1
CRIMINAL PROCEDURE CODE
ANTICIPATORY BAIL Gurbaksh Singh Sibbia v The State of Punjab AIR 1980
Submitted to: r! Sangeeta "ha##a $Prof! %I&S' Panjab %niversit(' )handigarh*
Submitted "(: Somnath Ta(a# Ta(a# "!A!&&" $+ons!* Ro## ,o!:9-.1/ -th Sem
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I have written this project titled 6A,TI)IPATR7 "AI& (Gurbaksh Singh Sibbia v The State of Punjab AIR 1!"# under the supervision of 6R! SA,G33TA "+A&&A A$% 6R! A4RITPA& A%R facult& of 'niversit& Institute of egal Studies) Panjab
'niversit&) *handigarh+ The valuable suggestions of her supervision not onl& helped ,e i,,ensel& in ,aking this work) but also in developing an anal&tical approach in work+ I found no words to e-press ,& sense of gratitude for .%IR/*T0R of our institute for encourage,ent at ever& step + I a, e-tre,el& grateful to librarian and librar& staff of the institute for the support and cooperation e-tended ti,e to ti,e+ Also) ,& Parents and 2riends contribution) support and cooperation in this work is be&ond words+
So,nath Ta&al Roll no+ 3.14
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TA"&3 ),T3,TS: 555555555555555555555555555555555555555555555555555555555555555555555555555 1! Introdution 5 4eaning 5 The &ega# Position in India 5 ;udiia# Trend /8 of )rP) 19?/ /! Gurbaksh Singh Sibbia v The State of Punjab AIR 1980 >! Siddharam Sat#inga==a 4hetre v! State of 4aharashtra and rs! -! Reent ase : Somnath "harti )ase @! )on#usion
4 INTRODUCTION : 4eaning of "ai#
5ail) in law) ,eans procure,ent of release fro, prison of a person awaiting trial or an appeal) b& the deposit of securit& to ensure his sub,ission at the re6uired ti,e to legal authorit&+ The ,onetar& value of the securit&) known also as the bail) or) ,ore accuratel&) the bail bond) is set b& the court having jurisdiction over the prisoner+ The securit& ,a& be cash) the papers giving title to propert&) or the bond of private persons of ,eans or of a professional bonds,an or bonding co,pan&+ 2ailure of the person released on bail to surrender hi,self at the appointed ti,e results in forfeiture of the securit&+ The &ega# Position in India
The *ri,inal Procedure *ode) 174 (*r+P+*+ hereinafter#) does not define bail) although the ter,s bailable offence and non8bailable offence have been defined in section 9(a# *r+P+*+ as follows: ; 5ailable offence ,eans an offence which is shown as bailable in the 2irst Schedule or which is ,ade bailable b& an& other law for the ti,e being enforce) and non8bailable offence ,eans an& other offence;+ 2urther) ss+ <4= to <3" set out the provisions for the grant of bail and bonds in cri,inal cases+ The a,ount of securit& that is to be paid b& the accused to secure his release has not been ,entioned in the *r+P+*+1 ;udiia# Trend
An overview of the following cases highlights the adverse condition of the poor with regard to the unjust bail s&ste, in India+ In State of Rajasthan v 5alchand) the accused was convicted b& the trial court+ >hen he went on appeal the ?igh *ourt) it ac6uitted hi,+ The State went on appeal to the ?on@ble Supre,e *ourt under Art+ 14= of the *onstitution through a special leave petition+ The accused was directed to surrender b& the court+ ?e then filed for bail+ It was then for the first ti,e that ustice Brishna I&er raised his voice against this unfair s&ste, of bail ad,inistration+ ?e said that though while the s&ste, of pecuniar& bail has a tradition behind it) a ti,e for rethinking has co,e+ It ,a& well be that in ,ost cases an undertaking would serve the purpose+
1 http:CCwww+legalservicesindia+co,CarticleCarticleCfir8119=81+ht,l)
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Anticipatory Bail : 4eaning
Anticipator& 5ail is the best kind of bail for all cri,inal cases including dowr& cases+ If &ou get this bail) then &ou will not have to spend a da& in custod& until the da& when &our case is finall& decided+ This bail is applied for in anticipation of arrest+ If &ou have reason to believe that &ou ,a& be arrested for a cri,e which &ou did not co,,it) then &ou have the right to appl& for this t&pe of bail+ 9 Setion >/8 of )rP) 19?/
