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Gurbaksh Singh Sibbia v The State of Punjab AIR 1980
Submitted to: Dr. Sangeeta Bhalla (Prof. UILS, Panjab University, Chandigarh)
Submitted By: Somnath Tayal B.A.LLB (Hons.) Roll No.:95/13 5th Sem
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ACKNOWLEDGEMENT ---------------------------------------------------------------------------
I have written this project titled “ANTICIPATORY BAIL (Gurbaksh Singh Sibbia v The State of Punjab AIR 1980) ” under the supervision of “DR. SANGEETA BHALLA” AND “DR. AMRITPAL KAUR” faculty of University Institute of Legal Studies, Panjab
University, Chandigarh. The valuable suggestions of her supervision not only helped me immensely in making this work, but also in developing an analytical approach in work. I found no words to express my sense of gratitude for “DIRECTOR” of our institute for encouragement at every step . I am extremely grateful to librarian and library staff of the institute for the support and cooperation extended time to time. Also, my Parents and Friends contribution, support and cooperation in this work is beyond words.
Somnath Tayal Roll no. 95/13
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TABLE OF CONTENTS: --------------------------------------------------------------------------1. Introduction
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Meaning
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The Legal Position in India
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Judicial Trend
2. Anticipatory Bail
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Meaning
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Sec. 438 of CrPC 1973
3. Gurbaksh Singh Sibbia v The State of Punjab AIR 1980 4. Siddharam Satlingappa Mhetre v. State of Maharashtra and Ors. 5. Recent case : Somnath Bharti Case 6. Conclusion
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Meaning of Bail
Bail, in law, means procurement of release from prison of a person awaiting trial or an appeal, by the deposit of security to ensure his submission at the required time to legal authority. The monetary value of the security, known also as the bail, or, more accurately, the bail bond, is set by the court having jurisdiction over the prisoner. The security may be cash, the papers giving title to property, or the bond of private persons of means or of a professional bondsman or bonding company. Failure of the person released on bail to surrender himself at the appointed time results in forfeiture of the security. The Legal Position in India
The Criminal Procedure Code, 1973 (Cr.P.C. hereinafter), does not define bail, although the terms bailable offence and non-bailable offence have been defined in section 2(a) Cr.P.C. as follows: " Bailable offence means an offence which is shown as bailable in the First Schedule or which is made bailable by any other law for the time being enforce, and non-bailable offence means any other offence". Further, ss. 436 to 450 set out the provisions for the grant of bail and bonds in criminal cases. The amount of security that is to be paid by the accused to secure his release has not been mentioned in the Cr.P.C. 1 Judicial Trend
An overview of the following cases highlights the adverse condition of the poor with regard to the unjust bail system in India. In State of Rajasthan v Balchand, the accused was convicted by the trial court. When he went on appeal the High Court, it acquitted him. The State went on appeal to the Hon'ble Supreme Court under Art. 136 of the Constitution through a special leave petition. The accused was directed to surrender by the court. He then filed for bail. It was then for the first time that Justice Krishna Iyer raised his voice against this unfair system of bail administration. He said that though while the system of pecuniary bail has a tradition behind it, a time for rethinking has come. It may well be that in most cases an undertaking would serve the purpose.
1
http://www.legalservicesindia.com/article/article/fir-1126-1.html,
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Meaning
Anticipatory Bail is the best kind of bail for all criminal cases including dowry cases. If you get this bail, then you will not have to spend a day in custody until the day when your case is finally decided. This bail is applied for in anticipation of arrest. If you have reason to believe that you may be arrested for a crime which you did not commit, then you have the right to apply for this type of bail. 2 Section 438 of CrPC 1973
Before power under sub-section (1) of section 438 of the Code is exercised the Court must be satisfied that the applicant invoking the provision has reason to believe that he is likely to be arrested for a non-bailable offence and that belief 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 vague apprehension that someone 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. 3 Section 438 : (1) Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Sessions for a direction under this Section that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter alia, the following factors, namely: (i) The nature and gravity of the accusation; (ii) The antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; (iii) The possibility of the applicant to flee from justice; and
2 3
http://lawstudentshelpline.com/index.php/criminal-procedure-code/2Pillai,K.N. Chandrasekharan, “Criminal Procedure”, ed.6., Eastern book company, Lucknow
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(iv) Where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, (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 section4
Gurbaksh Singh Sibbia v The State of Punjab AIR 1980 : 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. Explanation of Anticipatory bail given by the Supreme Court in (Gurbaksh Singh Sibbia v The State of Punjab AIR 1980 SUPREME COURT 1632). A person can apply
for Anticipatory bail even after the FIR is filed, but not if the person has been arrested
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Kelkar R.V., Criminal Procedure, Eastern Book Company, 201 4.
