BALDEVBHAI NATVARLAL BAROT v. STATE — 1981 DIGILAW 146 (GUJ)

A. M. AHMADI, J. ( 1 ) WHETHER after the decision of the Supreme Court in Gurubaksh Singh v. State of Punjab A. I. R. 1980 Supreme Court 1632 the view expressed by a Division Bench of this Court in Narsinh Revaji v. State (1981) 22 G. L. R. 234 to the following effect. ". . . SECS. 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 under sec. 438 even if he is not entitled to bail under sec. 437. To take the view that the benefit of sec. 438 is available to all accused including persons accused of having committed murder is to defeat the provisions of sec. 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 sec. 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 under sec 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 applica- tions. ( 2 ) THE Supreme Court in Balchand v. State of M. P. A. I. R. 1977 S. C. 366 was called upon to decide whether an order of anticipatory bail can be competently made by a Court of Session or a High Court under section 438 of the Code of Criminal Procedure 1973 (for short the Code) in case of offences falling under Rule 184 of the Defence and Internal Security of India Rules 1981 Bhagwati J. speaking 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 under sec. 438 to grant anticipatory bail 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 a separate but concurring judgment however considered the historical background leading to the introduction of sec. 438 to grant anticipatory bail 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 a separate but concurring judgment however considered the historical background leading to the introduction of sec. 438 in the Code and after considering the language of secs. 437 and 438 observed as under :"as sec. 438 immediately follows sec. 437 which is the main provision for bail in respect of non-bailable offences it is manifest that the conditions imposed by sec. 437 are implicitly contained in sec. 438 of the Code. Otherwise the result would be that a person who is accused of murder can get away under sec 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 see. 437 nugatory and will give free licence to the accused persons charged with non- bailable offences to get easy bail by approaching the Court under sec. 438 and by-passing sec. 437 of the Code. This we feel could never have been the intention of the Legislature. Sec. 438 does not contain unguided or uncanalised powers to pass an order for anticipatory bail but such an order being of an exceptional typo can only be passed if apart from the conditions mentioned in sec. 437 there is a special case made out for passing the order. The words `for a direction under the section and Court may if it thinks fit directs clearly show that the Court has to be guided by a large number of considerations including those mentioned in sec. 437 of the Code". The decision of the Supreme Court in Balchands case was however not cited before the Division Bench of this Court which decided Narsinh Revajis case (supra ). The view taken by the Division Bench of this Court is substantially the same as expressed by Fazal Ali J. in the above quoted passage from his judgment in Balchands case. The decision of the Supreme Court in Balchands case was however not cited before the Division Bench of this Court which decided Narsinh Revajis case (supra ). The view taken by the Division Bench of this Court is substantially the same as expressed by Fazal Ali J. in the above quoted passage from his judgment in Balchands case. Following the view expre- ssed in Balchands case the Full Bench of the Punjab and Haryana High Court in Gurbaksh Singh v. State A. I. R. 1978 P. and H. I laid down as under :" (1) The power under sec. 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 in the preceding sec. 437 are implicit therein and must be read into sec. 438. (3) In addition to the limitations mentioned in sec. 437 the petitioner must make out a special case for the exercise of power to grant anticipatory bail. (4) The discretion under sec. 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 Balchands 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 Gurbaksh Singhs case (A. I. R. 1980 S. C. 1632) in effect disapproves the observations of Fazal Ali J. in Balchands 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 Revajis 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 Singhs case in some detail. ( 3 ) 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 under sec. It is therefore necessary to consider the effect of the judgment of the Supreme Court in Gurbaksh Singhs case in some detail. ( 3 ) 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 under sec. 438 of the Code is left to the sole discretion of the Court concerned depending on the facts and circum- stances 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 lear- ned Additional Solicitor General or the constraints which the PUll Bench of the High court (of Punjab and Haryana) has engrafted on the power conferred by sec. 438 Clause (1) of sec. 438 is couched in terms broad and unqualified. By any known canon of construction words of width and amplitude ought not generally to be got down so as to read into the language of the statute restraints and condi- * is especially true when the statutory provision which falls for consideration is desi- gned to secure a valuable right like the light to personal freedom and involves the application of a presumption as salutary and deep-grained in our Criminal Juris- prudence as the presumption of innocence". After taking into consideration the language of secs. 437 438 and 439 of the Code the Supreme Court observes as under :"the provisions of secs. 437 and 439 furnished a convenient model for the legisla- ture to copy while enacting sec. 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. ( 4 ) WHILE dealing with the question whether the limitations set out in sec. The departure in our opinion was made advisedly and purposefully. ( 4 ) WHILE dealing with the question whether the limitations set out in sec. 437 (1) of the Code must be read into sec. 438 the Supreme Court observes thus in paragraph 18 of its judgment :"now sec. 438 confers on the High Court and the Court of session the power to grant anticipatory bail if 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 into this provision the conditions subject to which bail can be granted under sec. 