Judgment : 1) These Criminal Petitions are filed under Section 438 Cr.P.C by the same petitioner/A-1 in all the five crimes. 2) The respective reports for registering the crimes speak that: (1). Crime No.3/2013 of Ravulapalem Police Station was registered on 05.01.2013 from the report of even date given by Ch.N.V.S.Reddy of Ravulapalem, for the alleged occurrences prior to 18.05.2012 at Soubhagya Projects Private Limited, (for brevity, ‘Soubhagya’) Ravulapalem, incorporated in 1998 engaged in the business of infrastructure development mostly in relation to Government projects and himself and his brother Chinnareddy, the promoters/share holders and directors besides his wife, his brother’s wife and their mother later admitted as shareholders in 2004 with averments in brief that he is the Managing Director of Soubhagya, with corporate office at Road No.10, Banjara Hills, Hyderabad with main office at Ravulapalem, that said Ramu with support of others supra in siphoning of money from the company account to an extent of Rs.10.00 crores detected by their administrative office staff, Ravulapalem and informed him which he could confirm. That Soubhagya appointed M/s.J.B.R.K & Co., chartered accountant’s firm and its auditors of which M.V.S.Ramu and Praveen partners, for the financial year 2007-08 on 31.08.2008 and said Ramu was actively participating in the financial activities of Soubhagya with Chandra Reddy and in gaining confidence for them to believe within no time as well wisher, that said Ramu with an evil intention created rift between him and Chandra Reddy and cheated for sake of his benefit; that on advise of Ramu Soubhagya issued Rs.1,50,000/- equity shares of Rs.10/- each to his wife Sujatha and Rs.1,39,400/- of Rs.10/- each to Ratna Prasad.H, later joined additional director with Vidya Sri Bhaskar.A; on 27.12.2011 said Ramu joined Soubhagya as Director and took over the steering of the Company. Said Ramu and his family members conspired to cheat and defraud Soubhagya and also of him and Ramu driven them to make Sujatha (his wife) as share holder in the first instance and elevated her as one of directors and they both created a forged resolution by forging his signature as if authorised Ramu to operate Bank account with Axis Bank, Rajahmundry and they and parents of Ramu fabricated documents and approached TATA Capital Financial Services Limited, Mumbai and obtained loan of Rs.10.00 crores on 12.01.2012 and fraudulently diverted the amount through Axis Bank account to Maddipoti consultants private Limited and PGM Infra in two spells Rs.2.00 crores on 21.01.2012 and Rs.3.00 crores on 21.01.2012 and on 04.02.2012 Ramu transferred Rs.5.00 crores received from TATA Capital Finance and appropriated by using a self cheque by keeping the complainant in dark and said Ramu, his wife and parents are only beneficiaries and he might have defrauded about Rs.65.00 crores and he is responsible for TATA capital launching of Arbitration proceedings against Soubhagya, by falsely representing as if Managing Director of Soubhagya for their sending notices to him in so referring, and in causing wrongful loss to the rating and reputation of Soubhagya, and thereby M.V.S.Ramu, his wife M.Sujatha, his father M.S.Chowdary and his mother M.Varalakshmi are guilty of the offences to investigate. Therefrom, the crime was registered against them for the offences punishable under Sections 406, 409, 417, 420, 471 read with 34 IPC. (2). Therefrom, the crime was registered against them for the offences punishable under Sections 406, 409, 417, 420, 471 read with 34 IPC. (2). Crime No.10/2013 of C.C.S, Hyderabad is registered on dt.29.01.2013 based on a private complaint filed by Chief Manager of Canara Bank, IFB, Saifabad against Directors/guarantors of M/s.Lakshmi Paper Mills Private Limited Door No.10-4-3, Humayun Nagar, Masab Tank, Hyderabad (formerly M/s.Balagamreddy Paper Mills Private Limited) manufacturer of CD & CM boards with registered office Z.Medapadu, East Godavari District, while facing liquidity crunch, M.P.O.T Group promoted by M.V.S.Ramu evinced to take over the company in February 2011 that was earlier availed term loan for Syndicate Bank and their Bank and working capital limits were enhanced after August, 2011, subsequently the sanctions were cancelled for noncompliance of the terms and there is outstanding liability of the company of Rs.1,87,57,560.00 and the Directors are Radhika.G, Srinivas.S.S.B.Y, Surendranath.G, Varalakshmi.M, V.V.Rao, Rama Krishna.Ch., Sai Krishna.P and Baburao.V, that while obtaining periodical search reports it was found accused for purpose of making wrongful gain and to cause loss to the bank, approached S.B.H, Gunfoundry for further working capital and submitted a forged no due certificate dated 31.10.2011 purported to have been issued by Canara Bank in availing credit facilities on the assets of the Company, though accused already created charge in favour of complainant-Canara Bank and suppressing the fact of first hypothecation and mortgage which made the complainant-bank to inform S.B.H on 06.03.2012 and S.B.H replied of so called no due certificate purported to have been issued by complainant-bank and by classified the account as NPA complainant-bank issued notice under Section 13(2) of SARFAESI Act with demand for the outstanding and hence, to take action. The crime registered is for the offences punishable under Sections 406, 420, 468, 471 read with 34 IPC. (3). Crime No.16/2013 of CCS, Hyderabad is registered on 11.02.2013 on the report of Ch.N.V.S.Reddy of Soubhagya against M.V.S.Ramu, Sujatha, Satyanarayana Chowdary, Varalakshmi and J.Praveen for the offences punishable under Sections 406, 468, 471 read with 34 IPC based on the private complaint that was referred by the Court. (3). Crime No.16/2013 of CCS, Hyderabad is registered on 11.02.2013 on the report of Ch.N.V.S.Reddy of Soubhagya against M.V.S.Ramu, Sujatha, Satyanarayana Chowdary, Varalakshmi and J.Praveen for the offences punishable under Sections 406, 468, 471 read with 34 IPC based on the private complaint that was referred by the Court. The substance of the complaint is, the complainant is Managing Director of Soubhagya Hata Darguwan Projects Private Limited (for brevity, ‘Soubhagya-1’) that it is a subsidiary of Soubhagya Projects Private Limited (for brevity, ‘Soubhagya’) and the complaint narrates most of the facts referred in Crime No.3 of 2013 report and in further saying M.V.S.Ramu joined as one of the directors in November, 2011 having been the auditor of the parent company, the company borrowed Rs.75.00 crores from Bank of India, IFB, Nariman point, Mumbai towards term loan for implementing B.O.T project of H-D road and executed deed of hypothecation and company created an ESCROW account in Union Bank of India, while so it came to the knowledge of the complainant that M.V.S.Ramu had fabricated a board resolution and forged the signatures of his brother Chandra Reddy, then Managing Director which authorized said Ramu and Chandra Reddy to open bank account with Union Bank of India and to operate the same, sign necessary forms and documents and thereafter said Ramu siphoned the money borrowed from the Bank of said Rs.22,25,00,000/-by transferred through various transactions diverted to his personal companies evidenced by statement of Union Bank of India account showing Rs.6.96 crores routed through Axis Bank of mother company and in May, 2012 first time the same was realised, hence to take action. (4). (4). Crime No.191/2013 of Humayunnagar Police Station, Hyderabad registered on 12.07.2013 based on the private complaint received through Court of Ch.N.V.S.Reddy against M.V.S.Ramu, M.Sujatha, M.S.Chowdary and M.Varalakshmi which reads that is Managing Director of Soubhagya and Ramu a chartered accountant of the company along with other accused, his family members supra committed several irregularities and swallowed Rs.65.25 crores by transferring to his personal companies, complainant purchased properties from the accused persons 1 to 4 at Afia Plaza, Mazab Tank, Hyderabad No.10-4-3 vide registered sale deeds 2034/dt.26.05.2012, 2033/dt.26.05.2012, 2124/dt.04.06.2012 and 2125/04.06.2012, that the said vendors purchased the property from Arifuddin through G.P.A Mohd.S.A.Khan vide document No.11127/2010, dt.20.03.2010 at S.R.O, Golconda and they got registered in favour of the complainant said property, which they gave as personal security to S.B.H, Gunfoundry branch for loan obtained by them, which the complainant came to know on 16.05.2013 of accused deliberately with ill motive, committed breach of trust and cheated. Said crime was registered for the offences punishable under Sections 405, 415, 420, 423, 525, 506 read with 34 IPC and 156 (3) Cr.P.C. (5). Crime No.263/2013 of Banjara Hills Police Station, Hyderabad registered on 25.03.2013 on the private complaint received through Court of Ch.N.V.S.Reddy with averments that M.V.S.Ramu, Managing Director of BEEPEE power Limited, Road No.6, Banjara Hills, Hyderabad and chartered Accountant by profession, was appointed as auditor to Soubhagya, said Ramu requested complainant to invest in BEEPEE power to allot shares and to made complainant as Director and complainant therefrom gave cheque No.37890 for Rs.1.50 crores, dated 25.03.2011, drawn on Axis Bank, towards share allotment and he neither allotted shares nor returned the amount and was postponing, hence to take action and the same was registered against accused for the offences punishable under Sections 406 and 420 IPC. 3) Thus, from the above, leave about other accused, the main accusation is against petitioner-M.V.S.Ramu supra is created a forged resolution by forging signature Ch.N.V.S.Reddy as if he authorised Ramu to operate Bank account with Axis Bank, Rajahmundry and fabricated documents and approached TATA Capital Financial Services Limited, Mumbai as Managing Director and obtained loan of Rs.10.00 crores on 12.01.2012 and fraudulently diverted the amount through Axis Bank account to Maddipoti consultants private Limited and PGM Infra in two spells Rs.2.00 crores on 21.01.2012 and Rs.3.00 crores on 21.01.2012 and on 04.02.2012 Ramu transferred Rs.5.00 crores received from TATA Capital Finance and appropriated by using a self cheque by keeping the complainant in dark; M.V.S.Ramu had fabricated a board resolution and forged the signatures of Chandra Reddy (brother of complainant and then Managing Director, which authorised said Ramu and Chandra Reddy to open bank account with Union Bank of India and to operate the same and said Ramu siphoned the money borrowed from the Bank of said Rs.22,25,00,000/- by transferred through various transactions directed to his personal companies; said Ramu, as Managing Director of BEEPEE power Limited, Road No.6, Banjara Hills, Hyderabad requested complainant to invest in BEEPEE power to allot shares and complainant gave cheque No.37890 for Rs.1.50 crores, dated 25.03.2011, drawn on Axis Bank, towards share allotment and he was neither allotted shares nor returned the amount; that complainant purchased properties from said Ramu, his wife and parents at Afia Plaza, Mazab Tank, Hyderabad No.10-4-3 vide registered sale deeds 2034/dt.26.05.2012, 2033/dt.26.05.2012, 2124/dt.04.06.2012 and 2125/04.06.2012, which they gave as personal security to S.B.H, Gunfoundry branch for loan obtained by them, which the complainant came to know on 16.05.2013 of accused deliberately committed breach of trust and cheated; the other is the complaint filed by Chief Manager of Canara Bank, IFB, Saifabad against Directors/guarantors of M/s.Lakshmi Paper Mills Private Limited Door No.10-4-3, Humayun Nagar, Masab Tank, Hyderabad (formerly M/s.Balagamreddy Paper Mills Private Limited) manufacturer of CD & CM boards with registered office Z.Medapadu, East Godavari District, while facing liquidity crunch, stating M.P.O.T Group promoted by M.V.S.Ramu evinced to take over the company in February 2011 that was earlier availed term loan for Syndicate Bank and their Bank and working capital limits were enhanced after August, 2011, subsequently the sanctions were cancelled for non-compliance of the terms and there is outstanding liability of the company of Rs.1,87,57,560.00 and the Directors are Radhika.G, Srinivas.S.S.B.Y, Surendranath.G, Varalakshmi.M, V.V.Rao, Rama Krishna.Ch., Sai Krishna.P and Baburao.V, that while obtaining periodical search reports it was found accused for purpose of making wrongful gain and to cause loss to the bank, approached S.B.H, Gunfoundry for further working capital and submitted a forged no due certificate dated 31.10.2011 purported to have been issued by Canara Bank in availing credit facilities on the assets of the Company, though accused already created charge in favour of complainant-Canara Bank and suppressing the fact of first hypothecation and mortgage. 4) From the above so far as shares allotment concerned in BEEPEE Power, the allegation against Ramu is a civil liability practically, equally the sale deed transactions of non-disclosure of the property covered by registered mortgage with Canara Bank and second mortgage with S.B.H, if any, it is to say no bonafide purchaser for value could obtain that too at two spells said sale deeds without making bonafide enquiries regarding title and had it been the encumbrances could be known and it is the contention of the accused of the complainant by use of force and threat cause obtained the documents without consideration though as if referred in the documents and in relation to the company transactions if any. A perusal of the complaint by Canara Bank speaks the promoters and directors not included name of Ramu, but for to say the accused are owners of the property created as collateral security by mortgage. Regarding the S.B.H second mortgage concerned the S.B.H did not lay any claim admittedly. 