*91=istinction etween1=iscussed.

+omplaint was lodged alleging commission o" various o2ences more particularly those under

)ections 4DC, 4C0, 4C8, 40/ and 4D !+ against the appellant and %ve others. rayer was

made to the udicial (agistrate "or ta3ing action in terms o" )ection /EC7*6 +r+ who directedthe o$cer1in1charge o" the concerned olice )tation to investigate a"ter ta3ing the petition o"

complaint as &!' and to sumit report e"ore the )u1=ivisional udicial (agistrate 7)=(6.

The accused %led application under )ection 4*8 +r+ e"ore High +ourt alleging that they

were victims o" a conspiracy. High +ourt declined to accept the prayer made y appellant1

accused to e-tend the protection availale under )ection 4*8 +r+ . Hence the present

appeal.

-ead 5otes

=isposing o" the appeal, the +ourt

H?= /. The "acility which )ection 4*8 o" the +ode gives is generally re"erred to asFanticipatory ailG. The distinction etween an ordinary order o" ail and an order under

)ection 4*8 o" the +ode is that whereas the "ormer is granted a"ter arrest, and there"ore

means release "rom custody o" the olice, the latter is granted in anticipation o" arrest and is

there"ore e2ective at the very moment o" arrest. /9*1&, HL /941AP >ur Ba3sh )ingh v. )tate o"

un;a, /98DP )++ ECE, relied on. Balachand ain v. )tate o" (adhya radesh, A!' 7/9006

)+ *CC, re"erred to.

. The power e-ercisale under )ection 4*8 +r+ is somewhat e-traordinary in character and

it is only in e-ceptional cases where it appears that the person may e "alsely implicated or

where there are reasonale grounds "or holding that a person accused o" an o2ence is not

li3ely to otherwise misuse his lierty then power is to e e-ercised under )ection 4*8. The

power eing o" important nature it is entrusted only to the higher echelons o" ;udicial "orums,

i.e. the +ourt o" )ession or the High +ourt. !t is the power e-ercisale in case o" an anticipated

accusation o" non1ailale o2ence. The o;ect which is sought to e achieved y )ection 4*8

o" the +ode is that the moment a person is arrested, i" he has already otained an order "rom

the +ourt o" )ession or High +ourt, he shall e released immediately on ail without eing

sent to ;ail. /941=1&P


23/37

*./. )ections 4*8 and 4*9 operate in di2erent %elds. !t was held in :irmal eet @aurGs case and

)unita =eviGs case that "or ma3ing an application under )ection 4*9 the "undamental

re5uirement is that the accused should e in custody. As oserved in )alauddinGs case the

protection in terms o" )ection 4*8 is "or a limited duration during which the regular +ourt has

to e moved "or ail. Oviously, such ail is ail in terms o" )ection 4*9 o" the +ode,

mandating the applicant to e in custody. Otherwise, the distinction etween orders under

)ections 4*8 and 4*9 shall e rendered meaningless and redundant. /941&L /901A1BP

)alauddin Adulsamad )hai3h v. )tate o" (aharashtra, A!' 7/99C6 )+ /D4 and :iran;an

)ingh and Anr. v. raha3ar 'a;aram @harote and Ors., A!' 7/98D6 )+ 08E, relied on.

@.. Qerma v. )tate and Anr., 7/99C6 0 )+A? DL :irmal eet @aur v. )tate o" (.. and Anr.,

DD4P 0 )++ EE8 and )unita =evi v. )tate o" Bihar and Anr., +riminal Appeal arising out o"

) 7+rl.6 :o. 4CD/ o" DD* disposed o" y )upreme +ourt on C./.DD4, re"erred to.

