This article is written by Gautami Pradhan, a student at Symbiosis Law School, Noida. In this article, she discusses about the landmark case of Gurbaksh Singh Sibbia & Ors. Vs. State of Punjab of Anticipatory bail and critically analyses the stance taken by the Constitutional Bench.

Introduction

Gurbaksh Singh Sibbia & Ors. Vs. State of Punjab, is a landmark case in regards to the concept of ‘Anticipatory Bail’ in India. As such the term “Anticipatory bail’ has not been mentioned anywhere in any of the Indian legislations. But Section-438 of The Code of Criminal Procedure, 1973(Cr.P.C.) provides for bail in anticipation of arrest. According to this section, a person who anticipates having committed a non-bailable offence can apply to the high court or session’s court for bail in the event of arrest. The court has the discretion to grant him or reject his bail application.  

This case, in particular. is extremely essential as the Constitutional bench laid down eight guidelines to be followed by the High courts and session’s courts while exercising their discretionary powers to grant or reject anticipatory bail.  It was a five judge bench and consisted of Justice Y.V. Chandrachud, Justice P.N. Bhagwati, Justice N.L. Untwalia, Justice R.S. Pathak and Justice O. Chinnappa Reddy.  This project aims at critically analysing and commenting on the arguments and judgement of this particular case.

Facts of the case

Mr. Gurbaksh Singh Sibbia, the appellant, was the Minister of Irrigation and Power in the Government of Punjab under the Congress regime. He and a few others were facing serious accusations of corruption and undue use of power. The minister along with the other appellants  apprehends arrest.

The appellants applied for anticipatory bail under Section 438 of the code. in the High Court of Punjab and Haryana. They prayed for the HC to direct the appellants to be released on bail in the event of arrest on the basis of the above stated charges.

The application was dismissed by the full bench of the High Court but on special leave to appeal, the application was allowed by the Supreme Court.

Relevant Laws

Sections 437 and 438 of the Code consist of provisions regarding grant of bail to a person apprehending an arrest.

Section 437, specifically, describes instances or circumstances when bail may be granted for a non-bailable offence. Whereas, Section-438 deals with the provisions regarding grant of bail to a person apprehending an arrest. 

According to Section 437, a person may be released on bail if he has been detained without a warrant for the suspicion of commission of a non-bailable offence and if the court or investigating officer do not find a reasonable ground for believing that the suspect has committed a non-bailable offence but find ground for further inquiry into his guilt. The clauses have certain riders attached to them which ascertain the circumstances in which the bail must not be granted.

Section 438 includes provisions regarding ‘who can apply for anticipatory bail?’, ‘ who is it to be applied to’, ‘what are the conditions that must be considered while granting an anticipatory bail’ and ‘who can grant bail in specific circumstances’. According to this section, a person who apprehends arrest on suspicion or accusation of commission of a non-bailable offence may apply for anticipatory bail to the High Court or the Session’s court. 

The aim of the provisions has clearly been shown in the case of Ashok Kumar v State of Rajasthan. In this case, the Court clearly mentioned that until and unless the chances of dishonouring of the accused are clear in the allegations, Anticipatory bail will be denied under section-438.

Arguments

Appellant’s Arguments:

1. The appellant’s in the High court trial contended that the appellants, Mr. Gurbaksh Singh Sibbia and others were men of substance and held high positions in the Punjab Ministry and were unlikely to abscond or avoid facing the trial. Thus, they must be granted anticipatory bail.
2. The appellant’s in their appeal to the Supreme court contended that:

• The power conferred by Section 438 of the Code on the HC or Session’s court to grant anticipatory bail is not necessarily limited to the circumstances or contingencies as summarised by the full bench of the High Court. 
• The concerned court must have the discretion to grant  anticipatory bail depending upon the circumstances and facts of that particular case.
• The denial of bail amounts to deprivation or violation of Right to life and personal liberty. Thus, the courts should lean away from the imposition of restrictions that are not needed in regards to the provisions of Section 438 when there are no such restrictions laid down by the legislature in that section.
• Section 438 provides for the procedure of granting of an anticipatory bail. It is concerned with the Right to Life and Personal liberty of an individual who is yet to be found guilty in the commission of a non-bailable offence. Thus, the section and its provisions must be tested to examine their fairness. Imposition of unreasonable grounds must also be taken into account while determining the scope of Section 438. If the court imposes an unfair restriction on the Individual’s right to obtain an anticipatory bail, it would be violative of Article 21 and is liable to be struck down.