5) It is from this background of the factual matrix, some more facts necessary to mention of the events before the Court of law after registration of the crimes supra in nutshell are the Apex Court’s order in petition for Special Leave to Appeal (Crl.) Nos.2382-2386/2014 which read “we are not inclined to interfere with the impugned order. The Special Leave Petitions are dismissed. It will be open to the petitioner (M.V.S.Ramu) to apply for interim protection. If such an application is made, the Court concerned will consider it on its own merits”. The Special Leave Petitions are dismissed. It will be open to the petitioner (M.V.S.Ramu) to apply for interim protection. If such an application is made, the Court concerned will consider it on its own merits”. The common order impugned therein is dated 24.02.2014 in Crl.M.P.No.11094 of 2013, Crl.P.Nos.11331 to 11336 of 2013 and Crl.M.P.No.11857, 11936, 12112, 12435 of 2013 of this Court, where said Ramu against the State represented by P.P and Ch.N.V.S.Reddy supra filed quash proceedings of said crimes and the report/complaint filed by said Reddy and forwarded by Court to police detailed supra and the miscellaneous petitions filed by said Reddy to permit being affected party to contest the quash petitions and it is the matters when posted for being mentioned against the order dated 07.10.2013 seeking to restore saying the direction to the I.O without arrest of the accused Ramu and to file final report with direction to Ramu to cooperate by appearing before I.O as and when required in saying mainly from the expression of the Apex Court in Vishnu Agarwal V.State of U.P. (2011)14 SCC 813 ) that Court in recall petitions being not review, does not go into merits but simply recalls an order which was passed without giving opportunity of hearing from contention putforth from no notice served and prejudice caused thereby afforded opportunity to the said Reddy, defacto-complainant by recalling said order by restoring the petitions for further hearing. It is in this context relevant to mention that while said order since recalled supra, before recall while in force, the anticipatory bail applications filed were withdrawn with permission, from said direction serves the purpose as can be seen and not because of holding of no merits or while under dismissal to avoid such recourse, needless to say the defacto-complainant was also permitted to come on record in opposing those anticipatory bail application as is now. It is needful to say in Crime No.16 of 2013 the four accused persons moved for anticipatory bail by Crl.P.No.3600 of 2013 where with observation of A-3 and A-4 even as per prosecution not main culprits and from their age entitled to the anticipatory bail and so far as A- 1 and A-2 concerned thepetition was dismissed on 29.04.2013 with observation that said dismissal is not on merits but that the offences are triable by Magistrate of First Class with observation that they may surrender before trial Court and move the trial Court for grant of regular bail and in such event the trial Court shall dispose of such an application on the same day on which it is filed. It is further to mention that initially the accused Nos.1 and 2 in Crime No.3 of 2013 supra i.e., Ramu and his wife Sujatha moved for anticipatory bail covered by Crl.P.No.1840 of 2013 where it was averred the first petitioner, a chartered accountant and for the services rendered in the companies established by complainant Rs.20.00 crores became due which the complainant failed to pay and offered shares to the 1st petitioner and made him as Managing Director and later he was kidnapped by the complainant in April, 2012 and certain signatures were obtained on blank papers and in that connection Crime No.70 of 2012 and Crime No.445 of 2012 were registered against the assailants which revealed the complainant is behind the back and complainant and his family members filed caveat petition No.240 of 2012 in Senior Civil Judge’s Court, Rajahmundry, East Godavari District from petitioners approaching civil Court and getting any orders and in that relation their disputes crept in and whereas in the contention of the defacto-complainant through the counsel in opposing the bail petition to the 1st petitioner Ramu is that he transferred Rs.10.00 crores from the company of complainant to his own companies in proving the breach of trust with reference to the bank accounts for said amount of Rs.10.00 crores. Therefrom observed at para-7 of 1st petitioner played a lead role in said transfer of the amount of Rs.10.00 crores from account of complainant company to the companies of 1st petitioner as can be seen from the extract of the account and in view of that matter not inclined to grant anticipatory bail to him, but for to his wife the 2nd petitioner. 6) A perusal of the above proceedings before the Court even not on ground of dismissal from non entitlement to the bail but not entitled to the concession to the anticipatory bail from the prima facie accusation showing Rs.10.00 crores transferred from complainant company to accused No.1 company. Needless to say withdrawal of earlier bail applications no bar to the present ones for what is discussed supra and needless to say dismissal of anticipatory bail application in another crime with observation of not going into merits but for saying cases triable only by Magistrate, hence can move regular bail there. 7) From this background, needless to say including on those aspects in detail heard the Learned Counsel for the Petitioner, the Learned Public Prosecutor for the Respondent-State and perused the material placed on record for so indicating supra and to answer hereunder. 7) From this background, needless to say including on those aspects in detail heard the Learned Counsel for the Petitioner, the Learned Public Prosecutor for the Respondent-State and perused the material placed on record for so indicating supra and to answer hereunder. 8) The counsel for the petitioner-A.1 in all the bail applications covered by the 5 crimes supra, contended that there is practically no investigation remained to be completed but for filing of charge sheet in each of the cases, from the case of the prosecution shows rested on documentary evidence regarding the alleged criminal acts attributed against the accused and that there is every apprehension of ill-treatment in the hands of the police if made available of the A.1-petitoner to the police who are at the influence of the defacto-complainant by name Ch.N.V.S. Reddy and that there is no question of abscondence of the accused or fleeing away from justice or interference with witnesses, that none of the offences are punishable with death or imprisonment for life or for a period above ten years and there is nothing to show the accused is involved in any crimes earlier, much less to say with any bad antecedents, being a Chartered Accountant and the other accused implicated are no other than his wife and aged parents and that thereby he is entitled to the concession of anticipatory bail in all the crimes which are cause registered by his counterpart Ch.N.V.S.Reddy with his wielding influence, that it was he that obtained the sale deeds under threat and covered by crimes registered in this regard against the assailants who were at the behest of the present complainant, who now claims as if cheated having knowledge of the registered Mortgage of the properties and the earlier dismissal of the anticipatory bail application in Crl.M.P.No.11840 of 2013 in Cr.No.3 of 2013 in March,2013 is now not a consideration much less coming in the way for the granting of the bail from the subsequent changed circumstances from the investigation at that time was in preliminary stage and now not. It is also the contention that the subsequent 5 anticipatory bail applications filed were as withdrawn and dismissed was on the ground of order against arrest granted in the quash proceedings and thereby that also no way comes in the way for considering the present applications to grant bail. It is also the contention that the subsequent 5 anticipatory bail applications filed were as withdrawn and dismissed was on the ground of order against arrest granted in the quash proceedings and thereby that also no way comes in the way for considering the present applications to grant bail. It is also the contention that in one of the earlier anticipatory bail applications in Crl.M.P.No.3600 of 2013 in Cr.No.16 of 2014 by all the four accused persons of which A.3 and A.4 were granted anticipatory bail and dismissed for A.1 and A.2 who are the petitioner herein and his wife in passing order dated 29.04.2013, needless to say his wife was also granted anticipatory bail in Crime No.3 of 2013 which he could not avail, that without going into the merits in Crl.M.P.No.3600 of 2013 observations of the petitioner may surrender before the learned trial Magistrate concerned and move for regular bail and in such an event the learned Magistrate shall dispose of the application on the same day, is also no way bar for non-availment of the concession therein to the maintainability of the present applications. 9) Whereas it is the contention of the defacto-complainant by name Ch.N.V.S.Reddy of Cr.Nos.3 of 2013, 16 of 2013, 191 of 2013, 263 of 2013 and same person came as effected in the Cr.No.10 of 2013 where the defacto-complainant was Chief Manager of Canara Bank, in opposing the bail applications is mainly by drawing attention of the Court to the factual matrix respectively in saying the petitioner is not entitled to the concession of the bail from the propensity of the crime and the manner of its perpetration by using his ingenious intelligence being a Chartered Accountant and sought for dismissal of the same. 10) In opposing the bail applications the learned Public Prosecutor by reiterating same contentions, also placed reliance upon two expressions of the Apex Court viz, in State of Maharashtra Vs Captain Buddhikota Subbarao ( AIR 1989 SC 2292 ), by placing reliance upon para-7 and in Kalyanchandrasarkar Vs Rajeshranjan @ Pappu Yadav (2005)2 SCC 42 ) paras 18 to 20 and 46. 11) In Buddhikota Subbarao (supra) para-7 it was held that “Liberty occupies a place of pride in our socio-political order. 11) In Buddhikota Subbarao (supra) para-7 it was held that “Liberty occupies a place of pride in our socio-political order. And who knew the value of liberty more than the founding fathers of our Constitution whose liberty was curtailed time and again under Draconian laws by the colonial rulers. That is why they provided in Article 21 of the Constitution that no person shall be deprived of his personal liberty except according the procedure established by law. It follows therefore that the personal liberty of an individual can be curbed by procedure established by law. The Code of Criminal Procedure, 1973, is one such procedural law. That law permits curtailment of liberty of anti-social and anti-national elements. Article 22 casts certain obligations on the authorities in the event of arrest of an individual accused of the commission of a crime against society or the Nation. In cases of under trials charged with the commission of an offence or offences, the court is generally called upon to decide whether to release him on bail or to commit him to jail. This decision has to be made mainly in non-bailable cases, having regard to the nature of the crime, the circumstances in which it was committed, the background of the accused, the possibility of his jumping bail, the impact that his release may make on the prosecution witnesses, its impact on society and the possibility of retribution, etc. In the present case the successive bail applications preferred by the respondent were rejected on merits having regard to the gravity of the offence alleged to have been committed. One such application No. 36 of 1989 was rejected by Suresh, J. himself. Undeterred the respondent went on preferring successive applications for bail. All such pending bail applications were rejected by Puranik, J. by a common order on 6/06/1989. Unfortunately, Puranik, J. was not aware of the pendency of yet another bail application No. 995/89 otherwise he would have disposed it of by the very same common Order. Before the ink was dry on Puranik, J. order, it was upturned by the impugned order. It is not as if the court passing the impugned order was not aware of the decision of Puranik, J., in fact there is a reference to the same in the impugned order. Could this be done in the absence of new facts and changed circumstances? It is not as if the court passing the impugned order was not aware of the decision of Puranik, J., in fact there is a reference to the same in the impugned order. Could this be done in the absence of new facts and changed circumstances? What is important to realise is that in Criminal Application No. 375 of 1989, the respondent had made an identical request as is obvious from one of the prayers (extracted earlier) made therein. Once that application was rejected there was no question of granting a similar prayer. That is virtually overruling the earlier decision without there being a change in the fact-situation. And when we speak of change, we mean a substantial one which has a direct impact on the earlier decision and not merely cosmetic changes which are of little or no consequence. 