*.. !" the protective umrella o" )ection 4*8 is e-tended eyond what was laid down in

)alauddinGs case the result would e clear y1passing o" what is mandated in )ection 4*9regarding custody. !n other words, till the applicant avails remedies upto higher +ourts, the

re5uirements o" )ection 4*9 ecome dead letter. :o part o" a statute can e rendered

redundant in that manner. /901+1=P

4./. )ection 4*8 is a procedural provision which is concerned with the personal lierty o" an

individual who is entitled to plead innocence, since he is not on the date o" application "or

e-ercise o" power under )ection 4*8 o" the +ode convicted "or the o2ence in respect o" which

he see3s ail. The applicant must show that he has Freason to elieveG that he may e

arrested in a non1ailale o2ence. rounds on which the elie" on the applicant is ased that he may e

arrested in non1ailale o2ence must e capale o" eing e-amined. /901=1&P

4.. The provisions cannot e invo3ed a"ter arrest o" the accused. A lan3et order should not

e generally passed. !t fows "rom the very language o" the section which re5uires the

applicant to show that he has reason to elieve that he may e arrested. :ormally a direction

should not issue to the e2ect that the applicant shall e released on ail Kwhenever arrested

"or whichever o2ence whatsoeverK. )uch Flan3et orderG should not e passed as it would

serve as a lan3et to cover or protect any and every 3ind o" allegedly unlaw"ul activity. An

order under )ection 4*8 is a device to secure the individualGs liertyL it is neither a passport to

the commission o" crimes nor a shield against any and all 3inds o" accusations li3ely or

unli3ely. /901>1HL /981A1BP

E. An application under )ection 4*8 o" the +ode can e moved only y a person who has not

already een arrested. Once he is arrested, his remedy is to move the concerned +ourt either

under )ection 4*0 or )ection 4*9 o" the +ode. !n the very nature o" the direction which the


24/37

+ourt can issue under )ection 4*8 o" the +ode, it is clear that the direction is to e issued

only at the pre1arrest stage. The direction ecomes operative only a"ter arrest. The condition

precedent "or the operation o" the direction issued is arrest o" the accused. This eing so, the

irresistile in"erence is that while dealing with an application under )ection 4*8 o" the +ode

the +ourt cannot restrain arrest. /981?1&P

C. The legality o" the proposed arrest cannot e gone into in an application under )ection 4*8

o" the +ode. The role o" the investigator is well1de%ned and the ;urisdictional scope o"

inter"erence y the +ourt in the process o" investigation is limited. The +ourt ordinarily will

not inter"ere with the investigation o" a crime or with the arrest o" accused in a cogniIale

o2ence. An interim order restraining arrest, i" passed while dealing with an application under

)ection 4*8 o" the +ode will amount to inter"erence in the investigation, which cannot, at any

rate, e done under )ection 4*8 o" the +ode. /991A1BP

0. Jhile upholding the re;ection o" the prayer in terms o" )ection 4*8 o" the +ode, no opinion

is e-pressed on merits o" the case. Jhen the ail application is moved in terms o" )ection 4*9o" the +ode e"ore the concerned +ourt the same shall e considered in its proper perspective

in accordance with law. The )=( would do well to dispose it o" on the day it is %led. !n case

the prayer "or ail is re;ected and an application "or ail is %led e"ore the =istrict and

)essions udge, the said +ourt would do well to dispose o" the application as early as

practicale. !" it is %led at a later date, the =istrict and )essions udge would ma3e an e2ort to

dispose it o" within three days o" its %ling. /991+1?P

Si&/i 1&%& S&k&r A*&' .. A$**&' !. T$ S'&'$ "

M&&r&!'r& ..R$!"$'Se/tember 74 +))8

9(r. ARI'IT PASAYAT: 9 (r. M5;5N(A;AM SHARMA:

(r. ARI'IT PASAYAT4 '.

A large n0mber o cases in recent times coming beore this Co0rt in-ol-ing ra/e and

m0rder o %o0ng girls4 is a matter o concern. I '$ i!'&' c&!$ ic'i5 #&! &)"u' i$ %$&r! " &($ #"

#&! '$ ic'i5 " !$u&* &!!&u*' & &i5&* *u!' " '$ &ccu!$-&$**&'7 !$ #&! "' "*% r&$ )u' #&!

5ur$r$ )% '$ &ccu!$ &$**&'.