High Court’s Contention regarding the First argument:

The High Court’s Full Bench rejected the appellant’s contention on the account of negation of equality in considering the position and status of the party or individual while granting an anticipatory bail. According to the Full Bench, this contention was illogical and aggravating.

Full Bench’s Arguments and Grounds for rejection:

• The powers conferred upon High courts and Sessions courts for grant of anticipatory bail under Section 438 must be used in a restricted manner in exceptional cases as these powers are of an extraordinary nature/character.
• The Code of Criminal Procedures, 1973 does not provide for authority to the courts to grant protective anticipatory bail for offences yet to be committed or accusations that have not been far levelled.
• The limitations provided in Section 437 must be read with Section 438 while granting an anticipatory bail. 
• If the investigating officer suspects a legitimate ground for the individual’s remand to the police custody under the Section 167(2) of the Code and Section 27 of the Evidence Act, the power conferred under Section 438 must not be exercised.
• This power cannot be exercised in regards to offences that involve death penalty and life imprisonment as punishments unless the court is of the view that the charges are baseless and untrue.
• In cases of grave economic offences involving corruption, the court should not exercise its discretion to grant anticipatory bail citing public and state interest.
• Mere allegations of mala fide intention should not be entertained by the court. The court should be satisfied with the materials and evidence before it and decide accordingly whether the accusations are true or false.

Judgement

Obiter dictum

The appeals and special leave applications before the Supreme Court were disposed off. The Supreme Court held that the discretion of granting Anticipatory bail must be used more objectively and the higher courts have the power to correct this discretion if the need arises. A dual protection has been provided to this system so that there is no misuse if the discretion and the process. The constitutional bench set aside the judgement of the Full Bench and laid down the following guidelines for exercise of discretionary power:

1. The power though of ‘extraordinary character’ does not justify its use in exceptional cases. Due care, caution and circumspection must be used while exercising such powers.
2. The Individual applying for anticipatory bail must have a reasonable apprehension of getting arrested for a non-bailable offence, which can be objectively examined by the court.
3. Anticipatory bail must not be denied in cases where the accused is suspected to have committed an offence punishable in the form of death penalty or life imprisonment unless the court has sufficient evidence before it to justify the refusal.
4. Blanket or protective orders of bail should not be passed. Also, for efficient investigation, certain conditions can be imposed under Section-438(2) such as on discovery of a material or evidence in regards to the case.
5. Filing of FIR is not a condition precedent to the grant of anticipatory bail under section 438 and the individual can be granted bail as long as no arrest has been made.
6. The provisions under Section 438 cannot be invoked after the arrest has been made.
7. Under Section 438, interim bail order can be passed without issuing a notice to the Public Prosecutor but it should be mandatorily issued to him afterwards. The court has the discretionary powers to impose suitable conditions in case of such interim bails.
8. The court has the power to limit the operation of anticipatory bail orders until after the FIR is filed. The applicant may be asked to obtain a bail order under Sections 437 or 439 of Cr.P.C. after the filing of FIR has taken place.

Ratio Decidendi

The five judges’ bench was of the view that the discretionary power conferred upon the High courts and Sessions Courts, by the legislature can be accounted for by the fact that the criminal justice system cannot be engulfed in a straight jacket formula and the exercise of these powers depend upon the facts and circumstances of the different cases. And as no two cases have similar facts, the courts must be provided with a free hand to exercise their powers accordingly. 