'Between the two orders there was a gap of only two days and it is nobody's case that during these two days drastic changes had taken place necessitating the release of the respondent on bail. Judicial discipline propriety and comity demanded that the impugned order should not have been passed reversing all earlier orders including the one rendered by Puranik, J. only a couple of days before, in the absence of any substantial change in the fact situation. In such cases it is necessary to act with restraint and circumspection so that the process of the Court is not abused by a litigant and an impression does not gain ground that the litigant has either successfully avoided one judge or selected another to secure an order which had hitherto eluded him. In such a situation the proper course we think, is to direct that the matter be placed before the same learned judge who disposed of the earlier applications. Such a practice or convention would prevent abuse of the process of court inasmuch as it will prevent an impression being created that a litigant is avoiding or selecting a court to secure an order to his liking. Such a practice would also discourage the filing of successive bail applications without change of circumstances. Such a practice if adopted would be conclusive to judicial discipline and would also save the Court's time as a judge familiar with the facts would be able to dispose of the subsequent application with despatch. It will also result in consistency. Such a practice would also discourage the filing of successive bail applications without change of circumstances. Such a practice if adopted would be conclusive to judicial discipline and would also save the Court's time as a judge familiar with the facts would be able to dispose of the subsequent application with despatch. It will also result in consistency. In this view that we take we are fortified by the observations of this Court in paragraph 5 of the judgment in Shahzad Hasan Khan v. Ishtiaq Hasan Khan ( 1987 (2) SCC 684 = AIR 1987 SC 1613 ). For the above reasons we are of the view that there was no justification for passing the impugned order in the absence of a substantial change in the fact-situation. That is what prompted Shetty, J. to describe the impugned order as 'a bit out of the ordinary'. Judicial restraint demands that we say no more. It is true that ordinarily this Court does not interfere with an order granting bail but in the facts of this case, we feel judicial discipline will be sacrificed at the altar of judicial discretion if we refuse to exercise our jurisdiction under Art. 136 of the Constitution. In the result we allow this appeal and set aside the impugned order dated 8/06/1989 granting bail to the respondent accused. Appeal allowed”. 12) In Kalyan Chandra Sarkar (supra) paras 18 to 20 and 46 it was held that “It is trite law that personal liberty cannot be taken away except in accordance with the procedure established by law. Personal liberty is a constitutional guarantee. However, Article 21 which guarantees the above right also contemplates deprivation of personal liberty by procedure established by law. Under the criminal laws of this country, a person accused of offences which are non bailable is liable to be detained in custody during the pendency of trial unless he is enlarged on bail in accordance with law. Such detention cannot be questioned as being violative of Article 21 since the same is authorised by law. Under the criminal laws of this country, a person accused of offences which are non bailable is liable to be detained in custody during the pendency of trial unless he is enlarged on bail in accordance with law. Such detention cannot be questioned as being violative of Article 21 since the same is authorised by law. But even persons accused of non bailable offences are entitled for bail if the court concerned comes to the conclusion that the prosecution has failed to establish a prima facie case against him and / or if the court is satisfied for reasons to be recorded that in spite of the existence of prima facie case there is a need to release such persons on bail where fact situations require it to do so. In that process a person whose application for enlargement on bail is once rejected is not precluded from filing a subsequent application -for grant of bail if there is a change in the fact situation. In such cases if the circumstances then prevailing requires that such persons to be released on bail, in spite of his earlier applications being rejected, the courts can do so. 13) The principles of resjudicata and such analogous principles although are not applicable in a criminal proceeding, still the courts are bound by the doctrine of judicial discipline having regard to the hierarchical system prevailing in our country. The findings of a higher court or a coordinate bench must receive serious consideration at the hands of the court entertaining a bail application at a later stage when the same had been rejected earlier. In such an event, the courts must give due weight to the grounds which weighed with the former or higher Court in rejecting the bail application. Ordinarily, the issues which had been canvassed earlier would not be permitted to be re-agitated on the same grounds, as the same it would lead to a speculation and uncertainty in the administration of justice and may lead to forum hunting. 14) The decisions given by a superior forum, undoubtedly, is binding on the subordinate fora on the same issue even in bail matters unless of course, there is a material change in the fact situation calling for a different view being taken. 14) The decisions given by a superior forum, undoubtedly, is binding on the subordinate fora on the same issue even in bail matters unless of course, there is a material change in the fact situation calling for a different view being taken. Therefore, even though there is room for filing a subsequent bail application in cases where earlier applications have been rejected, the same can be done if there is a change in the fact situation or in law which requires the earlier view being interfered with or where the earlier finding has become obsolete. This is the limited area in which an accused who has been denied bail earlier, can move a subsequent application. Therefore, we are not in agreement with the argument of learned counsel for the accused that in view the guaranty conferred on a person under Article 21 of the Constitution of India, it is open to the aggrieved person to make successive bail applications even on a ground already rejected by courts earlier including the Apex Court of the country. 15) In our humble opinion, in the case of Jayendra Saraswathi (supra), this Court only distinguished the facts of that case from the facts of the present case in hand and the question of overruling a judgment on facts does not arise unless, of course, the court is sitting in appeal over the judgment sought to be distinguished. This Court in Kalyan Chandra Sarkar (supra) decided the said case on the facts of that case only, so the question of the said case being overruled in another case does not arise. It is clear from the perusal of Jayendra Saraswathi's case as well as Kalyan Chandra Sarkar (supra) that both the cases have been decided by this Court on their individual facts only. 16) While deciding the cases on facts, more so in criminal cases the court should bear in mind that each case must rest on its own facts and the similarity of facts in one case cannot be used to bear in mind the conclusion of fact in another case (See: Pandurang and Anr. Vs. State of Hyderabad (1955 (1) SCR 1083). Vs. State of Hyderabad (1955 (1) SCR 1083). It is also a well established principle that while considering the ratio laid down in one case, the court will have to bear in mind that every judgment must be read as applicable to the particular facts proved or assumed to be true. Since the generality of expressions which may be found therein are not intended to be expositions of the whole of the law, but are governed and qualified by the particular facts of the case in which such expressions are to be found. A case is only an authority for what it actually decides, and not what logically follows from it. See:- (1) Quinn vs. Leathern (1901) AC 495 (2) State of Orissa vs. Sudhansu Sekhar Misra ( AIR 1968 SC 647 ) (3) Ambica Quarry Works Vs. State of Gujarat ( AIR 1987 SC 1073 ). 17) Bearing the above jurisprudential principle in mind if we examine the case of Jayendra Saraswathi (supra) it is clear that it was a case which was decided on the facts of that case and that the court did not overrule the judgment of this court in the case of Kalyan Chandra Sarkar (supra) even by implication but it only distinguished the case on facts. Therefore, in our opinion, that judgment is of no assistance to the respondent accused in this case. 18) The learned Counsel for the appellant had pointed out that there are nearly 44 more witness to be examined by the prosecution and the past conduct of the accused as found by courts below very clearly shows that if he is released on bail he would certainly threaten the witnesses and tamper with the evidence which according to the learned counsel is clear from 'the fact that a number of witnesses have already turned hostile, many of them during the period when the accused was let on bail. Therefore, releasing the respondent-accused would not be in the larger interests of justice. We agree with this argument. 19) From the above, now the points that arise for consideration are: 1) Whether the petitioner-A.1 in all the 5 crimes or in any of the crimes is entitled to the concession of anticipatory bail and if not whether there can be any order that can be passed for any entitlement of regular bail from the consideration of personal liberty? 2) To what relief? 2) To what relief? Point 1: 20) In fact the term BAIL has not been defined either in the old or in the new Cr.P.C. but for relying on the dictionary meaning in several decisions saying “to give or delivery” to mean to accept security for a prisoner’s or arrestee’s appearance for delivering [releasing] him to his liberty from custody on arrest. The concept of pre-arrest bail is to say earlier unknown. Thus, bail is the transference of substitution of custody for the conditions of sufficiency and suitably of the security and for attendance wherever just for releasing from custody, if in custody and otherwise on taking to custody from appearance, production or brought before the Court depending on the contingency and need less to say with in the judicial discretion and with in the parameters of law on its own merits, by balancing the propensity of the crime and its impact on larger interest of society vis-a-vis personnel liberty. 21) As per the Apex Court’s Judgment in Sunil F.Shaw –Vs.- Union of India (2000 [3] SCC 409) the meaning of bail even as per Cr.P.C. is to release the accused from internment though Court, would still retain constructive control over him through the sureties through the conditions of the bond given by the accused and sureties. 22) As per Halsbury’s Laws of England, the effect of granting bail is not to set the accused at liberty but to release him from the custody of the law and to entrust him to the custody of his sureties who are bound to produce him in the Court of Law for his appearance during enquiry and trial at specific times and places. The sureties may seize their principal at any time by handing him over to Custody of law to discharge them. Even in case accused was released on his own bond, such constructive control could still be exercised though the conditions of the bond secured from him. The sureties may seize their principal at any time by handing him over to Custody of law to discharge them. Even in case accused was released on his own bond, such constructive control could still be exercised though the conditions of the bond secured from him. 23) Leave the scope of Article 266 of the Constitution of India in grant of bail in exceptional circumstances and the provisions other than those governed by Chapter XXXIII of Cr.P.C relating to bails and bonds with or without sureties, U/Sections 436 to 450 Cr.P.C, among which Section 436 Cr.P.C, deals with bailable offences and Section 437 Cr.P.C, deals with bail in the case of non-bailable offences and the considerations if any for passing the orders by Court of Law other than the High Court or Sessions Court. Section 439 Cr.P.C, deals with special powers of High Court or Sessions Court regarding bail and arrest and committal of a person back to custody and further power to modify or set aside any of the conditions imposed by Magistrate while granting bail U/Section 436 or Section 437 Cr.P.C, or other provisions to which the Chapter XXXIII equally applies. Section 438 Cr.P.C, deals with power of High Court and Sessions Court in non-bailable offences to grant anticipatory bail when applied by any person apprehending arrest & the considerations for it. 24) On the right to have bail, the Apex Court held in Gudikanti Narasimhulu v. Public Prosecutor (1978(1)SCC 240=AIR 1978 SC) that - while posing the question of bail or jail at the pretrial or post conviction stage belongs to the blurred area in the criminal justice system largely of the Bench opinion as judicial discretion. The Apex Court observed that in the exercise of judicial discretion Courts have formulated some principles for their own motion in matters relating to the bail and we would like to think that the tendency of modern Courts in India inspired by Article 21 and 14 since the decision of Maneka Gandhi`s case is to grant bail whenever Court satisfied that there are no reasonable likelihood of accused abscond or pollute or tamper the evidence or otherwise. 25) In fact those criteria for consideration of regular bail in a non bailable offence are different to anticipatory bail. To have a glimpse it is apt to reproduce Section 438 of the Code of Criminal Procedure, 1973 which reads: "438. 25) In fact those criteria for consideration of regular bail in a non bailable offence are different to anticipatory bail. To have a glimpse it is apt to reproduce Section 438 of the Code of Criminal Procedure, 1973 which reads: "438. Direction for grant of bail to person apprehending arrest – (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 Session 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 (iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail. Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub-section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in-charge of a police station to arrest, without warrant, the applicant on the basis of the accusation apprehended in such application. (1-A) Where the Court grants an interim order under subsection (1), it shall forthwith cause a notice being not less than seven days notice, together with a copy of such order to be served on the Public Prosecutor and the Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court. (1-B) The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice. (1-B) The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice. (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 thinks 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 section. (3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, 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 if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under sub-section (1)." 