5efore power under sub8section (1# of section <4! of the *ode is e-ercised the *ourt ,ust be satisfied that the applicant invoking the provision has reason to believe that he is likel& to be arrested for a non8bailable offence and that belief ,ust be founded on reasonable grounds+ Dere .fear is not belief) for which reason) it is not enough for the applicant to show that he has so,e sort of vague apprehension that so,eone is going to ,ake an accusation against hi,) in pursuance of which he ,a& be arrested+ The grounds on which the belief of the applicant is based that he ,a& be arrested for a non8bailable offence) ,ust be capable of being e-a,ined b& the *ourt objectivel&+4 Section <4! : (1# >here an& person has reason to believe that he ,a& be arrested on accusation of having co,,itted a non8bailable offence) he ,a& appl& to the ?igh *ourt or the *ourt of Sessions for a direction under this Section that in the event of such arrest he shall be released on bailE and that *ourt ,a&) after taking into consideration) inter alia) the following factors) na,el&: (i# The nature and gravit& of the accusationE (ii# The antecedents of the applicant including the fact as to whether he has previousl& undergone i,prison,ent on conviction b& a *ourt in respect of an& cogniFable offenceE (iii# The possibilit& of the applicant to flee fro, justiceE and
2 http://lawstudentshelpline.co/inde!.php/c"iinal#p"ocedu"e#code/2# 3 Pillai)B+$+ *handrasekharan) .*ri,inal Procedure) ed+=+) /astern book co,pan&) ucknow
$ (iv# >here the accusation has been ,ade with the object of injuring or hu,iliating the applicant b& having hi, so arrested) (9#>hen the ?igh *ourt or the *ourt of Session ,akes a direction under sub8 section (1#) it ,a& include such conditions in such directions in the light of the facts of the particular case) as it ,a& think fit) including8 (i# a condition that the person shall ,ake hi,self available for interrogation b& a police officer as and when re6uiredE (ii# a condition that the person shall not) directl& or indirectl&) ,ake an& induce,ent) threat or pro,ise to an& person ac6uainted with the facts of the case so as to dissuade hi, fro, disclosing such facts to the *ourt or to an& police officerE (iii# a condition that the person shall not leave India without the previous per,ission of the *ourtE (iv# such other condition as ,a& be i,posed under sub8 section (4# of section <47) as if the bail were granted under that section<
Gurbaksh Singh Sibbia v The State of Punjab AIR 1980 : The appellant herein) Shri Gurbaksh Singh Sibbia) was a Dinister of Irrigation and Power in the *ongress Dinistr& of the Govern,ent of Punjab+ Grave allegations of political corruption were ,ade against hi, and others whereupon) applications were filed in the ?igh *ourt of Punjab and ?ar&ana under Section <4!) pra&ing that the appellants be directed to be released on bail) in the event of their arrest on the aforesaid charges+ *onsidering the i,portance of the ,atter) a learned Single udge referred the applications to a 2ull 5ench) which b& its judg,ent dated Septe,ber 14) 177 dis,issed the,+ /-planation of Antii=ator( bai# given b& the Supre,e *ourt in $Gurbaksh Singh Sibbia v The State of Punjab AIR 1980 S%PR343 )%RT 1@/<*! A person can appl&
for Antii=ator( bai# even after the 2IR is filed) but not if the person has been arrested
4 Belkar R++) *ri,inal Procedure) /astern 5ook *o,pan&) 9"1<+
% @Section <4! (1# of the *ode la&s down a condition) which has to be satisfied before anticipator& bail can be granted+ The applicant ,ust show that he has .reason to believeH that he ,a& be arrested for a non8bailable offence+ The use of the e-pression .reason to believe shows that the belief that the applicant ,a& be so arrested ,ust be founded on reasonable grounds+ Thirdl&) the filing of a 2irst Infor,ation Report is not a condition precedent to the e-ercise of the power under S+ <4!+ The i,,inence of a likel& arrest founded on a reasonable belief can be shown to e-ist even if an 2IR is not &et file+ 2ourthl&) anticipator& bail can be granted even after in 2IR is filed) so long as the applicant has not been arrested+ After arrest) the accused ,ust seek his re,ed& under S+ <47 or Section <4 of the *ode) if he wants to be released on bail in respect of the offence or offenses for which he is arrested+ In Gurbaksh Singh Sibbia) the *onstitution 5ench was called upon to consider correctness