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'Section 438 (1) of the Code lays down a condition, which has to be satisfied before anticipatory bail can be granted. The ap plicant 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. Thirdly, the filing of a First Information Report is not a condition precedent to the exercise of the power under S. 438. The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an FIR is not yet file. Fourthly, anticipatory bail can be granted even after in FIR is filed, so long as the applicant has not been arrested. After arrest, the accused must seek his remedy under S. 437 or Section 439 of the Code, 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 Constitution Bench was called upon to consider correctness
or otherwise of principles laid down by the Full Bench of High Court of Punjab & Haryana in Gurbaksh Singh Sibbia Vs. State of Punjab. The Full Bench of the High Court summarized the law relating to anticipatory bail as reflected in Section 438 of the Code and laid down eight principles which were to be kept in view while exercising discretionary power to grant anticipatory bail. 5 The Court felt that wide discretionary power conferred by the Legislature on the higher echelons in the criminal justice delivery system cannot be put in the form of straight-jacket rules for universal application as 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. A circumstance which, in a given case, turns out to be conclusive, may or may not have any significance in another case. While cautioning against imposition of unnecessary 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 438 of the Code, could make the provision constitutionally vulnerable, since the right of personal freedom, as enshrined in Article 21 of the Constitution, cannot be made to depend on
5
http://www.legalservicesindia.com/article/article/fir-1126-1.html,
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compliance with unreasonable restrictions, the Constitution Bench laid down the following guidelines, which the Courts are required to keep in mind while dealing with an application for grant of anticipatory bail:
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i) Though the power conferred under Section 438 of the Code can be described as of an extraordinary character, but this does not justify the conclusion that the power must be exercised in exceptional cases only because it is of an extraordinary character. Nonetheless, the discretion under the Section has to be exercised with due care and circumspection depending on circumstances justifying its exercise. ii) Before power under sub-section (1) of Section 438 of the Code is exercised, _the Court must be satisfied that the applicant invoking the provision has reason to believe that he is likely to be arrested for a non-bailable offence and that belief 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 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. 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. iii) The observations made in Balchand Jain's case, 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 be treated as conclusive on the point. There is no warrant for reading into Section 438, the conditions subject to which bail can be granted under Section 437(1) of the Code and therefore, anticipatory bail cannot be refused in respect of offences like 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. iv) No blanket order of bail should be passed and the Court which grants anticipatory bail must take care to specify the offence or the offences in respect of which alone the order will
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Supra not 2
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be effective. While granting relief under Section 438(1) of the Code, appropriate conditions can be imposed under Section 438(2) so as to ensure an uninterrupted investigation. One such condition 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 recovery. Otherwise, such an order can 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. v) The filing of First Information Report (FIR) is not a condition precedent to the exercise of power under Section 438. The imminence of a likely arrest 1 founded on a reasonable belief can be shown to exist even if an FIR is not yet filed. vi) An anticipatory bail can be granted even after an FIR is filed so long as the applicant has not been arrested. vii) The provisions of Section 438 cannot be invoked after the arrest of the accused. 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. viii) An interim bail order can be passed under Section 438 of the Code without notice to the Public Prosecutor but notice should be issued to the Public Prosecutor or to the Government advocate forthwith and the question of bail should be re-examined in the light of 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. ix) Though it is not necessary that the operation of an order passed under Section 438(1) 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 filing of FIR 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 reasonable short period after the filing of the FIR.7 Arrest: If such person is thereafter arrested, 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 the 7
https://mehnat.in/anticipatory_bail_stay_on_arrest.html
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magistrate taking cognizance of such offence decides that warrant should be issued against that person, he shall issue a bailable warrant in conformity with the direction of the court granting anticipatory bail. Anticipatory Bail Not A Blanket Order: The applicant must show by disclosing special facts and events that he has reason to believe, that he may be arrested for a non-bailable offence so that the court may take care to specify 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. Cancellation: An accused is free on bail as long as the same is not canceled. The High Court or Court of Session may direct that any person who has been released on bail be arrested and commit him to custody on an application moved by the complainant or the prosecution.