26) From the above, Sub-section (1) of Section 438 enacts that when any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or to the Court of Session for a direction that in the event of his arrest he shall be released on bail, and the Court may, if it thinks fit, direct that in the event of such arrest he shall be released on bail. Subsection (2) empowers the High Court or the Court of Session to impose conditions enumerated therein. Subsection (2) empowers the High Court or the Court of Session to impose conditions enumerated therein. Sub- section (3) states that if such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, he shall be released on bail. 27) As observed in Balchand Jain Vs. State of M.P (AIR 1976 SC) `anticipatory bail' means `bail in anticipation of arrest'. The expression `anticipatory bail' is a misnomer inasmuch as it is not as if bail is presently granted by the Court in anticipation of arrest. When a competent court grants `anticipatory bail', it makes an order that in the event of arrest, a person shall be released on bail. There is no question of release on bail unless a person is arrested and, therefore, it is only on arrest that the order granting anticipatory bail becomes operative. 28) It is laid down by the Apex Court in various decisions including in Salauddin Abdulsamad Shaikh vs. State of Maharashtra (AIR-1997 SC 366; (1996)1 SCC 667 ); in K.L.Varma Vs. State (1997[2] ALD Crl. 139 SC); Adri Dharan Das Vs. State (2005)4 SCC 303 =2005 [1] ALD Crl. SC 64); in Sunita Devi vs. State of Bihar (2005)1 SCC 608 ) and also in few subsequent expressions that the granting of anticipatory bail by Court of Sessions or High Court u/Section.438 Cr.P.C, must be for a limited period and shall not be a blanket order till the end of the trial, but for a limited period of concession so that within the time prescribed, the accused has to approach the concerned Court, who can from perusal of the material on record, from investigation and its progress and from existence of prima facie case or not for grant of regular bail or not either Section 437 or Section 439 Cr.P.C, as the case may be. 29) However, after the expression of the Apex Court in Siddharam Satlingappa Mhetre Vs State of Maharashtra (AIR 2011 SC312=(2011)1SCC694), the cloud is cleared b y referring to the Constitution Bench expression in Gurbaksh Singh Sibbia Vs. 29) However, after the expression of the Apex Court in Siddharam Satlingappa Mhetre Vs State of Maharashtra (AIR 2011 SC312=(2011)1SCC694), the cloud is cleared b y referring to the Constitution Bench expression in Gurbaksh Singh Sibbia Vs. State of Punjab (1980)2 SCC 565 ), besides the other expressions including those referred supra viz., Pokar Ram vs. State of Rajasthan (1985)2 SCC 597 ); Salauddin Abdulsamad Shaikh vs. State of Maharashtra (1996)1 SCC 667 ); K.L.Verma vs. State (1998)9 SCC 348 ); Adri Dharan Das vs. State of West Bengal (2005)4 SCC 303 ); Sunita Devi vs. State of Bihar (2005)1 SCC 608 ); N.Meera Rani vs. Govt. of Tamil Nadu (1989)4 SCC 418 ); Vijayalaxmi Cashew Co. vs. Dy. Commercial Tax Officer (1996)1 SCC 468 ); Union of India vs. K.S.Subramanian (1976) 3 SCC 677 ); State of U.P. vs. Ram Chandra Trivedi (1976)4 SCC 52 ); Palanikumar vs. State (2007(4)CTC 1); A.K. Gopalan vs. State of Madras ( AIR 1950 SC 27 ); Kharak Singh v. State of U.P ( AIR 1963 SC 1295 ); Maneka Gandhi vs. Union of India (1978)1 SCC 248 ); State of AP. vs. Challa Ramakrishna Reddy (2000)5 SCC 712 ); Kartar Singh v. State of Punjab (1994)3 SCC 569 ); Francis Coralie Mullin vs. Administrator, U.T. of Delhi (1981)1 SCC 608 ); P.Rathinam/ Nagbhusan Patnaik vs. Union of India (1994) 3 SCC 394 ); Khedat Mazdoor Chetana Sangath vs. State of M.P (1994)6 SCC 260 ); Central Inland Water Transport Corporation Ltd. vs. Brojo Nath Ganguly (1986)3 SCC 156 ); Prem Shankar Shukla vs. Delhi Administration (1980)3 SCC 526 ); Bugdaycay v. Secretary of State for Home Dept (1987)1 All ER 940); Pretty v. Director of Public Prosecutions (2002)1 All ER 1); R. v. Curr (1972) SCR 889); M. vs. Organisation Belge (ILR(1972) 446); Joginder Kumar vs. State of U.P (1994)4 SCC 260 ); Naresh Kumar Yadav vs. Ravindra Kumar (2008)1 SCC 632 ); Young v. Bristol Aeroplane Co.Ltd (1944)2 All ER 293); Huddersfield Police Authority v. Watson (1947)2 All ER 193); Government of AP. vs. B.S.Rao(dead)by LRs. (2000)4 SCC 262 ); Union of India vs. Raghubir Singh (1989)2 SCC 754 ); Thota Sesharathamma vs. Thota Manikyamma(Dead) by LRs. vs. B.S.Rao(dead)by LRs. (2000)4 SCC 262 ); Union of India vs. Raghubir Singh (1989)2 SCC 754 ); Thota Sesharathamma vs. Thota Manikyamma(Dead) by LRs. (1991)4 SCC 312 ); Smt.Karmi vs. Amru (1972)4 SCC 86 ); Badri Pershad vs. Smt.Kanso Devi; R.Thiruvirkolam vs. Presiding Officer (1997)1 SCC 9 ); Gujarat Steel Tubes Ltd. vs. Mazdoor Sabha (1980)2 SCC 593 ); P.H.Kalyani vs. Air France (1964)2 SCR 104 ); Bharat Petroleum Corporation Ltd. vs. Mumbai Shramik Sangra (2001)4 SCC 448 ); Central Board of Dawoodi Bohra Community vs. State of Maharashtra (2005)2 SCC 673 ); State of Karnataka vs. Umadevi(3) (2006)4 SCC 1 ); Subhash Chandra vs. Delhi Subordinate Services Selection Board (2009)15 SCC 458 ); S. Pushpa vs. Sivachanmugavelu (2005)3 SCC 1 ); Marri Chandra Shekhar Rao vs. Seth G.S. Medical College (1990)3 SCC 139); E.V.Chinnaiah vs. State of AP (2005)1 SCC 394 ); Official Liquidator vs. Dayanand (2008)10 SCC 1 ) and also referring to "The Development of Constitutional Guarantee of Liberty" by Roscoe Pound; Halsbury's Laws of England; Dicey on Constitutional Law; "Liberty in the Modern State" by Harold J.Laski; Chambers' Twentieth Century Dictionary etc., that anticipatory bail to be granted is as good as regular bail and shall not be confined for a limited period. 30) In the latest expression of the Apex Court in State of Madhya Pradesh Vs Pradeep Sharma ( 2014(2) SCC 171 ) – referring to Adri Dharan Das (supra), it was reiterated that the grant of anticipatory bail is somewhat extra ordinary in character and it is to be exercised only exceptional cases where it appears that the person may be falsely implicated or where there are reasonable grounds holding that a person accused of an offence is not likely to otherwise misuse his liberty. 31) In Savitri Agarwal vs. State of Maharashtra - in dealing with grant of anticipatory bail in a case under Section 498A IPC, the Apex Court observed while reviewing the law on the subject that “At this juncture, it would be appropriate to note that the view expressed by this Court in Adri Dharan Das (supra) to the effect that while dealing with an application under Section 438 of the Code, the Court cannot pass an interim order restraining arrest as it will amount to interference in the investigation, does not appear to be in consonance with the opinion of the Constitution Bench in Sibbia's case (supra). Similarly, the observation that power under Section 438 is to be exercised only in exceptional cases seems to be based on the decision in Balchand's case (supra), which has not been fully approved by the Constitution Bench. 32) On this aspect, the Constitution Bench stated thus: The observations made in Balchand Jain 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 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 in an altogether different context on an altogether different point". (Emphasis Supplied) 33) It would also be of some significance to mention that Section 438 has been amended by the Code of Criminal Procedure (Amendment) Act, 2005. The amended Section is more or less in line with the parameters laid down in Sibbia's case (supra). However, the amended provision has not yet been brought into force…..” In this context, it is important to note the 9 guidelines as laid down by the constitution bench of the Apex Court in Gurbaksh Singh Sibbia Vs. State of Punjab (1980)2 SCC 565 ), which the Courts are required to keep in mind while dealing with an application for grant of anticipatory bail are: 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. 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 Backhand Jain’s case (AIR 1976 SC), 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 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. 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 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 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. In Siddharam Satlingappa Mhetre Vs State of Maharashtra-AIR 2011 SC312=2011(1)SCC694 it was held that “3. The society has a vital interest in grant or refusal of bail because every criminal offence is the offence against the State. The order granting or refusing bail must reflect perfect balance between the conflicting interests, namely, sanctity of individual liberty and the interest of the society. The law of bails dovetails two conflicting interests namely, on the one hand, the requirements of shielding the society from the hazards of those committing crimes and potentiality of repeating the same crime while on bail and on the other hand absolute adherence of the fundamental principle of criminal jurisprudence regarding presumption of innocence of an accused until he is found guilty and the sanctity of individual liberty. Just as the Liberty is precious to an individual, so is the society's interest in maintenance of peace, law and order. Both are equally important”. “8. The law relating to bail is contained in Sections 436 to 450 of chapter XXXIII of the Code of Criminal Procedure, 1973. Section 436 deals with situation, in what kind of cases bail should be granted. Section436 deals with the situation when bail may be granted in case of a bailable offence. Section 439 deals with the special powers of the High Court or the Court of Sessions regarding grant of bail. Under Sections 437 and 439 bail is granted when the accused or the detenu is in jail or under detention. 9. The provision of anticipatory bail was introduced for the first time in the Code of Criminal Procedure in 1973. 10. Section 438 of the Code of Criminal Procedure, 1973 reads as under: 438. Under Sections 437 and 439 bail is granted when the accused or the detenu is in jail or under detention. 9. The provision of anticipatory bail was introduced for the first time in the Code of Criminal Procedure in 1973. 10. Section 438 of the Code of Criminal Procedure, 1973 reads as under: 438. Direction for grant of bail to person apprehending arrest.- (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 Session 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 (iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail: Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this Subsection or has rejected the application for grant of anticipatory bail, it shall be open to an officer in-charge of a police station to arrest, without warrant, the applicant on the basis of the accusation apprehended in such application. (1-A) Where the Court grants an interim order under Sub-section (1), it shall forthwith cause a notice being not less than seven days notice, together with a copy of such order to be served on the Public Prosecutor and the Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court. (1-B) The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice. (1-B) The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice. (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 thinks 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 section. (3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, 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 if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under Sub-section (1). Why was the provision of anticipatory bail introduced? Historical perspective: 11. The Code of Criminal Procedure, 1898 did not contain any specific provision of anticipatory bail. Under the old Code, there was a sharp difference of opinion amongst the various High Courts on the question as to whether the courts had an inherent power to pass an order of bail in anticipation of arrest, the preponderance of view being that it did not have such power. 12. Under the old Code, there was a sharp difference of opinion amongst the various High Courts on the question as to whether the courts had an inherent power to pass an order of bail in anticipation of arrest, the preponderance of view being that it did not have such power. 12. The Law Commission of India, in its 41st Report dated September 24, 1969 pointed out the necessity of introducing a provision in the Code of Criminal Procedure enabling the High Court and the Court of Sessions to grant "anticipatory bail". It observed in para 39.9 of its report (Volume I) and the same is set out as under: The suggestion for directing the release of a person on bail prior to his arrest (commonly known as "anticipatory bail") was carefully considered by us. Though there is a conflict of judicial opinion about the power of a court to grant anticipatory bail, the majority view is that there is no such power under the existing provisions of the Code. The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. In recent times, with the accentuation of political rivalry, this tendency is showing signs of steady increase. Apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail. The Law commission recommended acceptance of the suggestion. 13. The Law Commission in para 31 of its 48th Report(July,1972) made the following comments on the aforesaid clause: The Bill introduces a provision for the grant of anticipatory bail. This is substantially in accordance with the recommendation made by the previous Commission. We agree that this would be a useful addition, though we must add that it is in very exceptional cases that such a power should be exercised. We are further of the view that in order to ensure that the provision is not put to abuse at the instance of unscrupulous petitioners, the final order should be made only after notice to the Public Prosecutor. We are further of the view that in order to ensure that the provision is not put to abuse at the instance of unscrupulous petitioners, the final order should be made only after notice to the Public Prosecutor. The initial order should only be an interim one. Further, the relevant section should make it clear that the direction can be issued only for reasons to be recorded, and if the court is satisfied that such a direction is necessary in the interests of justice. It will also be convenient to provide that notice of the interim order as well as of the final orders will be given to the Superintendent of Police forthwith. 