or otherwise of principles laid down b& the 2ull 5ench of ?igh *ourt of Punjab ?ar&ana in Gurbaksh Singh Sibbia s+ State of Punjab+ The 2ull 5ench of the ?igh *ourt su,,ariFed the law relating to anticipator& bail as reflected in Section <4! of the *ode and laid down eight principles which were to be kept in view while e-ercising discretionar& power to grant anticipator& bail+ 3 The *ourt felt that wide discretionar& power conferred b& the egislature on the higher echelons in the cri,inal justice deliver& s&ste, cannot be put in the for, of straight8jacket rules for universal application as the 6uestion whether to grant bail or not depends for its answer upon a variet& of circu,stances) the cu,ulative effect of which ,ust enter into the judicial verdict+ A circu,stance which) in a given case) turns out to be conclusive) ,a& or ,a& not have an& significance in another case+ >hile cautioning against i,position of unnecessar& restrictions on the scope of the Section) because) in its opinion) over generous infusion of constraints and conditions) which were not to be found in Section <4! of the *ode) could ,ake the provision constitutionall& vulnerable) since the right of personal freedo,) as enshrined in Article 91 of the *onstitution) cannot be ,ade to depend on 5 http:CCwww+legalservicesindia+co,CarticleCarticleCfir8119=81+ht,l)
& co,pliance with unreasonable restrictions) the *onstitution 5ench laid down the following guidelines) which the *ourts are re6uired to keep in ,ind while dealing with an application for grant of anticipator& bail:
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i# Though the power conferred under Section <4! of the *ode can be described as of an e-traordinar& character) but this does not justif& the conclusion that the power ,ust be e-ercised in e-ceptional cases onl& because it is of an e-traordinar& character+ $onetheless) the discretion under the Section has to be e-ercised with due care and circu,spection depending on circu,stances justif&ing its e-ercise+ ii# 5efore power under sub8section (1# of Section <4! of the *ode is e-ercised) Jthe *ourt ,ust be satisfied that the applicant invoking the provision has reason to believe that he is likel& to be arrested for a non8bailable offence and that belief ,ust be founded on reasonable grounds+ Dere ;fear; is not belief) for which reason) it is not enough for the applicant to show that he has so,e sort of vague apprehension that so,e one is going to ,ake an accusation against hi,) in pursuance of which he ,a& be arrested+ The grounds on which the belief of the applicant is based that he ,a& be arrested for a non8bailable offence) ,ust be capable of being e-a,ined b& the *ourt objectivel&+ Specific events and facts ,ust be disclosed b& the applicant in order to enable the *ourt to judge of the reasonableness of his belief) the e-istence of which is the sine 6ua non of the e-ercise of power conferred b& the Section+ iii# The observations ,ade in 5alchand ain@s case) regarding the nature of the power conferred b& Section <4! and regarding the 6uestion whether the conditions ,entioned in Section <47 should be read into Section <4! cannot be treated as conclusive on the point+ There is no warrant for reading into Section <4!) the conditions subject to which bail can be granted under Section <47(1# of the *ode and therefore) anticipator& bail cannot be refused in respect of offences like cri,inal breach of trust for the ,ere reason that the punish,ent provided for is i,prison,ent for life+ *ircu,stances ,a& broadl& justif& the grant of bail in such cases too) though of course) the *ourt is free to refuse anticipator& bail in an& case if there is ,aterial before it justif&ing such refusal+ iv# $o blanket order of bail should be passed and the *ourt which grants anticipator& bail ,ust take care to specif& the offence or the offences in respect of which alone the order will
$ 'up"a not 2