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 appears to be reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life. If it was intended that the exception contained in sec. 437 (1) should govern the grant of relief under sec. 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 sec. 437 (1) by reason of which the Court release the applicant on bail is normally the credibility of the allegations contained in the First Inform tion Report. In the majority of cases falling under sec. 438 that data will be lacking for forming the requisite belief. If at all the conditions mentioned in sec 437 are to be read into the provisions of sec. 438 the transplantation shall have to be done without amputation". These observations must be read in the context of the following obser- vations 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 band in the grant of relief in the nature of anticipatory bail. . . . . THERE is no risk involved in entrusting a wide discretion to the Court of Session and the High Court in granting anticipatory bail because. firstly these are High 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 which 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 possibi- lities 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". ( 5 ) IT becomes abundantly clear from the above observations of the Supreme Court that the view expressed by Fazal Ali. J. in Balchands case in the passage quoted earlier did not meet with the approval of Their Lordships in Gurbaksh Singhs 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 aforequoted passage from the judgment the Supreme Court proceeds to observe as follows in the subsequent paragraph :"we hold the decision in Balchand Jain (A. I R. 1977 S C. 366) 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 Ali J. has stated in Para 3 of his judgment that the only point which arose for consideration before the Court was whether the provision of sec. 438 relating to anticipatory bail stand a overruled and repealed by virtue of R. 134 of the Defence and Internal Security of India Rules 1971 or whether both the provisions can be the rule of harmonious interpretation. exist side by side. . . The observations made in Balchand Jain regarding the nature of the power conferred by sec 438 and regarding the question whether the condi- tions mentioned in sec. 437 should be read into sec. 438 cannot therefore be treated as concluding the points which arise directly for our consideration We agree. with respect that the power conferred by sec. . . The observations made in Balchand Jain regarding the nature of the power conferred by sec 438 and regarding the question whether the condi- tions mentioned in sec. 437 should be read into sec. 438 cannot therefore be treated as concluding the points which arise directly for our consideration We agree. with respect that the power conferred by sec. 438 is of an extraordinary character en the sense indicated above namely that it is not ordinarily resorted to like the power conferred by secs. 437 and 439. We also agree that the power to grant anti- cipatory bail should be exercised with one 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 extenso from Gurbaksh Singhs case leave no room for doubt that the view expressed by the Division Bench of this Court in Narsinh Revajis case (supra) to the effect that the power granted under sec. 438 is circumscribed by the limitation imposed under sec. 437 (1) that is to say that a person accused of having committed murder is not entitled to anticipatory bail under sec. 438 of the Code is no more good law and stands impliedly overruled. ( 6 ) MR. I. 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-sec. (1) of sec. 437 not entitled to bail unlike any other offender is not warranted on the plain language of that sub-section. The observations 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-sec. (1) of sec. 437 of the Code could be read into sec. 438 of the Code and a person against whom there are reason- able grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life can be enlarged on anticipatory bail under the newly inserted sec. 438 of the Code. (1) of sec. 437 of the Code could be read into sec. 438 of the Code and a person against whom there are reason- able grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life can be enlarged on anticipatory bail under the newly inserted sec. 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 hail under sec. 438 of the Code of Criminal Procedure meaning thereby that a person who cannot be enlarged on bail under sub-sec. (1) of sec. 437 of the Code should not be enlarged on anticipatory bail under sec. 438 of the Code. The Division Bench has not laid down any inflexible rule that once a person is alleged to have committed an offence punishable with death or imprisonment for life he can never be released on bail under sub-sec. (1) of sec. 437 of the Code. On a fair reading of the judgment such an interference cannot be drawn. It. would be tantamount to saying that the Court ignored the proviso to that sub-sec. 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 Gurbaksh Singhs case it is now settled law that the limitations of sub-sec. (1) of sec. 437 of the Code are not to be read in sec. 438 of the Code. While the power granted under sec. 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. (1) of sec. 437 of the Code are not to be read in sec. 438 of the Code. While the power granted under sec. 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 Singhs case:-"the High Court and the Court of Session to whom the application for anticipatory bail is made ought to be left free in the exercise of their judicial discretion to grant bail if they consider it fit so to do on the particular facts and Cicum- stances of the case and on such conditions as the case may warrant Similarly they must be left free to refuse bait if the circumstances of the case so warrant on considerations similar to those mentioned in sec. 437 or which are generally consi- dered to be relevant under sec. 439 of the Code. xxx xxx xxx xxx xxx"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 juststify the grant of bail in such cases too though of course the Court is free to refuse anticipatory bail in any case it there is material before it justifying such refusal". From the above quoted observations of the Supreme Court in Gurbaksh Singhs case it becomes obvious that the view expressed by the Division Bench of this Court that the limitations of sub-sec. (1) of sec. 437 must be read in sec. 438 of the Code is not good law and to that extent stands overruled. Petition allowed. .