14. Police custody is an inevitable concomitant of arrest for non-bailable offences. The concept of anticipatory bail is that a person who apprehends his arrest in a non-bailable case can apply for grant of bail to the Court of Sessions or to the High Court before the arrest. Scope and ambit of Section 438 Code of Criminal Procedure: 15. It is apparent from the Statement of Objects and Reasons for introducing Section 438 in the Code of Criminal Procedure, 1973 that it was felt imperative to evolve a device by which an alleged accused is not compelled to face ignominy and disgrace at the instance of influential people who try to implicate their rivals in false cases. 16. The Code of Criminal Procedure, 1898 did not contain any specific provision corresponding to the present Section 438 Code of Criminal Procedure The only two clear provisions of law by which bail could be granted were Sections 437 and 439 of the Code. Section 438 was incorporated in the Code of Criminal Procedure, 1973 for the first time. 17. It is clear from the Statement of Objects and Reasons that the purpose of incorporating Section 438 in the Code of Criminal Procedure was to recognize the importance of personal liberty and freedom in a free and democratic country. When we carefully analyze this section, the wisdom of the legislature becomes quite evident and clear that the legislature was keen to ensure respect for the personal liberty and also pressed in service the age-old principle that an individual is presumed to be innocent till he is found guilty by the court. 27. The Constitution Bench of this Court in Gurbaksh Singh Sibbia and Ors. 27. The Constitution Bench of this Court in Gurbaksh Singh Sibbia and Ors. v. State of Punjab (1980) 2 SCC 565 ……relevant observations are set out as under: ...A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hall mark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail. 15. Judges have to decide cases as they come before them, mindful of the need to keep passions and prejudices out of their decisions. And it will be strange if, by employing judicial artifices and techniques, we cut down the discretion so wisely conferred upon the courts, by devising a formula which will confine the power to grant anticipatory bail within a strait-jacket. While laying down cast-iron rules in a matter like granting anticipatory bail, as the High Court has done, it is apt to be overlooked that even judges can have but an imperfect awareness of the needs of new situations. Life is never static and every situation has to be assessed in the context of emerging concerns as and when it arises. therefore, even if we were to frame a 'Code for the grant of anticipatory bail', which really is the business of the legislature, it can at best furnish broad guide-lines and cannot compel blind adherence. In which case to grant bail and in which to refuse it is, in the very nature of things, a matter of discretion. But apart from the fact that the question is inherently of a kind which calls for the use of discretion from case to case, the legislature has, in terms express, relegated the decision of that question to the discretion of the court, by providing that it may grant bail "if it thinks fit". The concern of the courts generally is to preserve their discretion without meaning to abuse it. The concern of the courts generally is to preserve their discretion without meaning to abuse it. It will be strange if we exhibit concern to stultify the discretion conferred upon the courts by law. Relevance and importance of personal liberty: 41. All human beings are born with some unalienable rights like life, liberty and pursuit of happiness. The importance of these natural rights can be found in the fact that these are fundamental for their proper existence and no other right can be enjoyed without the presence of right to life and liberty. 42. Life bereft of liberty would be without honour and dignity and it would lose all significance and meaning and the life itself would not be worth living. That is why "liberty" is called the very quintessence of a civilized existence. 43. Origin of "liberty"' can be traced in the ancient Greek civilization. The Greeks distinguished between the liberty of the group and the liberty of the individual. In 431 B.C., an Athenian statesman described that the concept of liberty was the outcome of two notions, firstly, protection of group from attack and secondly, the ambition of the group to realize itself as fully as possible through the self-realization of the individual by way of human reason. Greeks assigned the duty of protecting their liberties to the State. According to Aristotle, as the state was a means to fulfill certain fundamental needs of human nature and was a means for development of individuals' personality in association of fellow citizens so it was natural and necessary to man. Plato found his "republic" as the best source for the achievement of the self-realization of the people. 44. Chambers' Twentieth Century Dictionary defines "liberty" as "Freedom to do as one pleases, the unrestrained employment of natural rights, power of free chance, privileges, exemption, relaxation of restraint, the bounds within which certain privileges are enjoyed, freedom of speech and action beyond ordinary civility". 45. It is very difficult to define the "liberty". It has many facets and meanings. The philosophers and moralists have praised freedom and liberty but this term is difficult to define because it does not resist any interpretation. The term "liberty" may be defined as the affirmation by an individual or group of his or its own essence. 45. It is very difficult to define the "liberty". It has many facets and meanings. The philosophers and moralists have praised freedom and liberty but this term is difficult to define because it does not resist any interpretation. The term "liberty" may be defined as the affirmation by an individual or group of his or its own essence. It needs the presence of three factors, firstly, harmonious balance of personality, secondly, the absence of restraint upon the exercise of that affirmation and thirdly, organization of opportunities for the exercise of a continuous initiative. 46. "Liberty" may be defined as a power of acting according to the determinations of the will. According to Harold Laski, liberty was essentially an absence of restraints and John Stuard Mill viewed that "all restraint", qua restraint is an evil". In the words of Jonathon Edwards, the meaning of "liberty" and freedom is: Power, opportunity or advantage that any one has to do as he pleases, or, in other words, his being free from hindrance or impediment in the way of doing, or conducting in any respect, as he wills. 47. It can be found that "liberty" generally means the prevention of restraints and providing such opportunities, the denial of which would result in frustration and ultimately disorder. Restraints on man's liberty are laid down by power used through absolute discretion, which when used in this manner brings an end to "liberty" and freedom is lost. At the same time "liberty" without restraints would mean liberty won by one and lost by another. So "liberty" means doing of anything one desires but subject to the desire of others. 48. As John E.E.D. in his monograph Action on "Essays on Freedom and Power" wrote that Liberty is one of the most essential requirements of the modern man. It is said to be the delicate fruit of a mature civilization. 49. A distinguished former Attorney General for India, M.C. Setalvad in his treatise "War and civil Liberties" observed that the French Convention stipulates common happiness as the end of the society, whereas Bentham postulates the greatest happiness of the greatest number as the end of law. Article 19 of the Indian Constitution averts to freedom and it enumerates certain rights regarding individual freedom. These rights are vital and most important freedoms which lie at the very root of liberty. 50. Article 19 of the Indian Constitution averts to freedom and it enumerates certain rights regarding individual freedom. These rights are vital and most important freedoms which lie at the very root of liberty. 50. He further observed that the concept of civil liberty is essentially rooted in the philosophy of individualism. According to this doctrine, the highest development of the individual and the enrichment of his personality are the true function and end of the state. It is only when the individual has reached the highest state of perfection and evolved what is best in him that society and the state can reach their goal of perfection. In brief, according to this doctrine, the state exists mainly, if not solely, for the purpose of affording the individual freedom and assistance for the attainment of his growth and perfection. The state exists for the benefit of the individual. 51. Mr.Setalvad in the same treatise further observed that it is also true that the individual cannot attain the highest in him unless he is in possession of certain essential liberties which leave him free as it were to breathe and expand. According to Justice Holmes, these liberties are the indispensable conditions of a free society. The justification of the existence of such a state can only be the advancement of the interests of the individuals who compose it and who are its members. Therefore, in a properly constituted democratic state, there cannot be a conflict between the interests of the citizens and those of the state. The harmony, if not the identity, of the interests of the state and the individual, is the fundamental basis of the modern Democratic National State. And, yet the existence of the state and all government and even all law must mean in a measure the curtailment of the liberty of the individual. But such a surrender and curtailment of his liberty is essential in the interests of the citizens of the State. The individuals composing the state must, in their own interests and in order that they may be assured the existence of conditions in which they can, with a reasonable amount of freedom, carry on their other activities, endow those in authority over them to make laws and regulations and adopt measures which impose certain restrictions on the activities of the individuals. 52. 52. Harold J. Laski in his monumental work in "Liberty in the Modern State" observed that liberty always demands a limitation on political authority. Power as such when uncontrolled is always the natural enemy of freedom. 53. Roscoe Pound, an eminent and one of the greatest American Law Professors aptly observed in his book "The Development of Constitutional Guarantee of Liberty" that whatever, 'liberty' may mean today, the liberty is guaranteed by our bills of rights, "is a reservation to the individual of certain fundamental reasonable expectations involved in life in civilized society and a freedom from arbitrary and unreasonable exercise of the power and authority of those who are designated or chosen in a politically organized society to adjust that society to individuals." 54. Blackstone in "Commentaries on the Laws of England", Vol.I, p.134 aptly observed that "Personal liberty consists in the power of locomotion, of changing situation or moving one's person to whatsoever place one's own inclination may direct, without imprisonment or restraint unless by due process of law". 55. According to Dicey, a distinguished English author of the Constitutional Law in his treatise on Constitutional Law observed that, "Personal liberty, as understood in England, means in substance a person's right not to be subjected to imprisonment, arrest, or other physical coercion in any manner that does not admit of legal justification." [Dicey on Constitutional Law, 9th Edn., pp.207-08]. According to him, it is the negative right of not being subjected to any form of physical restraint or coercion that constitutes the essence of personal liberty and not mere freedom to move to any part of the Indian territory. In ordinary language personal liberty means liberty relating to or concerning the person or body of the individual, and personal liberty in this sense is the antithesis of physical restraint or coercion. 56. Eminent English Judge Lord Alfred Denning observed: By personal freedom I mean freedom of every law abiding citizen to think what he will, to say what he will, and to go where he will on his lawful occasion without hindrance from any person.... It must be matched, of course, with social security by which I mean the peace and good order of the community in which we live. 57. It must be matched, of course, with social security by which I mean the peace and good order of the community in which we live. 57. Eminent former Judge of this Court, Justice H.R. Khanna in a speech as published in 2 IJIL, Vol.18 (1978), p.133 observed that "liberty postulates the creation of a climate wherein there is no suppression of the human spirits, wherein, there is no denial of the opportunity for the full growth of human personality, wherein head is held high and there is no servility of the human mind or enslavement of the human body". Right to life and personal liberty under the Constitution: 58. We deem it appropriate to deal with the concept of personal liberty under the Indian and other Constitutions. 59. The Fundamental Rights represent the basic values enriched by the people of this country. The aim behind having elementary right of the individual such as the Right to Life and Liberty is not fulfilled as desired by the framers of the Constitution. It is to preserve and protect certain basic human rights against interference by the state. The inclusion of a Chapter in Constitution is in accordance with the trends of modern democratic thought. The object is to ensure the inviolability of certain essential rights against political vicissitudes. 