( be effective+ >hile granting relief under Section <4!(1# of the *ode) appropriate conditions can be i,posed under Section <4!(9# so as to ensure an uninterrupted investigation+ 0ne such condition can even be that in the event of the police ,aking out a case of a likel& discover& under Section 97 of the /vidence Act) the person released on bail shall be liable to be taken in police custod& for facilitating the recover&+ 0therwise) such an order can beco,e a charter of lawlessness and a weapon to stifle pro,pt investigation into offences which could not possibl& be predicated when the order was passed+ v# The filing of 2irst Infor,ation Report (2IR# is not a condition precedent to the e-ercise of power under Section <4!+ The i,,inence of a likel& arrest 1 founded on a reasonable belief can be shown to e-ist even if an 2IR is not &et filed+ vi# An anticipator& bail can be granted even after an 2IR is filed so long as the applicant has not been arrested+ vii# The provisions of Section <4! cannot be invoked after the arrest of the accused+ After arrest) the accused ,ust seek his re,ed& under Section <47 or Section <4 of the *ode) if he wants to be released on bail in respect of the offence or offences for which he is arrested+ viii# An interi, bail order can be passed under Section <4! of the *ode without notice to the Public Prosecutor but notice should be issued to the Public Prosecutor or to the Govern,ent advocate forthwith and the 6uestion of bail should be re8e-a,ined in the light of respective contentions of the parties+ The ad8interi, order too ,ust confor, to the re6uire,ents of the Section and suitable conditions should be i,posed on the applicant even at that stage+ i-# Though it is not necessar& that the operation of an order passed under Section <4!(1# of the *ode be li,ited in point of ti,e but the *ourt ,a&) if there are reasons for doing so) li,it the operation of the order to a short period until after the filing of 2IR in respect of the ,atter covered b& the order+ The applicant ,a&) in such cases) be directed to obtain an order of bail under Section <47 or <4 of the *ode within a reasonable short period after the filing of the 2IR+7 Arrest: If such person is thereafter arrested) and is prepared either at the ti,e of arrest or at an& ti,e while in the custod& of such officer to give bail) he shall be released on bail and the
% https://ehnat.in/anticipato")*+ail*sta)*on*a""est.htl
1, ,agistrate taking cogniFance of such offence decides that warrant should be issued against that person) he shall issue a bailable warrant in confor,it& with the direction of the court granting anticipator& bail+ Anticipator& 5ail $ot A 5lanket 0rder: The applicant ,ust show b& disclosing special facts and events that he has reason to believe) that he ,a& be arrested for a non8bailable offence so that the court ,a& take care to specif& the offence or offences in respect of which alone the order will be effective and it is not a blanket order covering all other offences+ *ancellation: An accused is free on bail as long as the sa,e is not canceled+ The ?igh *ourt or *ourt of Session ,a& direct that an& person who has been released on bail be arrested and co,,it hi, to custod& on an application ,oved b& the co,plainant or the prosecution+
Siddharam Sat#inga==a 4hetre v! State of 4aharashtra and rs! ?on@ble udges: %alveer 5handari and B+S+ Panicker Radhakrishnan ) + The Ape- *ourt in this judg,ent has widened the scope of personal libert& in the ,atter of arrest b& police and denial of right of bail to the citiFens+ In order to save legall& sanctioned libert&) the petitioner had to go up to the level of Supre,e *ourt as both at the Sessions *ourt and ?igh *ourt level) the anticipator& bail was denied to the petitioner+ 0nl& in the Supre,e *ourt) the petitioner was able to safeguard his libert& according to law as provided in the *rP*+ The Ape- *ourt in this case in Para 141 noticed that it is i,perative for ?igh *ourts through its judicial acade,ies to periodicall& organiFe workshops) s&,posiu,s) se,inars and lectures b& the e-perts to sensitiFe judicial officers) police officers and investigating officers so that the& can properl& co,prehend the i,portance of personal libert& vis8K8vis social interests+ The& ,ust learn to ,aintain fine balance between the personal libert& and the social interests+ The Ape- *ourt further added in Para 149 that the perfor,ance of the judicial officers ,ust be periodicall& evaluated on the basis of the cases decided b& the,+ In case) the& have not been able to ,aintain balance between personal libert& and societal interests)
