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Judgment
A.M. Ahmadi, J.—Whether after the decision of the Supreme Court in Shri Gurbaksh Singh Sibbia and Others Vs. State of Punjab, the
view expressed by a Division Bench of this Court in Narsinh Revaji v. State (1981) 22 Guj LR 234, to the following effect:�
...Sections 437 and 438 have got to be read together because it is inconceivable that, an accused charged with having committed murder is entitled
to anticipatory bail u/s 438 even if he is not entitled to bail u/s 437. To take the view that the benefit of Section 438 is available to all accused
including persons accused of having committed murder is to defeat the provisions of Section 437. If such a person is released on anticipatory bail,
he will always continue to remain on bail until the trial is over. In such a case the bar enacted by Section 437 will never become operative. We are,
therefore, of the view that a person accused of having committed murder is not entitled to anticipatory bail u/s 438 of the Code of Criminal
Procedure"", is good law and still holds the field or stands impliedly overruled, is the question which we are called upon to decide in the present two
applications.
The Supreme Court in Paradip Port Trust, Paradip Vs. Their Workmen, was called upon to decide whether an order of ''anticipatory bail'' can
be competently made by a Court of Session or a High Court u/s 438 of the Criminal P. C, 1973 (for short ''the Code'') in case of offences falling
under Rule 184 of the Defence and Internal Security of India Rules, 1971, Bhagwati, J., speqking for himself and A. C. Gupta, J., confined himself
to the question pointedly raised before the Court and observed that ""the power conferred on a Court of Session or a High Court u/s 438 to grant
''anticipatory bail1 is not taken away by Rule 184 in case of persons apprehending arrest on an accusation of having committed contravention of
any Rule or order made under the Rules..."" Fazal Ali, J., who dictated in separate but concurring judgment, however, considered the historical
background leading to the introduction of Section 438 in the Code and after considering the language of Sections 437 and 438 observed as
under:�
As Section 438, immediately follows Section 437 which is the main provision for bail in respect of non-bailable offences it is manifest that the
conditions imposed by Section 437(1) are implicitly contained in Section 438 of the Code. Otherwise the result would be that a person who is
accused of murder can get away u/s 438 by obtaining an order for anticipatory bail without the necessity of proving that there were reasonable
grounds for believing that he was not guilty of offence punishable with death or imprisonment for life. Such a course would render the provisions of
Section 437 nugatory and will give a free licence to the accused persona charged with non-bailable offences to get easy bail by approaching the
Court under S, 438 and by-passing Section 437 of the Code. This, we feel, could never have been the intention of the Legislature. Section 438
does not contain unguided or uncanalised powers to pass an order for anticipatory bail, but such an order being of an exceptional type can only be
passed, if apart from the conditions mentioned in Section 437, there is a special case made out for passing the order. The words ''for a direction
under this section'' and ''Court may, if it thinks fit, direct'' clearly show that the Court has to be guided by a large number of considerations
including those mentioned in Section 437 of the Code.
The decision of the Supreme Court in Balchand''s case was, however, not cited before the Division Bench of this Court which decide Narsinh
Revaji''s case (supra). The view taken by the Division Bench of this Court is substantially the same as expressed by Fazal Ali, J-, in the
abovequoted passage from his judgment in Balchand''s case. Following the view expressed in Balchand''s case the Full Bench of the Punjab and
Haryana High Court in Gurbaksh Singh Sibia Vs. State of Punjab, laid down as under :�
(1) The power u/s 438 of the Code is of an extraordinary character and must be exercised sparingly in exceptional cases only.
(2) The said power is not unguided or uncanalised but all the limitations imposed therein preceding Section 437, are implicit therein and must be
read into Section 438.
(3) In addition to the limitations mentioned in Section 437, the petitioner must make out a special case for the exercise of power to grant
anticipatory bail.
(4) The discretion u/s 438 cannot be exercised with regard to offences punishable with death or imprisonment for life unless the Court at that very
stage is satisfied that such a charge appears to be false or groundless.
In other words, the Full Bench followed the observations of Fazal Ali, J., in Balchand''s case. The decision of the Full Bench was challenged
before the Supreme Court by way of appeals by special leave which appeals were heard by a larger bench of five learned Judges of the Supreme
Court. The question which, therefore, arises for consideration is, whether the decision of the Supreme Court in Shri Gurbaksh Singh Sibbia and
Others Vs. State of Punjab, in effect disapproves the observations of Fazal Ali, J., in Balchand''s case If the answer to this poser is in the
affirmative, it follows that the decision of the Division Bench of this Court in Narsinh Revaji''s case which takes the same view also stands impliedly
overruled. It is, therefore, necessary to consider the effect of the judgment of the Supreme Court in Gurbaksh Singh''s case in some detail.