60. The framers of the Indian Constitution followed the American model in adopting and incorporating the Fundamental Rights for the people of India. American Constitution provides that no person shall be deprived of his life, liberty, or property without due process of law. The due process clause not only protects the property but also life and liberty, similarly Article 21 of the Indian Constitution asserts the importance of Life and Liberty. The said Article reads as under: no person shall be deprived for his life or personal liberty except according to procedure established by law the right secured by Article 21 is available to every citizen or noncitizen, according to this article, two rights are secured. 1. Right to life 2 Right to personal liberty. 61. Life and personal liberty are the most prized possessions of an individual. The inner urge for freedom is a natural phenomenon of every human being. Respect for life, liberty and property is not merely a norm or a policy of the State but an essential requirement of any civilized society. 62. Right to life 2 Right to personal liberty. 61. Life and personal liberty are the most prized possessions of an individual. The inner urge for freedom is a natural phenomenon of every human being. Respect for life, liberty and property is not merely a norm or a policy of the State but an essential requirement of any civilized society. 62. This Court defined the term "personal liberty" immediately after the Constitution came in force in India in the case of A.K. Gopalan v. The State of Madras AIR 1950 SC 27 . The expression 'personal liberty' has wider as well narrow meaning. In the wider sense it includes not only immunity from arrest and detention but also freedom of speech, association etc. In the narrow sense, it means immunity from arrest and detention. The juristic conception of 'personal liberty', when used the latter sense, is that it consists freedom of movement and locomotion. 63. Mukherjea, J. in the said judgment observed that 'Personal Liberty' means liberty relating to or concerning the person or body of the individual and it is, in this sense, antithesis of physical restraint or coercion. 'Personal Liberty' means a personal right not to be subjected to imprisonment, arrest or other physical coercion in any manner that does not admit of legal justification. This negative right constitutes the essence of personal liberty. Patanjali Shastri, J. however, said that whatever may be the generally accepted connotation of the expression 'personal liberty', it was used in Article 21 in a sense which excludes the freedom dealt with in Article 19. Thus, the Court gave a narrow interpretation to 'personal liberty'. This Court excluded certain varieties of rights, as separately mentioned in Article 19, from the purview of 'personal liberty' guaranteed by Article 21. 64. In Kharak Singh v. State of U.P. and Ors. AIR 1963 SC 1295 , Subba Rao, J. defined 'personal liberty, as a right of an individual to be free from restrictions or encroachment on his person whether these are directly imposed or indirectly brought about by calculated measure. The court held that 'personal liberty' in Article 21 includes all varieties of freedoms except those included in Article19. 65. In Maneka Gandhi v. Union of India and Anr. (1978) 1 SCC 248 , this Court expanded the scope of the expression 'personal liberty' as used in Article 21 of the Constitution of India. The court held that 'personal liberty' in Article 21 includes all varieties of freedoms except those included in Article19. 65. In Maneka Gandhi v. Union of India and Anr. (1978) 1 SCC 248 , this Court expanded the scope of the expression 'personal liberty' as used in Article 21 of the Constitution of India. The court rejected the argument that the expression 'personal liberty' must be so interpreted as to avoid overlapping between Article 21 and Article 19(1). It was observed: "The expression 'personal liberty' in Article21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of a man and some of them have been raised to the status of distinct fundamental rights and given additional protection under Article 19." So, the phrase 'personal liberty' is very wide and includes all possible rights which go to constitute personal liberty, including those which are mentioned in Article 19. 66. Right to life is one of the basic human right and not even the State has the authority to violate that right. [State of A.P. v. Challa Ramakrishna Reddy and Ors. (2000) 5 SCC 712 ]. 67. Article 21 is a declaration of deep faith and belief in human rights. In this pattern of guarantee woven in Chapter III of this Constitution, personal liberty of man is at root of Article 21 and each expression used in this Article enhances human dignity and values. It lays foundation for a society where rule of law has primary and not arbitrary or capricious exercise of power. [Kartar Singh v. State of Punjab and Ors. (1994) 3 SCC 569 . 68. While examining the ambit, scope and content of the expression "personal liberty" in the said case, it was held that the term is used in this Article as a compendious term to include within itself all varieties of rights which goes to make up the "personal liberties" or man other than those dealt within several clauses of Article 19(1). While Article 19(1) deals with particular species or attributes of that freedom, "personal liberty" in Article 21 takes on and comprises the residue. 69. The early approach to Article 21 which guarantees right to life and personal liberty was circumscribed by literal interpretation in A.K. Gopalan (supra). While Article 19(1) deals with particular species or attributes of that freedom, "personal liberty" in Article 21 takes on and comprises the residue. 69. The early approach to Article 21 which guarantees right to life and personal liberty was circumscribed by literal interpretation in A.K. Gopalan (supra). But in course of time, the scope of this application of the Article against arbitrary encroachment by the executives has been expanded by liberal interpretation of the components of the Article in tune with the relevant international understanding. Thus protection against arbitrary privation of "life" no longer means mere protection of death, or physical injury, but also an invasion of the right to "live" with human dignity and would include all these aspects of life which would go to make a man's life meaningful and worth living, such as his tradition, culture and heritage. [Francis Coralie Mullin v. Administrator, Union Territory of Delhi and Ors. (1981) 1 SCC 608 ]. 70. Article 21 has received very liberal interpretation by this Court. It was held: "The right to live with human dignity and same does not connote continued drudging. It takes within its fold some process of civilization which makes life worth living and expanded concept of life would mean the tradition, culture, and heritage of the person concerned." [P. Rathinam/Nagbhusan Patnaik v. Union of India and Anr. (1994) 3 SCC 394 .] 71. The object of Article 21 is to prevent encroachment upon personal liberty in any manner. Article 21 is repository of all human rights essentially for a person or a citizen. A fruitful and meaningful life presupposes full of dignity, honour, health and welfare. In the modern "Welfare Philosophy", it is for the State to ensure these essentials of life to all its citizens, and if possible to non-citizens. While invoking the provisions of Article 21, and by referring to the oft-quoted statement of Joseph Addison, "Better to die ten thousand deaths than wound my honour", the Apex court in Khedat Mazdoor Chetana Sangath v. State of M.P. and Ors. (1994) 6 SCC 260 posed to itself a question "If dignity or honour vanishes what remains of life"? This is the significance of the Right to Life and Personal Liberty guaranteed under the Constitution of India in its third part. 72. This Court in Central Inland Water Transport Corporation Ltd. and Anr. v. Brojo Nath Ganguly and Anr. (1994) 6 SCC 260 posed to itself a question "If dignity or honour vanishes what remains of life"? This is the significance of the Right to Life and Personal Liberty guaranteed under the Constitution of India in its third part. 72. This Court in Central Inland Water Transport Corporation Ltd. and Anr. v. Brojo Nath Ganguly and Anr. (1986) 3 SCC 156 observed that the law must respond and be responsive to the felt and discernible compulsions of circumstances that would be equitable, fair and justice, and unless there is anything to the contrary in the statute, Court must take cognizance of that fact and act accordingly. 73. This Court remarked that an under-trial prisoner should not be put in fetters while he is being taken from prison to Court or back to prison from Court. Steps other than putting him in fetters will have to be taken to prevent his escape. 74. In Prem Shankar Shukla v. Delhi Administration (1980) 3 SCC 526 , this Court has made following observations: ...The Punjab Police Manual, in so far as it puts the ordinary Indian beneath the better class breed (para 26.21A and 26.22 of Chapter XXVI) is untenable and arbitrary. Indian humans shall not be dichotomised and the common run discriminated against regarding handcuffs. The provisions in para 26.22 that every under-trial who is accused of a non-bailable offence punishable with more than 3 years prison term shall be routinely handcuffed is violative of Articles 14, 19 and 21. The nature of the accusation is not the criterion. The clear and present danger of escape breaking out of the police control is the determinant. And for this there must be clear material, not glib assumption, record of reasons and judicial oversight and summary hearing and direction by the court where the victim is produced. ... Handcuffs are not summary punishment vicariously imposed at police level, at once obnoxious and irreversible. Armed escorts, worth the salt, can overpower any unarmed under-trial and extra guards can make up exceptional needs. In very special situations, the application of irons is not ruled out. The same reasoning applies to (e) and (f). Why torture the prisoner because others will demonstrate or attempt his rescue? The plain law of under-trial custody is thus contrary to the unedifying escort practice. In very special situations, the application of irons is not ruled out. The same reasoning applies to (e) and (f). Why torture the prisoner because others will demonstrate or attempt his rescue? The plain law of under-trial custody is thus contrary to the unedifying escort practice. (Para 31) Even in cases where, in extreme circumstances, handcuffs have to be put on the prisoner, the escorting authority must record contemporaneously the reason for doing so. Otherwise, under Article 21 the procedure will be unfair and bad in law. The minions of the police establishment must make good their security recipes by getting judicial approval. And, once the court directs that handcuffs shall be off, no escorting authority can overrule judicial direction. This is implicit in Article 21 which insists upon fairness, reasonableness and justice in the very procedure which authorities stringent deprivation of life and liberty. (Para 30) It is implicit in Articles 14 and 19 that when there is no compulsive need to fetter a person's limbs, it is sadistic, capricious, despotic and demoralizing to humble a man by manacling him. Such arbitrary conduct surely slaps Article 14 on the face. The minimal freedom of movement which even a detainee is entitled to under Article 19 cannot be cut down cruelly by application of handcuffs or other hoops. It will be unreasonable so to do unless the State is able to make out that no other practical way of forbidding escape is available, the prisoner being so dangerous and desperate and the circumstances so hostile to safekeeping. (Para 23) Whether handcuffs or other restraint should be imposed on a prisoner is a matter for the decision of the authority responsible for his custody. But there is room for imposing supervisory regime over the exercise of that power. One sector of supervisory jurisdiction could appropriately lie with the court trying the accused, and it would be desirable for the custodial authority to inform that court of the circumstances in which, and the justification for, imposing a restraint on the body of the accused. It should be for the court concerned to work out the modalities of the procedure requisite for the purpose of enforcing such control. 75. It should be for the court concerned to work out the modalities of the procedure requisite for the purpose of enforcing such control. 75. After dealing with the concept of life and liberty under the Indian Constitution, we would like to have the brief survey of other countries to ascertain how life and liberty has been protected in other countries. UNITED KINGDOM 76. Life and personal liberty has been given prime importance in the United Kingdom. It was in 1215 that the people of England revolted against King John and enforced their rights, first time the King had acknowledged that there were certain rights of the subject could be called Magna Carta 1215. In 1628 the petition of rights was presented to King Charles-I which was the 1st step in the transfer of Sovereignty from the King to Parliament. It was passed as the Bill of Rights 1689. 77. In the Magna Carta, it is stated "no free man shall be taken, or imprisoned or disseised or outlawed or banished or any ways destroyed, nor will the King pass upon him or commit him to prison, unless by the judgment of his peers or the law of the land". 