Siddharam Satlingappa Mhetre v. State of Maharashtra and Ors. Hon'ble Judges: Dalveer Bhandari and K.S. Panicker Radhakrishnan , JJ. The Apex Court in this judgment has widened the scope of personal liberty in the matter of arrest by police and denial of right of bail to the citizens. In order to save legally sanctioned liberty, the petitioner had to go up to the level of Supreme Court as both at the Sessions Court and High Court level, the anticipatory bail was denied to the petitioner. Only in the Supreme Court, the petitioner was able to safeguard his liberty according to law as provided in the CrPC. The Apex Court in this case in Para 131 noticed that it is imperative for High Courts through its judicial academies to periodically organize workshops, symposiums, seminars and lectures by the experts to sensitize judicial officers, police officers and investigating officers so that they can properly comprehend the importance of personal liberty vis-à-vis social interests. They must learn to maintain fine balance between the personal liberty and the social interests. The Apex Court further added in Para 132 that the performance of the judicial officers must be periodically evaluated on the basis of the cases decided by them. In case, they have not been able to maintain balance between personal liberty and societal interests,
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the lacunae must be pointed out to them and they may be asked to take corrective measures in future.
Brief Facts of the Case :
The petitioner, who belongs to the Indian National Congress party, was the alleged accused i n this case. The case as disclosed in the First Information Report was that Sidramappa Patil was contesting election of the State assembly on behalf of the Bhartiya Janata Party. In the FIR, it is incorporated that Baburao Patil, Prakash Patil, Mahadev Patil, Mallikarjun Patil, Apparao Patil, Yeshwant Patil were supporters of the Congress and so also the supporters of the Appellant Siddharam Mhetre and opposed to the BJP candidate. On 26.9.2009, around 6.00 p.m. in the evening, Sidr amappa Patil of BJP came to the village to meet his party workers. Sidramappa Patil and party workers thereafter went to worship and pray at Layavva Devi's temple. After worshipping the Goddess when they came out to the assembly hall of the temple, the political opponents belonging to the group of petitioner suddenly came rushing in their direction and loudly shouted, "why have you come to our village? Have you come here to oppose our Mhetre Saheb? They asked them to go away and shouted Mhetre Saheb Ki Jai. Baburao Patil and Prakash Patil from the aforementioned group of petitioner fired from their pistols in order to kill Sidramappa Patil and the other workers of the BJP. Bhima Shankar Kore was hit by the bullet on his head and died on the spot. 5 BJP party workers were also assaulted. It is further mentioned in the FIR that about eight days ago, the petitioner Siddharam Mhetre and his brother Shankar Mhetre had gone to the village and talked to the abovementioned party workers and told them that, "if anybody says anything to you, then you tell me. I will send my men within five minutes. You beat anybody. Do whatever." The petitioner applied to the High Court for the grant of anticipator y bail which was denied to him by the High Court. Hence petitioner filed this Special Leave Petition in the Supreme Court.
Contention(s) of the Parties :
According to the prosecution, the Appellant along with his brother instigated their party workers which led to killing of Bhima Shanker Kora. It may be relevant to mention that the
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alleged incident took place after eight days of the alleged incident of instigation. Mr. Shanti Bhushan, advocate for the petitioner has contended that the fundamental principle of criminal jurisprudence that every individual is presumed to be innocent till he or she is found guilty should be followed by the court. He also said that the legislature has not circumscribed court's discretion in any manner while granting anticipatory bail, therefore , the court should not limit the order only for a specified period till the charge-sheet is filed and thereafter compel the accused to surrender and ask for regular bail under Section 439 of Code of Criminal Procedure. Further he added that court should not interpret contrary to legislative intention. The legislature has provided wide discretion to court in the matter of anticipatory bail because the court has to apply it according to the context and circumstances of each case.
Decision of the Court :
The order of the High Court was set aside and the appeal was allowed. The petitioner was directed to join the investigation and fully cooperate with the investigating agency. In the event of arrest the petitioner shall be released on bail on his furnishing a personal bond in the sum of Rs. 50,000/- with two sureties in the like amount to the satisfaction of the arresting officer.