11 the lacunae ,ust be pointed out to the, and the& ,a& be asked to take corrective ,easures in future+
"rief ats of the )ase :
The petitioner) who belongs to the Indian $ational *ongress part&) was the alleged accused in this case+ The case as disclosed in the 2irst Infor,ation Report was that Sidra,appa Patil was contesting election of the State asse,bl& on behalf of the 5harti&a anata Part&+ In the 2IR) it is incorporated that 5aburao Patil) Prakash Patil) Dahadev Patil) Dallikarjun Patil) Apparao Patil) Leshwant Patil were supporters of the *ongress and so also the supporters of the Appellant Siddhara, Dhetre and opposed to the 5P candidate+ 0n 9=++9"") around =+"" p+,+ in the evening) Sidr a,appa Patil of 5P ca,e to the village to ,eet his part& workers+ Sidra,appa Patil and part& workers thereafter went to worship and pra& at a&avva %evi@s te,ple+ After worshipping the Goddess when the& ca,e out to the asse,bl& hall of the te,ple) the political opponents belonging to the group of petitioner suddenl& ca,e rushing in their direction and loudl& shouted) ;wh& have &ou co,e to our villageM ?ave &ou co,e here to oppose our Dhetre SahebM The& asked the, to go awa& and shouted Dhetre Saheb Bi ai+ 5aburao Patil and Prakash Patil fro, the afore,entioned group of petitioner fired fro, their pistols in order to kill Sidra,appa Patil and the other workers of the 5P+ 5hi,a Shankar Bore was hit b& the bullet on his head and died on the spot+ 3 5P part& workers were also assaulted+ It is further ,entioned in the 2IR that about eight da&s ago) the petitioner Siddhara, Dhetre and his brother Shankar Dhetre had gone to the village and talked to the above,entioned part& workers and told the, that) ;if an&bod& sa&s an&thing to &ou) then &ou tell ,e+ I will send ,& ,en within five ,inutes+ Lou beat an&bod&+ %o whatever+; The petitioner applied to the ?igh *ourt for the grant of anticipator& bail which was denied to hi, b& the ?igh *ourt+ ?ence petitioner filed this Special eave Petition in the Supre,e *ourt+
)ontention$s* of the Parties :
According to the prosecution) the Appellant along with his brother instigated their part& workers which led to killing of 5hi,a Shanker Bora+ It ,a& be relevant to ,ention that the
12 alleged incident took place after eight da&s of the alleged incident of instigation+ Dr+ Shanti 5hushan) advocate for the petitioner has contended that the funda,ental principle of cri,inal jurisprudence that ever& individual is presu,ed to be innocent till he or she is found guilt& should be followed b& the court+ ?e also said that the legislature has not circu,scribed court@s discretion in an& ,anner while granting anticipator& bail) therefore) the court should not li,it the order onl& for a specified period till the charge8sheet is filed and thereafter co,pel the accused to surrender and ask for regular bail under Section <4 of *ode of *ri,inal Procedure+ 2urther he added that court should not interpret contrar& to legislative intention+ The legislature has provided wide discretion to court in the ,atter of anticipator& bail because the court has to appl& it according to the conte-t and circu,stances of each case+
eision of the )ourt :
The order of the ?igh *ourt was set aside and the appeal was allowed+ The petitioner was directed to join the investigation and full& cooperate with the investigating agenc&+ In the event of arrest the petitioner shall be released on bail on his furnishing a personal bond in the su, of Rs+ 3")"""C8 with two sureties in the like a,ount to the satisfaction of the arresting officer+
Summar( of disussion on the issues in the judgment :
The court discussed the provision of anticipator& bail in ,an& di,ensions+ The historical perspective of this provision was referred b& court in the <1st Report (Septe,ber 9<) 1=# and
13 5ench over the subse6uent decisions of 5enches of lesser strength+ Dan& cases over this issue was discussed in the instant case+!