78. Right to life is the most fundamental of all human rights and any decision affecting human right or which may put an individual's life at risk must call for the most anxious scrutiny. See: Bugdaycay v. Secretary of State for the Home Department (1987) 1 All ER 940. The sanctity of human life is probably the most fundamental of the human social values. It is recognized in all civilized societies and their legal system and by the internationally recognized statements of human rights. See: R on the application of Pretty v. Director of Public Prosecutions (2002) 1 All ER 1. U.S.A.: 79. The importance of personal liberty is reflected in the Fifth Amendment to the Constitution of U.S.A. (1791) which declares as under: No person shall be .... deprived of his life, liberty or property, without due process of law." (The 'due process' clause was adopted in Section 1(a) of the Canadian Bill of Rights Act, 1960. In the Canada Act, 1982, this expression has been substituted by 'the principles of fundamental justice' [Section 7]. 80. The Fourteenth Amendment imposes similar limitation on the State authorities. These two provisions are conveniently referred to as the 'due process clauses'. In the Canada Act, 1982, this expression has been substituted by 'the principles of fundamental justice' [Section 7]. 80. The Fourteenth Amendment imposes similar limitation on the State authorities. These two provisions are conveniently referred to as the 'due process clauses'. Under the above clauses the American Judiciary claims to declare a law as bad, if it is not in accordance with 'due process', even though the legislation may be within the competence of the Legislature concerned. Due process is conveniently understood means procedural regularity and fairness. (Constitutional Interpretation by Craig R. Ducat, 8th Edn. 2002 p.475.). WEST GERMANY: 81. Article 2(2) of the West German Constitution (1948) declares: Everyone shall have the right to life and physical inviolability. The freedom of the individual shall be inviolable. These rights may be interfered with only on the basis of the legal order. Though the freedom of life and liberty guaranteed by the above Article may be restricted, such restriction will be valid only if it is in conformity with the 'legal order' (or 'pursuant to a law, according to official translation). Being a basic right, the freedom guaranteed by Article 2(2) is binding on the legislative, administrative and judicial organs of the State [Article 1(3)]. This gives the individual the rights to challenge the validity of a law or an executive act violative the freedom of the person by a constitutional complaint to the Federal Constitutional Court, under Article 93. Procedural guarantee is given by Articles 103(1) and 104. Article 104(1)-2(2) provides: (1) The freedom of the individual may be restricted only on the basis of a formal law and only with due regard to the forms prescribed therein.... (2) Only the Judge shall decide on the admissibility and continued deprivation of liberty. 82. These provisions correspond to Article 21 of our Constitution and the court is empowered to set a man to liberty if it appears that he has been imprisoned without the authority of a formal law or in contravention of the procedure prescribed there. JAPAN: 83. Article XXXI of the Japanese Constitution of 1946 says: No person shall be deprived of life or liberty nor shall any other criminal penalty be imposed, except according to procedure established by law. This article is similar to Article 21 of our Constitution save that it includes other criminal penalties, such as fine or forfeiture within its ambit. CANADA: 84. Article XXXI of the Japanese Constitution of 1946 says: No person shall be deprived of life or liberty nor shall any other criminal penalty be imposed, except according to procedure established by law. This article is similar to Article 21 of our Constitution save that it includes other criminal penalties, such as fine or forfeiture within its ambit. CANADA: 84. Section 1(1) of the Canadian Bill of Rights Act, 1960, adopted the 'Due Process' Clause from the American Constitution. But the difference in the Canadian set-up was due to the fact that this Act was not a constitutional instrument to impose a direct limitation on the Legislature but only a statute for interpretation of Canadian status, which, again, could be excluded from the purview of the Act of 1960, in particular cases, by an express declaration made by the Canadian Parliament itself (Section 2). The result was obvious: The Canadian Supreme Court in R. v. Curr (1972) SCR 889 held that the Canadian Court would not import 'substantive reasonableness' into Section 1(a), because of the unsalutary experience of substantive due process in the U.S.A.; and that as to 'procedural reasonableness', Section 1(a) of the Bill of Rights Act only referred to 'the legal processes recognized by Parliament and the Courts in Canada'. The result was that in Canada, the 'due process clause' lost its utility as an instrument of judicial review of legislation and it came to mean practically the same thing as whatever the Legislature prescribes, -much the same as 'procedure established by law' in Article 21 of the Constitution of India, as interpreted in A.K. Gopalan (supra). BANGADESH: 85. Article 32 of the Constitution of Bangladesh 1972 [3 SCW 385] reads as under: No person shall be deprived of life or personal liberty save in accordance with law. This provision is similar to Article 21 of the Indian Constitution. Consequently, unless controlled by some other provision, it should be interpreted as in India. PAKISTAN 86. Article 9 Right to life and Liberty. -"Security of Person: No person shall be deprived of life and liberty save in accordance with law." NEPAL: 87. In the 1962-Constitution of Nepal, there is Article 11(1) which deals with right to life and liberty which is identical with Article 21 of the Indian Constitution. INTERNATIONAL CHARTERS 88. Universal Declaration, 1948. Article 9 Right to life and Liberty. -"Security of Person: No person shall be deprived of life and liberty save in accordance with law." NEPAL: 87. In the 1962-Constitution of Nepal, there is Article 11(1) which deals with right to life and liberty which is identical with Article 21 of the Indian Constitution. INTERNATIONAL CHARTERS 88. Universal Declaration, 1948. - Article 3 of the Universal Declaration says: Everyone has the right to life, liberty and security of person. Article 9 provides: No one shall be subjected to arbitrary arrest, detention or exile. Cl.10 says: Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him. [As to its legal effect, see M. v. Organisation Belge ILR (1972) 446. 89. Covenant on civil and Political Rights - Article 9(1) of the U.N. 1966, 1966 says: Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.’ 90. European Convention on Human Rights, 1950. – This Convention contains a most elaborate and detailed codification of the rights and safeguards for the protection of life and personal liberty against arbitrary invasion. 91. In every civilized democratic country, liberty is considered to be the most precious human right of every person. The Law Commission of India in its 177th Report under the heading 'Introduction to the doctrine of "arrest" has described as follows: Liberty is the most precious of all the human rights". It has been the founding faith of the human race for more than 200 years. Both the American Declaration of Independence, 1776 and the French Declaration of the Rights of Man and the Citizen, 1789, spoke of liberty being one of the natural and inalienable rights of man. The universal declaration of human rights adopted by the general assembly on United Nations on December 10, 1948 contains several articles designed to protect and promote the liberty of individual. So does the international covenant on civil and political rights, 1996. The universal declaration of human rights adopted by the general assembly on United Nations on December 10, 1948 contains several articles designed to protect and promote the liberty of individual. So does the international covenant on civil and political rights, 1996. Above all, Article 21 of the Constitution of India proclaims that no one shall be deprived of his right to personal liberty except in accordance with the procedure prescribed by law. Even Article 20(1) & (2) and Article 22 are born out of a concern for human liberty. As it is often said, "one realizes the value of liberty only when he is deprived of it." Liberty, along with equality is the most fundamental of human rights and the fundamental freedoms guaranteed by the Constitution. Of equal importance is the maintenance of peace, law and order in the society. Unless, there is peace, no real progress is possible. Societal peace lends stability and security to the polity. It provides the necessary conditions for growth, whether it is in the economic sphere or in the scientific and technological spheres. 92. Just as the Liberty is precious to an individual, so is the society's interest in maintenance of peace, law and order. Both are equally important. 93. It is a matter of common knowledge that a large number of undertrials are languishing in jail for a long time even for allegedly committing very minor offences. This is because Section 438 Code of Criminal Procedure has not been allowed its full play. The Constitution Bench in Sibbia's case (supra) clearly mentioned that Section 438 Code of Criminal Procedure is extraordinary because it was incorporated in the Code of Criminal Procedure, 1973 and before that other provisions for grant of bail were Sections 437 and 439 Code of Criminal Procedure It is not extraordinary in the sense that it should be invoked only in exceptional or rare cases. Some courts of smaller strength have erroneously observed that Section 438 Code of Criminal Procedure should be invoked only in exceptional or rare cases. Those orders are contrary to the law laid down by the judgment of the Constitution Bench in Sibbia's case (supra). Some courts of smaller strength have erroneously observed that Section 438 Code of Criminal Procedure should be invoked only in exceptional or rare cases. Those orders are contrary to the law laid down by the judgment of the Constitution Bench in Sibbia's case (supra). According to the report of the National Police Commission, the power of arrest is grossly abused and clearly violates the personal liberty of the people, as enshrined under Article 21 of the Constitution, then the courts need to take serious notice of it. When conviction rate is admittedly less than 10%, then the police should be slow in arresting the accused. The courts considering the bail application should try to maintain fine balance between the societal interest vis-a-vis personal liberty while adhering to the fundamental principle of criminal jurisprudence that the accused that the accused is presumed to be innocent till he is found guilty by the competent court. 94. The complaint filed against the accused needs to be thoroughly examined including the aspect whether the complainant has filed false or frivolous complaint on earlier occasion. The court should also examine the fact whether there is any family dispute between the accused and the complainant and the complainant must be clearly told that if the complaint is found to be false or frivolous, then strict action will be taken against him in accordance with law. If the connivance between the complainant and the investigating officer is established then action be taken against the investigating officer in accordance with law. 95. The gravity of charge and exact role of the accused must be properly comprehended. Before arrest, the arresting officer must record the valid reasons which have led to the arrest of the accused in the case diary. In exceptional cases the reasons could be recorded immediately after the arrest, so that while dealing with the bail application, the remarks and observations of the arresting officer can also be properly evaluated by the court. 96. It is imperative for the courts to carefully and with meticulous precision evaluate the facts of the case. The discretion must be exercised on the basis of the available material and the facts of the particular case. 96. It is imperative for the courts to carefully and with meticulous precision evaluate the facts of the case. The discretion must be exercised on the basis of the available material and the facts of the particular case. In cases where the court is of the considered view that the accused has joined investigation and he is fully cooperating with the investigating agency and is not likely to abscond, in that event, custodial interrogation should be avoided. 97. A great ignominy, humiliation and disgrace is attached to the arrest. Arrest leads to many serious consequences not only for the accused but for the entire family and at times for the entire community. Most people do not make any distinction between arrest at a pre-conviction stage or post-conviction stage. Whether the powers under Section 438 Code of Criminal Procedure are subject to limitation of Section 437 Code of Criminal Procedure? 98. The question which arises for consideration is whether the powers under Section 438 Code of Criminal Procedure are unguided or uncanalised or are subject to all the limitations of Section 437 Code of Criminal Procedure? The Constitution Bench in Sibbia's case (supra) has clearly observed that there is no justification for reading into Section 438 Code of Criminal Procedure and the limitations mentioned in Section 437 Code of Criminal Procedure. The Court further observed that the plentitude of the section must be given its full play. The Constitution Bench has also observed that the High Court is not right in observing that the accused must make out a "special case" for the exercise of the power to grant anticipatory bail. This virtually, reduces the salutary power conferred by Section 438 Code of Criminal Procedure to a dead letter. The Court observed that "We do not see why the provisions of Section 438 Code of Criminal Procedure should be suspected as containing something volatile or incendiary, which needs to be handled with the greatest care and caution imaginable." 99. As aptly observed in Sibbia's case (supra) that a wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail. 100. The Constitution Bench in the same judgment also observed that a person seeking anticipatory bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints and conditions on his freedom, by the acceptance of conditions which the court may deem fit to impose, in consideration of the assurance that if arrested, he shall enlarged on bail. 101. The proper course of action 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 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 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. 