According to Justice Chandrachud, the society has a vital interest in the right to personal liberty and the investigational power of the police even though relatively their importance depends upon the political conditions of the state at any given point of time. He highlighted that it was the court’s task to figure out how to strike a balance between the two and determine the scope of the Section 438 under the Code of Criminal Procedure, 1973.

Justice Chandrachud has also pointed out the term “reason to believe” means the apprehension must be founded upon reasonable grounds and not just a mere ‘belief’ or ‘fear’. The reason for this is that if an application for anticipatory bail is applied without any ground for the apprehension of arrest, the court gets overburdened with unnecessary cases and applications. This hampers with the efficient working of the judicial system.

Critical Analysis 

The Full Bench’s decision of limiting section 438’s use only to exceptional cases citing it’s extraordinary character was hampering with the deliverance of Justice and equality before the law. A person wrongly accused of a non-bailable offence would have no respite if such a limitation or restriction was put on the exercise of discretionary powers under Section-438. Also, there was ambiguity regarding the term ‘exceptional cases’ as the full bench did not specify under what exceptions was the use of powers conferred under Section 438 allowed. Thus, the Constitutional bench’s decision of setting aside this argument was logical and promoted equity.

Also, the Constitutional bench’s decision to impose certain restrictions on the anticipatory bail for efficient investigation is a better guideline in contrast to the High Court’s Full Bench’s decision which implied that the power under 438 must not be exercised at all. This curtailed the individual’s right to personal liberty and to procure a bail warrant which in turn violated Article 21 of Fundamental Rights.

The guidelines regarding Interim bail and limitation on the operation of an anticipatory bail give the courts a free hand to make decisions according to their discretion and curtail generalisation of laws which frustrates the working of the criminal justice system.

The constitutional bench’s stance that the learned judges of High courts and Sessions courts are capable of making wise decisions owing to their vast experience in the field is logical and even if they make a decision which is violative of Article 21, it can be subjected to judicial review and revision. But the concept of Anticipatory bail is very different from a normal bail. The reason for ambiguity in this case is that the person applying for anticipatory bail is not in any kind of custody, be it state or private.  

Anticipatory bail is a matter which is taken to court on mere presumption of threat of arrest. The matter is not of any kind of criminal nature yet. This does not allow the Investigating officers and/or agency, the scope to work on the case and defeats the purpose of granting investigative authority to these agencies or officers. This will result in the court interfering with the powers and work of the police.

Suggestions

The following suggestions can prevent curtailment of the individual’s (seeking anticipatory bail) personal liberty in its general sense/manner:

On releasing a person on anticipatory bail, his passport, deed for title of property or any other such documents must be seized in order to prevent him from absconding or avoiding the trial. Freezing of bank accounts should be made optional and restricted to the cases where the punishment is death penalty or life imprisonment.

The court must direct the accused to furnish an undertaking in regards to  not tampering with the evidence and not visiting the witness’s residence to threaten him/her.

The accused must be directed to join the investigation procedure and if he does not comply with such a direction, he should be arrested.

Overall, the decision of the constitutional bench was logical, practical and not at all violative of the power of discretionary decision making conferred upon the High courts and Sessions courts regarding granting of anticipatory bail orders. It is also not violative of the personal liberty of an accused individual.

Conclusion

In conclusion, the provisions of Section 438 of Cr.P.C. should not be suspected as containing something sensitive, which needs to be handled with great care and caution. A wise exercise of judicial power inevitably takes care of the evil and dangerous consequences which are likely to come out as a result of the use of Section 438. Neither inflexible guidelines can be provided for grant or refusal of anticipatory bail nor should any attempt be made to provide such guidelines in this respect because all cases have different facts and circumstances and cannot be adjudicated upon using the same guidelines. In any event, this is the legislative mandate which the Courts are bound to respect and honor. Anticipatory bail is a device to secure the individual’s liberty; it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusation, likely or unlikely.