It transpires from the observations made in paragraph 9 of that judgment that the controversy between the parties was whether the power to
grant anticipatory bail u/s 438 of the Code is left to the sole discretion of the Court concerned, depending on the facts and circumstances of each
particular case or that the grant of anticipatory bail should at least be conditional upon the applicant showing that he is likely to be arrested for an
ulterior motive, that is to say, that the proposed charge or charges are evidently baseless and are actuated by mala fides. Dealing with the latter
submission of the learned Additional Solicitor General, the Supreme Court observed as under in paragraph 12 of its judgment:�
We find ourselves unable to accept, in their totality, the submissions of the learned Additional Solicitor General or the constraints which the Full
Bench of High Court (of Punjab and Haryana) has engrafted on the power conferred by Section 438. Clause (1) of Section 438 is couched in
terms, broad and unqualified. By any known canon of construction words of width and amplitude ought not generally to be cut down so as to read
into the language of the statute restraints and conditions which the legislature itself did not think it proper or necessary to impose. This is especially
true when the statutory provision which falls for consideration is designed to secure a valuable right like the right to personal freedom and involves
the application of a presumption as salutary and deep-grained in our Criminal Jurisprudence as the presumption of innocence.
After taking into consideration that language of Sections 437, 438 and 439 of the Code, the Supreme Court observed as under :�
The provisions of Sections 437 and 439, furnished a convenient model for the legislature to copy while enacting Section 438. If it has not done so
and has departed from a pattern which could easily be adopted with the necessary modifications, it would be wrong to refuse to give to the
departure its full effect by assuming that it was not intended to serve any particular or specific purpose. The departure, in our opinion, was made
advisedly and purposefully.
While dealing with the question whether the limitations set out in Section 437(1) of the Code must be read in Section 438 the Supreme Court
observes thus in paragraph 18 of its judgment:�
Now, Section 438 confers on the High Court and the Court of Session the power to grant anticipatory bail of the applicant has reason to believe
that he may be arrested on an accusation of having committed ''a non-bailable offence''. We see no warrant for reading i into this provision the
conditions subject to which bail can be granted u/s 437(1) of the Code. That Section, . while conferring the power to grant bail : in cases of non-
bailable offences, provides by way of an exception that a person accused or suspected of the commission of a non-bailable offence ''shall not be
so released'' if there ap-c pears to be reasonable grounds for be of Sieving that he has been guilty of an jioffence punishable with death or
imprisonment for life. If it was intended that the exception contained in Section 437(1) should govern the grant of relief u/s 438(1), nothing would
have been easier for the legislature than to introduce into the latter section, a similar provision....The foundation, of the belief spoken of in Section
437(1), by reason of which the Court cannot i release the applicant on bail is, normally, the credibility of the allegations -.contained in the First
Information Re-�port. In the majority of cases falling i u/s 438, that the data will be Hacking for forming the requisite belief. ;If at all the
conditions mentioned in ES. 437 are to be read into the provisions of Section 438, the transplantation shall tiave to be done without amputation.
These observations must be read in the context of the following observations in paragraphs 12 and 14 of the judgment of the Supreme Court:�
The legislature conferred a wide discretion on the High Court and the Court of Session to grant anticipatory bail because it evidently felt, firstly,
that it would be difficult to enumerate the conditions under which anticipatory bail should or should not be granted and secondly, because the
intention was to allow the higher Courts in the echelon a somewhat free hand in the grant of relief in the nature of anticipatory bail....
There is no risk involved in entrusting h wide discretion to the Court of Session and the High Court in granting anticipatory bail because, firstly,
these are higher Courts manned by experienced persons, secondly, their orders are not final but are open to appellate or revisional scrutiny and
above all because, discretion has always to be exercised by Courts judicially and not according to whim, caprice or fancy. On the other hand,
there is a risk in foreclosing categories of cases in which anticipatory bail may be allowed because life throws up unforeseen possibilities and offers
new challenges. Judicial discretion has to be free enough to be able to take these possibilities in its stride and to meet these challenges.