The Learned Second Additional '0dge4 P0ne tried the a//ellant or oences /0nishable

0nder Sections C"$?@, "r c"ir5&'i" " $&' !$'$c$. T$ &$&*! #$r$ $&r

'"($'$r, '$ r$$r$c$ #&! &cc$'$ )u' '$ &$&* i*$ )% '$ &ccu!$ #&! i!5i!!$.

T$ Pr"!$cu'i" $r!i"

Shi-a?i!a//ellant 9hereinater reerred to as the @acc0sed: is an ed0cated /erson was ser-ing as

teacher at P0ne in the %ear *,8. He was sta%ing with his mother and sister near the ho0se o


25/37

Hemlata 9hereinater reerred to as the @deceased:4 a tin% girl who had not seen ten s0mmers in

lie. The acc0sed is a married man and has three children. His wie and children were not residing

with him. The acc0sed was Bnown to the deceased and her amil%. The deceased and her amil%

0sed to sometime gi-e him bread. The deceased was st0d%ing in 7th standard. She has two sisters

9P$ 8:. Her mother 9P$ +: was worBing as a maid. All o them were sta%ing with their

grandmother 9P$ =:. The ather o the deceased was not sta%ing with them on acco0nt o strained

relationshi/ between him and the mother o deceased. The incident in 60estion occ0rred on *th

'an0ar%4 +))+. "n that da% there was esti-al o MaBarsanBranti. At abo0t **.


26/37

)$$ i5"!$.

The deceased was th0s a hel/less /oor girl o tender age. She had no /rotection o the

ather. She was4 thereore4 a -0lnerable girl.

$hen the mother o deceased came bacB4 her mother told her that the deceased had gone

to

bring 0el wood along with the acc0sed. Since the deceased did not come bacB the% started

searching or her. The grandmother o the deceased ga-e a missing com/laint to /olice on

*.*.+))+.

So ar as the last seen as/ect is concerned it is necessar% to taBe note o two decisions o

this co0rt. In S'&'$ " .P. . S&'i! 200D =3@ SCC ::4it was noted as ollows&

D++. The last seen theor% comes into /la% #$r$ '$ 'i5$-(& )$'#$$ '$ "i' " 'i5$

#$ '$ &ccu!$ & '$ $c$&!$ #$r$ !$$ *&!' &*i$ & #$ '$ $c$&!$ i! "u $&

i! !" !5&** '&' "!!i)i*i'% " &% $r!" "'$r '& '$ &ccu!$ )$i( '$ &u'"r " '$ cri5$

)$c"5$! i5"!!i)*$.It wo0ld be diic0lt in some cases to /ositi-el% establish that the deceased

was last seen with the acc0sed when there is a long ga/ and /ossibilit% o other /ersons coming in

between e2ists. In the absence o an% other /ositi-e e-idence toconcl0de that the acc0sed and thedeceased were last seen together4 it wo0ld be haEardo0s to come to a concl0sion o g0ilt in those

cases. I 'i! c&!$ '$r$ i! "!i'i$ $i$c$ '&' '$ $c$&!$ & '$ &ccu!$ #$r$ !$$

'"($'$r )% #i'$!!$! PW!. 3 & D, i &i'i" '" '$ $i$c$ " PW-2.F

In R&5r$% R&/$!k&& R$% . S'&'$ " A.P. 2006 =:0@ SCC :


27/37

State o ;arnataBa 9AIR *,8< SC :F State o 5.P. -. S0Bhbasi and "rs. 9AIR *,87 SC *++:F

alwinder Singh -. State o P0n?ab 9AIR *,8= SC


28/37

other reasonable h%/othesis than that o his g0ilt4 97: i there be an% reasonable do0bt o the g0ilt

o the acc0sed4 he is entitled as o right to be ac60ittedD.

