Judgment · Supreme Court

6.2 The proper course of action for grant of anticipatory bail ought to be that after evaluating the averments and accusation available on the record if the court is inclined to grant anticipatory bail then an interim bail be granted and notice be issued to the public C prosecutor. After hearing the public prosecutor the court may either reject the bail application or confirm the initial order of granting bail. The court would certainly be entitled to· impose conditions for the grant of bail. The public prosecutor or complainant would be at liberty to D move the same court for cancellation or modifying the conditions of bail any time if liberty granted by the court is misused. The bail granted by the court should ordinarily be continued till the trial of the case. [Para 101) [254-G-H; 255-A-B] E F

6.3 The court which grants the bail also has the power to cancel it. The discretion of grant or cancellation of bail can be exercised either at the instance of the accused, the public prosecutor or the complainant on finding new material or circumstances at any point of time. [Para 103) [255-D]

6.4 The intention of the legislature is quite clear that the power of grant or refusal of bail is entirely discretionary. The Constitution Bench in Sibbia's case G clearly stated that grant and refusal is discretionary and it should depend on the facts and circumstances of each case; and that the wisdom of the Legislature entrusting this power to the superior courts namely, the High Court and the Court of Session must be respected. [Para 104] H [255-E-F] SIDDHARAM SATLINGAPPA MHETRE v. STATE OF 211 MAHARASHTRA

7.1 The order granting anticipatory bail for a limited A duration and, thereafter, directing the accused to surrender and apply before a regular bail is contrary to the legislative intention and the judgment of the Constitution Bench in Sibbia's case. [Para 102) [255-CJ 7 .2 The court which grants the bail also has the power to cancel it according to the provisions of the General Clauses Act but ordinarily after hearing the public prosecutor when the bail order is· confirmed then the benefit of the grant of the bail should continue till the end of the trial of that case. [Para 105] [256-D]

7.3 The restriction on the provision of anticipatory bail under Section 438 Cr.P.C. limits the personal liberty of the accused granted under Article 21 of the Constitution. In order to meet the challenge of Article 21 of the Constitution the procedure established by law for depriving a person of his liberty must be fair, just and reasonable. [Para 107) [256-F-H; 257-A] Maneka Gandhi v. Union of India and Anr. (1978) 1 SCC 248 - relied on.

7.4 Section 438 Cr.P.C. does not mention anything about the duration to which a direction for release on bail in the event of arrest can be granted. The order granting an~ipatory bail is a direction specifically to release the actused on bail in the event of his arrest. Once such a direction of anticipatory llail is executed by the accused and he is released on bail, the concerned court would be fully justified in imposing conditions including direction of joining investigation. [Para 108] [257-B-C] 7 .5 In pursuance to the order of the Court of Sessions or the High Court, once the accused is released on bail by the trial court, then it would be unreasonable to compel the accused to surrender before the trial court B C D E F G H 212 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R. A and again apply for regular bail. The court must bear in mind that at times the applicant would approach the court for grant of anticipatory bail on mere apprehension of being arrested on accusation of having committed a non-bailable offence. In fact, the investigating or 8 concerned agency may not otherwise arrest that applicant who has applied for anticipatory bail but just because he makes an application before the court and gets the relief from the court for a limited period and, thereafter, he has to surrender before the trial court and C only thereafter his bail application can be considered and life of anticipatory bail comes to an end. This may lead to disastrous and unfortunate consequences. [Paras 110 and 111) [257-E-H; 258-A]

7.6 The courts should not impose restrictions on the D ambit and scope of Section 438 Cr.P.C. which are not envisaged by the Legislature. The court cannot rewrite the provision of the statute in the garb of interpreting it. It is unreasonable to lay down strict, inflexible and rigid rules for exercise of such discretion by limiting the period E of which an order under this Section could be granted. Once the anticipatory bail is granted then the protection should ordinarily be available till the end of the trial unless the interim protection by way of the grant of anticipatory bail is curtailed when the anticipatory bail F granted by the court is cancelled by the court on finding fresh material or circumstances or on the ground of abuse of the indulgence by the accused. [Paras 113, 114 and 117) [258-E-H; 260-G-H; 261-A]

8.1 No inflexible guidelines or straitjacket formula can G be provided for grant or refusal of anticipatory bail. No attempt should be made to provide rigid and inflexible guidelines in this respect because all circumstances and situations of future cannot be clearly visualized for the grant or refusal of anticipatory bail. In consonance with H SIDDHARAM SATLINGAPPA MHETRE v. STATE OF 213 MAHARASHTRA the legislative intention the grant or refusal of anticipatory A bail should necessarily depend on circumstances of each case. [Para 121] [262-F-G] facts and