Summary of discussion on the issues in the judgment :
The court discussed the provision of anticipatory bail in many dimensions. The historical perspective of this provision was referred by court in the 41st Report (September 24, 1969) and 48th Report (July, 1972) of Law Commission. The court here relied on the decision of the Supreme Court Constitution Bench in Gurbaksh Singh Sibbia and Ors. v. State of Punjab [(1980) 2 SCC565] where the scope and ambit of the concept of anticipatory bail was dealt in a comprehensive manner. The scope of judicial discretion in the matter of anticipatory bail and its importance was emphasized by the bench. It was said that legislature can only frame broad guidelines on anticipatory bail and the court has to apply it according to the circumstance of the case. The court in the instant case said that all subsequent decision after Sibbia’s case (supra) which are contrary to the clear legislative intention of law laid down in Sibbia's case (supra) are perincuriam. It was also added that in case the conflict between the two views is irreconcilable, the court is bound to follow the judgment of the Constitution.
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Bench over the subsequent decisions of Benches of lesser strength. Many cases over this issue was discussed in the instant case.8
Recent case : Somnath Bharti Case
Court refuses anticipatory bail to Somnath Bharti in domestic violence case Delhi court on 21 st September, 2015 refused to grant anticipatory bail to Aam Aadmi Party (AAP) MLA Somnath Bharti in a domestic violence and attempt to murder case filed against him by his wife. Delhi Police registered an FIR against Mr Bharti under sections 307 (attempt to murder), 498A (cruelty towards wife), 324 (voluntarily causing hurt by dangerous weapon), 406 (criminal breach of trust), 313 read with 511 (attempt to cause miscarriage without woman's consent), 420 (cheating) and 506 (criminal intimidation) of IPC. Additional Sessions Judge Sanjay Garg dismissed Bharti's application seeking bail, submitting that he was a former Delhi law minister and there was no chance that he would abscond. He said two notices have already been issued to him by the police for joining probe in the case but he was running away and not cooperating with the agency. He also claimed that Bharti was an influencial person due to which nobody was coming forward to depose against him. "The petitioner (Mr Bharti) is involved in two more cases in Malviya Nagar," the court noted, which speak volumes and show "that the petitioner is not only violent and outrageous at home but also before the public at large." Two FIRs were earlier registered against Bharti, including one on alleged molestation of African
women.
He
also
said
the
politician's
wife
was
called
for
mediation four times but it did not help. Dismissing his plea for protection from arrest in the case, the Court had said that being an MLA, he should have shown more "generosity and responsibility towards his wife and children". .Here Court refused his plea for anticipatory bail by taking into consideration the nature and gravity of the accusation and the fact that previously two FIRs were earlier registered against Bharti, including one on alleged molestation of African women. 9
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http://www.nja.nic.in/10.%20Siddh%20Mhetre.pdf http://timesofindia.indiatimes.com/topic/anticipatory-bail
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CONCLUSION Section 438 is a procedural provision which is concerned with personal liberty of an individual, 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. Although the power to release on anticipatory bail can be described as of an “extraordinary” character this would “not justify the conclusion that the power must be exercised in exceptional cases only.” It is not necessary that the accused must make out a “special case” for the exercise of the power to grant anticipatory bail. No straight jacket formula can be prescribed for universal application in cases of anticipatory bail as each case has to be considered on its own merits and in its facts and circumstances. So, It is an established principle that discretion vested in the court, in all matters should be exercised with care and circumspection depending upon the facts and circumstances justifying its exercise. Similarly, the jurisdiction under section 438 Cr.P.C. should be exercised by the court in a wise and careful manner which by their long training and experience they are ideally suited to do.
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BIBLIOGRAPHY : 1. Ratanlal & Dhirajlal, The Code of Criminal Procedure, Lexis Nexis Butterworth, Wadhwa, Nagpur, 17 th ed., 2010. 2. Kelkar R.V., Criminal Procedure, Eastern Book Company, 2014. 3. Pillai,K.N. Chandrasekharan, “Criminal Procedure”,
ed.6., Eastern book
company, Lucknow.
WEBLIOGRAPHY: 1. http://www.legalservicesindia.com/article/article/fir-1126-1.html, last accessed on
03/10/2015, at 12:30 a.m. 2. http://www.advocatekhoj.com/library/judgments/announcement.php?WID=344 3. http://lawyersupdate.co.in/LU/13/895.asp
, last accessed on 03/10/2015,
Saturday, at 1:29 a.m. 4. http://indiankanoon.org/docfragment/1308768/?formInput=gurbaksh%20singh%2
0sibbia 5. http://www.nja.nic.in/10.%20Siddh%20Mhetre.pdf 6. http://timesofindia.indiatimes.com/topic/anticipatory-bail