A reerence ma% be made to a later decision in S&r& Biric& S&r& . S'&'$ "

M&&r&!'r&, =AIR :;84 SC :622@. Therein4 while dealing with circ0mstantial e-idence4 it has

been held that "u! #&! " '$ r"!$cu'i" '" r"$ '&' '$ c&i i! c"5*$'$ & '$

iir5i'% " *&cu& i r"!$cu'i" c&"' )$ cur$ )% &*!$ $$c$ "r *$&. The conditions

/recedent in the words o this Co0rt4 beore con-iction co0ld be based on circ0mstantial e-idence4

m0st be 0ll% established. The% are&

9*: the circ0mstances rom which the concl0sion o g0ilt is to be drawn sho0ld be

0ll% established. T$ circu5!'&c$! c"c$r$ 5u!' "r !"u* & "' 5&% )$ $!'&)*i!$7

9+: the acts so established !"u* )$ c"!i!'$' "*% #i' '$ %"'$!i! " '$ (ui*'

" '$ &ccu!$, '&' i! '" !&%, '$% !"u* "' )$ $*&i&)*$ " &% "'$r %"'$!i!

$c$' '&' '$ &ccu!$ i! (ui*'%7

9


29/37

&r"ri&'$ ui!5$'.

Similar -iew has also been e2/ressed in Ra-?i -. State o Ra?asthan4 9*,, 9+: SCC *=7:. It

has been held in the said case that it is the nat0re and gra-it% o the crime b0t not the criminal4

which are germane or consideration o a//ro/riate /0nishment in a criminal trial. The

/0nishment to be awarded or a crime m0st not be irrele-ant b0t it sho0ld conorm to and be

consistent with the atrocit% and br0talit% with which the crime has been /er/etrated.

These as/ects ha-e been elaborated in State of /.. v. /!nna Cho!"e #2005 (2)SCC $2.

In /a=hhi Sin6h v. State of !nja" #$+8% (%) SCC 40in /ara "$$r? &*!"

r$uir$ '" )$ '&k$ i'" c"!i$r&'i" &*"( #i' '$ circu5!'&c$! " '$ >cri5$?.

9iii: Li$ i5ri!"5$' i! '$ ru*$ & $&' !$'$c$ i! & $c$'i". In other wordsdeath sentence m0st be im/osed onl% when lie im/risonment a//ears to be an altogether

inade60ate /0nishment ha-ing regard to the rele-ant circ0mstances o the crime4 and /ro-ided4

and onl% /ro-ided4 the o/tion to im/ose sentence o im/risonment or lie cannot be

conscientio0sl% e2ercised ha-ing regard to the nat0re and circ0mstances o

the crime and all the rele-ant circ0mstances.

9i-: A balance sheet o aggra-ating and mitigating circ0mstances has to be drawn 0/ and

in doing so the mitigating circ0mstances ha-e to be accorded 0ll weightage and a ?0st balance has

to be str0cB between the aggra-ating and the mitigating circ0mstances beore the o/tion is

e2ercised.D

The /osition was again reiterated in ;evender a Sin6h v. State of 3C of ;ehi

#2002 (5)SCC 2%4 > (SCC . 2$' ara58) D78. 3rom achan Singh s case 9s0/ra: and Machhi Singhs case 9s0/ra: the /rinci/le c0lled

o0t is that when the collecti-e conscience o the comm0nit% is so shocBed4 that it will e2/ect the

holders o the ?0dicial /ower centre to inlict death /enalt% irres/ecti-e o their /ersonal o/inion

as regards desirabilit% or otherwise o retaining death /enalt%4 the same can be awarded. It was

obser-ed&

The comm0nit% ma% entertain s0ch sentiment in the ollowing circ0mstances&

9*: $hen the m0rder is committed in an $'r$5$*% )ru'&*, (r"'$!u$, i&)"*ic&*,

r$"*'i(, "r &!'&r*% 5&$r so as to aro0se intense and e2treme indignation o the

comm0nit%.