8.2 The following factors and parameters can be taken into consideration while dealing with the anticipatory bail: B (i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; (ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; c (iii) The possibility of the applicant to flee from justice; D (iv) The possibility of the accused's likelihood to repeat similar or the other offences; (v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her; (vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people; E F (vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is G implicated with the help of Sections 34 and 149 of the Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern; H 214 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R. A B C D (viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused; (ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; (x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail. [Para 122) [263-A-H; 264-A-D]

8.3 The arrest should be the last option and it should be restricted to those exceptional cases where arresting E the accused is imperative in the facts and circumstances of that case. The court must carefully examine the entire available record and particularly the allegations which have been directly attributed to the accused and these allegations are corroborated by other material and F circumstances on record. [Paras 123 and 124) [264-D-F]

8.4 Personal liberty is a very precious fundamental right and it should be curtailed only when it becomes imperative according to the peculiar facts and circumstances of the case. In case, the State considers G the following suggestions in proper perspective then perhaps it may not be necessary to curtail the personal liberty of the accused in a routine manner. These suggestions which are only illustrative and not exhaustive are: H $1DDHARAM SATLINGAPPA MHETRE v. STATE OF 215 MAHARASHTRA (1) DireCt the accused to join investigation and only A when the accused does not co-operate with the investigating agency, then only the accused be arrested. (2) Seize either the passport or such other related documents, such as, the title deeds of properties or the Fixed Deposit Receipts/Share Certificates of the accused. (3) Direct the accused to execute bonds; (4) The accused may be directed to furnish sureties of number of persons which according to the prosecution are necessary in view of the facts of the particular case. 8 c (5) The accused be directed to furnish unde~king D that he would not visit the place where the witnesses reside so that the possibility of tampering of evidence or otherwise influencing the course of justice can be avoided. E (6) Bank accounts be frozen for small duration during investigation. [Paras 127 and 128) [265-D-H; 266-A-C]

8.5 In case the arrest is imperative, according to the F facts of the case, in that event, the arresting officer must clearly record the reasons for the arrest of the accused before the arrest in the case diary, but in exceptional cases where it becomes imperative to arrest the accused immediately, the reasons be recorded in the case diary immediately after the arrest is made without loss of any G time so that the court has an opportunity to properly consider the case for grant or refusal of bail in the light of reasons recorded by the arresting officer. [Para 129) [266-D] H 216 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R. A B

8.6 The exercise of jurisdiction under Section 438 Cr.P.C. is extremely important judicial function of a judge and must be entrusted to judicial officers with some experience and good track record. Both individual and society have vital interest in orders passed by the courts in anticipatory bail applications. It is imperative for the 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 c properly comprehend the importance of personal liberty vis-a-vis social interests. They must learn to maintain fine balance between the personal liberty and the social interests. 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, the lacunae must be pointed out to them and they may be asked to take corrective measures in future. Ultimately, the entire discretion of grant or refusal of bail has to be left to the judicial officers and all concerned E must ensure that grant or refusal of bail is considered basically on the facts and circumstances of each case. [Paras 130, 131 and 132) (266-E-H; 267-A-B] 0

8.7 The discretion vested in the court in all matters F should be exercised with care and circumspection depending upon the facts and circumstances justifying its exercise. Similarly, the discretion vested with the court under Section 438 Cr.P.C. should also be exercised with caution and prudence. It is unnecessary to travel beyond G it and subject to the wide power and discretion conferred by the legislature to a rigorous code of self-imposed limitations. [Para 137] (268-E-F] Joginder Kumar v. State of UP. and Ors. (1994) 4 SCC 260 - referred to. H SIDDHARAM SATLINGAPPA MHETRE v. STATE OF 217 MAHARASHTRA

9.1 The judgments and orders in Salauddin A Abdulsamad Shaikh v. State of Maharashtra; K. L. Verma v. State and Anr.; Adri Dharan Das v. State of West Bengal; Sunita Devi v. State of Bihar and Anr. and; Naresh Kumar Yadav v Ravindra Kumar case are clearly contrary to the law declared by the Constitution Bench of this Court in B Sibbia's case. These judgments are also contrary to the legislative intention. The court would not be justified in re-writing Section 438 Cr.P.C. [Para 138) [268-G]

9.2 The analysis of English and Indian Law clearly C leads to the irresistible conclusion that not only the judgment of a larger strength is binding on a judgment of smaller strength but the judgment of a co-equal strength is also binding on a Bench of judges of co-equal strength. In the instant case, the judgments by two or three judges of this. Court in Salauddin Abdulsamad D Shaikh v. State of Maharashtra; K. L. Verma v. State and Anr.; Adri Dharan Das v. State of West Bengal; Sunita Devi v. State of Bihar and Anr. and; Naresh Kumar Yadav v Ravindra Kumar case have clearly ignored a Constitution Bench judgment of this Court in Sibbia's case which has E comprehensively dealt with all the facets of anticipatory bail enumerated under Section 438 of Cr.P.C .. Consequently, the said judgments are per incuriam. [Para 149) [273-D-F]