It becomes abundantly clear from the above observations of the Supreme Court that the view expressed by Fazal Ali, J., in Balchand''s case
1977 Cri LJ 225 in the passage quoted earlier did not meet with the approval of Their Lordships in Gurbaksh Singh''s case. This becomes
abundantly clear when we read paragraphs 24 and 25 of the judgment of the Supreme Court in the latter case. Reproducing the aforequot-ed
passage from the judgment, the Supreme Court proceeds to observe as follows in the subsequent paragraph :�
We hold the decision in Balchand Jain AIR 1977 SC 366 : 1977 Cri LJ 225 in great respect but it is necessary to remember that the question as
regards the interpretation of Sec, 438 did not at all arise in that case. Fazal AH, J., has stated in Para 3 of his judgment that ''the only point'' which
arose for consideration before the Court was whether the provisions of Section 438 relating to anticipatory bail stand overruled and repealed by
virtue of R, 184 of the Defence and Internal Security of India Rules, 1971 or whether both the provisions can, by the rule of harmonious
interpretation, exist side by side....The observations made in Balchand Jain, regarding the nature of the power conferred by S, 438 and regarding
the question whether the conditions mentioned in Section 437 should be read into Section 438 cannot therefore be treated as concluding the points
which arise directly for our consideration. We agree, with respect, that the power conferred by Section 438 is of an extraordinary character in the
sense indicated above, namely, that it is not ordinarily resorted to like the power conferred by Sections 437 and 439. We also agree that the
power to grant anticipatory bail should be exercised with due care and circumspection but beyond that, it is not possible to agree with the
observations made in Balchand Jain....
The observations of the Supreme Court which we have reproduced in extensor from Gurbaksh Singh''s case leave no room for doubt that the view
expressed by the Division Bench of this Court in Narsinh Revaji''s case ((1981) 22 Guj LR 234) (supra) to the effect that the power granted u/s
438 is circumscribed by the limitation imposed u/s 437(1), that is to say, that a person accused of having committed murder is not entitled to
anticipatory bail u/s 438 of the Code is no more good law and stands impliedly overruled.
Mr. J. G. Shah, however, pointed out that even otherwise the wide observation made by the Division Bench of this Court in the aforesaid case
that a person accused of having committed an offence punishable with death or imprisonment for life is ''under Sub-section (1) of Section 437, not
entitled to bail unlike any other offender'' is not warranted on the plain language of that subsection. The observation made by the Division Bench
have to be read in the context of the question which arose for determination before that court. The question which the Division Bench was
considering was whether the limitations imposed by the latter part of Sub-section (1) of Section 437 of the Code could be read into Section 438 of
the Code and a person against whom there are reasonable grounds for believing that his has been guilty of an offence punishable with death or
imprisonment for life can be enlarged on anticipatory bail under the newly inserted Section 438 of the Code, It is in that context that the Division
Bench while dealing with a person accused of murder observed that ""a person accused of having committed murder is not entitled to anticipatory
bail u/s 438 of the Criminal P. C."", meaning thereby that a person who cannot be enlarged on bail under Sub-section (1) of Section 437 of the
Code should not bet enlarged on anticipatory bail u/s 438 of the Code. The Division Bench has not laid down any inflexible rule that once a person
is alleged to have committed an offence1 punishable with death or imprisonment for life he can never be released on bail under Sub-section (1) of
Rule 437 of the Code. On a fair reading of the judgment such an inference cannot be drawn. It would be tantamount to saying that the Court
ignored the proviso to that Sub-section (. Besides, the right of the accused to be released on bail should not be confused with the power of the
Court to release him on bail if the facts so warrant. But in view of the decision of the Supreme Court in Shri Gurbaksh Singh Sibbia and Others Vs.
State of Punjab, it is now settled law that the i imitations of Sub-section (1) of Section 437 of the Code are not to be read in Section 438 of the
Code. While the power granted u/s 438 of the Code to the High Court and the Court of Session is wide and unfettered, the Supreme Court has
cautioned that it must be exercised judicially. This becomes obvious from the following observations of the Supreme Court in paragraphs 13 and
18 of its judgment in Gurbaksh Singh''s case : �
The High Court and the Court of Session to whom the application for anticipatory bail is made ought to be leaf free in the exercise of their judicial
discretion to grant bail if they consider it fit so to do on the particular facts and circumstances of the case and on such conditions as the case may
warrant. Similarly, they must be left free to refuse bail if the circumstances of the case so warrant, on considerations similar to those mentioned in
Section 437 or which are generally considered to be relevant u/s 439 of the Code.
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Accordingly, we are unable to endorse the view of the High Court that anticipatory bail cannot be granted in respect of offences like criminal
breach of trust for the mere reason that the punishment provided therefor, 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.
From the above quoted observations of the Supreme Court in Gurbaksh Singh''s case it becomes obvious that the view expressed by the Division
Bench of this Court that the limitations of Sub-section (1) of Section 437 must be read in Section 438 of the Code is not good law and to that
extent stands overruled.
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