9+: $hen the m0rder is committed or a moti-e which e-inces '"'&* $r&i'%

& 5$&$!!7 $.(. 5ur$r )% ir$ &!!&!!i "r 5"$% "r r$#&r7 "r c"*-)*""$

5ur$r "r (&i! " & $r!" i!->-i! #"5 '$ 5ur$r$r i! i & "5i&'i( "!i'i" "r i &

"!i'i" " 'ru!'7 "r 5ur$r i! c"55i''$ i '$ c"ur!$ "r )$'r&%&* " '$ 5"'$r*&.

9)ri$ )uri(? "r >"#r% $&'!? "r #$ 5ur$r i! c"55i''$ i "r$r '" r$5&rr%

"r '$ !&k$ " $'r&c'i( "#r% "c$ &(&i "r '" 5&rr% &"'$r #"5& " &cc"u' "


30/37

i&'u&'i".

9: $hen the crime is enormo0s in /ro/ortion. 3or instance #$ 5u*'i*$ 5ur$r!, !&%

" &** "r &*5"!' &** '$ 5$5)$r! " & &5i*% "r & *&r($ u5)$r " $r!"! " & &r'icu*&r

c&!'$, c"55ui'%, "r *"c&*i'%, &r$ c"55i''$.

97: $hen '$ ic'i5 " 5ur$r i! & i"c$' ci*, "r & $**$!! #"5& "r "* "r

iir5 $r!" "r & $r!" i!->-i! #"5 '$ 5ur$r$r i! i & "5i&'i( "!i'i", "r &

u)*ic i(ur$ ($$r&**% *"$ & r$!$c'$ )% '$ c"55ui'%.F

The /lea that in a case o circ0mstantial e-idence death sho0ld not be awarded is

witho0t an% logic. I '$ circu5!'&'i&* $i$c$ i! "u '" )$ " ui5$&c&)*$ c&r&c'$r i

$!'&)*i!i( '$ (ui*' " '$ &ccu!$, '&' "r5! '$ "u&'i" "r c"ic'i". T&' &!

"'i( '" " #i' '$ u$!'i" " !$'$c$ &! &! )$$ ")!$r$ )% 'i! C"ur' i &ri"u!

c&!$! #i*$ &ri( $&' !$'$c$. T$ 5i'i(&'i( circu5!'&c$! & '$ &((r&&'i(

circu5!'&c$! &$ '" )$ )&*&c$. I '$ )&*&c$ !$$' " !uc circu5!'&c$!, '$ &c' '&'

'$ c&!$ r$!'! " circu5!'&'i&* $i$c$ &! " r"*$ '" *&%. I &c' i 5"!' " '$ c&!$!

#$r$ $&' !$'$c$ &r$ &r$ "r r&$ & 5ur$r & '$ *ik$, '$r$ i! r&c'ic&**% "

!c"$ "r &i( & $%$ #i'$!!. T$% &r$ "' c"55i''$ i '$ u)*ic i$#.0t -er% nat0re othings in s0ch cases4 the a-ailable e-idence is circ0mstantial e-idence. I the said e-idence has

been o0nd to be credible4 cogent and tr0stworth% or the /0r/ose o recording con-iction4 to treat

that e-idence as a mitigating circ0mstance4 wo0ld amo0nt to consideration o an irrele-ant as/ect.

The /lea o learned Amic0s C0riae that the con-iction is based on circ0mstantial e-idence and4

thereore4 the death sentence sho0ld not be awarded is clearl% 0ns0stainable.

The case at hand alls in the rarest o rare categor%. The circ0mstances highlighted abo-e4

establish the de/ra-ed acts o the acc0sed4 and the% call or onl% one sentence4 that is death

sentence.


31/37

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RA;HI 5(HI

B0mar

'agadishwar

Bishore

'ATIN P"PAT

anand

R.; Nanda

PS (hingra4
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PraBash Yed

a/arnaBanam

1ar0n Singh

Ad-ocate Ni

CS Santosh

Ba-Bsat%ana

eewacs


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( hattacha

Ra?esh Sri-

1isheshwar

AS ........

1 R SHR"33

RA;HI 5(HI
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Ruling - Section 438 of Cr.P.c.

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Transcript of Ruling - Section 438 of Cr.P.c.