Reent ase : Somnath "harti )ase
*ourt refuses anticipator& bail to So,nath 5harti in do,estic violence case %elhi court on 91 st Septe,ber) 9"13 refused to grant anticipator& bail to Aa, Aad,i Part& (AAP# DA So,nath 5harti in a do,estic violence and atte,pt to ,urder case filed against hi, b& his wife+ %elhi Police registered an 2IR against Dr 5harti under sections 4"7 (atte,pt to ,urder#) <!A (cruelt& towards wife#) 49< (voluntaril& causing hurt b& dangerous weapon#) <"= (cri,inal breach of trust#) 414 read with 311 (atte,pt to cause ,iscarriage without wo,an@s consent#) <9" (cheating# and 3"= (cri,inal inti,idation# of IP*+ Additional Sessions udge Sanja& Garg dis,issed 5harti@s application seeking bail) sub,itting that he was a for,er %elhi law ,inister and there was no chance that he would abscond+ ?e said two notices have alread& been issued to hi, b& the police for joining probe in the case but he was running awa& and not cooperating with the agenc&+ ?e also clai,ed that 5harti was an influencial person due to which nobod& was co,ing forward to depose against hi,+ ;The petitioner (Dr 5harti# is involved in two ,ore cases in Dalvi&a $agar); the court noted) which speak volu,es and show ;that the petitioner is not onl& violent and outrageous at ho,e but also before the public at large+; Two 2IRs were earlier registered against 5harti) including one on alleged ,olestation of African
wo,en+
?e
also
said
the
politician@s
wife
was
called
for
,ediation four ti,es but it did not help+ %is,issing his plea for protection fro, arrest in the case) the *ourt had said that being an DA) he should have shown ,ore ;generosit& and responsibilit& towards his wife and children;+
& http://www.n-a.nic.in/1,.2,'iddh2,het"e.pd0
14 +?ere *ourt refused his plea for anticipator& bail b& taking into consideration the nature and gravit& of the accusation and the fact that previousl& two 2IRs were earlier registered against 5harti) including one on alleged ,olestation of African wo,en+
),)&%SI, Section <4! is a procedural provision which is concerned with personal libert& of an individual) entitled to the benefit of the presu,ption of innocence since he is not) on the date of his application for anticipator& bail) convicted of the offence in respect of which he seeks bail+ Although the power to release on anticipator& bail can be described as of an .e-traordinar& character this would .not justify the conclusion that the power must be exercised in exceptional cases only+ It is not necessar& that the accused ,ust ,ake out a .special case for the e-ercise of the power to grant anticipator& bail+ $o straight jacket for,ula can be prescribed for universal application in cases of anticipator& bail as each case has to be considered on its own ,erits and in its facts and circu,stances+ So) It is an established principle that discretion vested in the court) in all ,atters should be e-ercised with care and circu,spection depending upon the facts and circu,stances justif&ing its e-ercise+ Si,ilarl&) the jurisdiction under section <4! *r+P+*+ should be e-ercised b& the court in a wise and careful ,anner which b& their long training and e-perience the& are ideall& suited to do+
( http://tiesondia.indiaties.co/topic/anticipato")#+ail
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"I"&IGRAP+7 : 1! Ratan#a# hiraj#a#' The )ode of )rimina# Proedure' &eBis ,eBis "utterCorth' 2adhCa' ,ag=ur' 1?th ed!' <010! ! /! Pi##ai'!,! )handrasekharan' 6)rimina# Proedure' ed!@!' 3astern book om=an(' &uknoC!
23"&IGRAP+7: 1! http:CCwww+legalservicesindia+co,CarticleCarticleCfir8119=81+ht,l) last accessed on
"4C1"C9"13) at 19:4" a+,+ I%4<< /! http:CClaw&ersupdate+co+inC'C14C!3+asp
) last accessed on "4C1"C9"13)
Saturda&) at 1:9 a+,+ >! http:CCindiankanoon+orgCdocfrag,entC14"!7=!CMfor,InputgurbakshQ9"singh
Q9"sibbia -! http://www.n-a.nic.in/1,.2,'iddh2,het"e.pd0 @! http:CCti,esofindia+indiati,es+co,CtopicCanticipator&8bail