102. The order granting anticipatory bail for a limited 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 (supra). 103. It is a settled legal position that 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. 104. The intention of the legislature is quite clear that the power of grant or refusal of bail is entirely discretionary. 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. 104. 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 (supra) has clearly stated that grant and refusal is discretionary and it should depend on the facts and circumstances of each case. The Constitution Bench in the said case has aptly observed that we must respect the wisdom of the Legislature entrusting this power to the superior courts namely, the High Court and the Court of Session. The Constitution Bench observed as under: We would, therefore, prefer to leave the High Court and the Court of Session to exercise their jurisdiction under Section 438 by a wise and careful use of their discretion which, by their long training and experience, they are ideally suited to do. The ends of justice will be better served by trusting these courts to act objectively and in consonance with principles governing the grant of bail which are recognized over the years, than by divesting them of their discretion which the legislature has conferred upon them, by laying down inflexible rules of general application. It is customary, almost chronic, to take a statute as one finds it on the grounds that, after all "the legislature in, its wisdom" has thought it fit to use a particular expression. A convention may usefully grow whereby the High Court and the Court of Session may be trusted to exercise their discretionary powers in their wisdom, especially when the discretion is entrusted to their care by the legislature in its wisdom. If they err, they are liable to be corrected. GRANT OF BAIL FOR LIMITED PERIOD IS CONTRARY TO THE LEGISLATIVE INTENTION AND LAW DECLARED BY THE CONSTITUTION BENCH: 105. The court which grants the bail has the right to cancel the bail 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. SCOPE AND AMBIT OF ANTICIPATORY BAIL: 118. SCOPE AND AMBIT OF ANTICIPATORY BAIL: 118. A good deal of misunderstanding with regard to the ambit and scope of Section 438 Code of Criminal Procedure could have been avoided in case the Constitution Bench decision of this Court in Sibbia's case (supra) was correctly understood, appreciated and applied. 119. This Court in the Sibbia's case (supra) laid down the following principles with regard to anticipatory bail: a) Section 438(1) is to be interpreted in light of Article 21 of the Constitution of India; b) Filing of FIR is not a condition precedent to exercise of power under Section 438; c) Order under Section 438 would not affect the right of police to conduct investigation; d) Conditions mentioned in Section 437 cannot be read into Section 438; e) 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." Powers are discretionary to be exercised in light of the circumstances of each case; f) Initial order can be passed without notice to the Public Prosecutor. Thereafter, notice must be issued forthwith and question ought to be re-examined after hearing. Such ad interim order must conform to requirements of the section and suitable conditions should be imposed on the applicant. 120. The Law Commission in July 2002 has severely criticized the police of our country for the arbitrary use of power of arrest which, the Commission said, is the result of the vast discretionary powers conferred upon them by this Code. The Commission expressed concern that there is no internal mechanism within the police department to prevent misuse of law in this manner and the stark reality that complaint lodged in this regard does not bring any result. The Commission intends to suggest amendments in the Criminal Procedure Code and has invited suggestions from various quarters. Reference is made in this Article to the 41st Report of the Law Commission wherein the Commission saw 'no justification' to require a person to submit to custody, remain in prison for some days and then apply for bail even when there are reasonable grounds for holding that the person accused of an offence is not likely to abscond or otherwise misuse his liberty. Discretionary power to order anticipatory bail is required to be exercised keeping in mind these sentiments and spirit of the judgments of this Court in Sibbia's case (supra) and Joginder Kumar v. State of U.P. and Ors (1994) 4 SCC 260 .). Relevant consideration for exercise of the power: 121. No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail. We are clearly of the view that 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 the legislative intention the grant or refusal of anticipatory bail should necessarily depend on facts and circumstances of each case. As aptly observed in the Constitution Bench decision in Sibbia's case (supra) that the High Court or the Court of Sessions to exercise their jurisdiction under Section 438 Code of Criminal Procedure by a wise and careful use of their discretion which by their long training and experience they are ideally suited to do. In any event, this is the legislative mandate which we are bound to respect and honour. 122. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail: 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; iii. The possibility of the applicant to flee from justice; 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. 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. vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people. 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 implicated with the help of Sections 34 and 149 of the Indian 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; 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. 123. The arrest should be the last option and it should be restricted to those exceptional cases where arresting the accused is imperative in the facts and circumstances of that case. 124. 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 circumstances on record. 125. These are some of the factors which should be taken into consideration while deciding the anticipatory bail applications. These factors are by no means exhaustive but they are only illustrative in nature because it is difficult to clearly visualize all situations and circumstances in which a person may pray for anticipatory bail. If a wise discretion is exercised by the concerned judge, after consideration of entire material on record then most of the grievances in favour of grant of or refusal of bail will be taken care of. The legislature in its wisdom has entrusted the power to exercise this jurisdiction only to the judges of the superior courts. If a wise discretion is exercised by the concerned judge, after consideration of entire material on record then most of the grievances in favour of grant of or refusal of bail will be taken care of. The legislature in its wisdom has entrusted the power to exercise this jurisdiction only to the judges of the superior courts. In consonance with the legislative intention we should accept the fact that the discretion would be properly exercised. In any event, the option of approaching the superior court against the court of Sessions or the High Court is always available. 126. Irrational and Indiscriminate arrest are gross violation of human rights. In Joginder Kumar's case (supra), a three Judge Bench of this Court has referred to t h e 3rd report of the National Police Commission, in which it is mentioned that the quality of arrests by the Police in India mentioned power of arrest as one of the chief sources of corruption in the police. The report suggested that, by and large, nearly 60% of the arrests were either unnecessary or unjustified and that such unjustified police action accounted for 43.2% of the expenditure of the jails. 127. 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. 128 In case, the State consider 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 are only illustrative and not exhaustive. 1) Direct the accused to join investigation and only when the accused does not cooperate 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. 5) The accused be directed to furnish undertaking 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. 6) Bank accounts be frozen for small duration during investigation. 129. 5) The accused be directed to furnish undertaking 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. 6) Bank accounts be frozen for small duration during investigation. 129. In case the arrest is imperative, according to the 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 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. 130. Exercise of jurisdiction under Section 438 of Code of Criminal Procedure 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. 131. 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 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. 132. 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 must ensure that grant or refusal of bail is considered basically on the facts and circumstances of each case. 133. In our considered view, the Constitution Bench in Sibbia's case (supra) has comprehensively dealt with almost all aspects of the concept of anticipatory bail under Section 438 Code of Criminal Procedure. 133. In our considered view, the Constitution Bench in Sibbia's case (supra) has comprehensively dealt with almost all aspects of the concept of anticipatory bail under Section 438 Code of Criminal Procedure. A number of judgments have been referred to by the learned Counsel for the parties consisting of Benches of smaller strength where the courts have observed that the anticipatory bail should be of limited duration only and ordinarily on expiry of that duration or standard duration, the court granting the anticipatory bail should leave it to the regular court to deal with the matter. This view is clearly contrary to the view taken by the Constitution Bench in Sibbia's case (supra). In the preceding paragraphs, it is clearly spelt out that no limitation has been envisaged by the Legislature under Section 438 Code of Criminal Procedure. The Constitution Bench has aptly observed that "we see no valid reason for rewriting Section 438 with a view, not to expanding the scope and ambit of the discretion conferred on the High Court or the Court of Session but, for the purpose of limiting it". 134. In view of the clear declaration of law laid down by the Constitution Bench in Sibbia's case(supra), it would not be proper to limit the life of anticipatory bail. When the court observed that the anticipatory bail is for limited duration and thereafter the accused should apply to the regular court for bail, that means the life of Section 438 Code of Criminal Procedure would come to an end after that limited duration. This limitation has not been envisaged by the legislature. The Constitution Bench in Sibbia's case (supra) clearly observed that it is not necessary to re-write Section 438 Code of Criminal Procedure therefore, in view of the clear declaration of the law by the Constitution Bench, the life of the order under Section 438 Code of Criminal Procedure granting bail cannot be curtailed. 135. The ratio of the judgment of the Constitution Bench in Sibbia's case (supra) perhaps was not brought to the notice of their Lordships who had decided the cases of Salauddin Abdulsamad Shaikh v. State of Maharashtra, K.L. Verma v. State and Anr., Adri Dharan Das v. State of West Bengal and Sunita Devi v. State of Bihar and Anr. (supra). 136. (supra). 136. In Naresh Kumar Yadav v. Ravindra Kumar - (2008) 1 SCC 632 , a two-Judge Bench of this Court observed "the power exercisable under Section 438 Code of Criminal Procedure is somewhat extraordinary in character and it should be exercised only in exceptional cases. This approach is contrary to the legislative intention and the Constitution Bench's decision in Sibbia's case (supra). 137. We deem it appropriate to reiterate and assert 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 discretion vested with the court under Section 438 Code of Criminal Procedure should also be exercised with caution and prudence. It is unnecessary to travel beyond it and subject to the wide power and discretion conferred by the legislature to a rigorous code of self-imposed limitations. 138. The judgments and orders mentioned in paras 135 and 136 are clearly contrary to the law declared by the Constitution Bench of this Court in Sibbia's case (supra). These judgments and orders are also contrary to the legislative intention. The Court would not be justified in rewriting Section 438 Code of Criminal Procedure. 139. Now we deem it imperative to examine the issue of per incuriam raised by the learned Counsel for the parties. In Young v. Bristol Aeroplane Company Limited (1994) All ER 293 the House of Lords observed that 'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratium. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratium of a statute or other binding authority. The same has been accepted, approved and adopted by this Court while interpreting Article 141of the Constitution which embodies the doctrine of precedents as a matter of law. ...In Halsbury's Laws of England (4th Edn.) Vol. 26: Judgment and Orders: Judicial Decisions as Authorities (pp. 297-98, para 578) per incuriam has been elucidated as under: A decision is given per incuriam when the court has acted in ignorance of a previous decision of its own or of a court of coordinate jurisdiction which covered the case before it, in which case it must decide which case to follow (Young v. Bristol Aeroplane Co. Ltd. 1944 KB 718 : (1944) 2 All ER 293 . Ltd. 1944 KB 718 : (1944) 2 All ER 293 . In Huddersfield Police Authority v. Watson 1947 KB 842: (1947) 2 All ER 193.; or when it has acted in ignorance of a House of Lords decision, in which case it must follow that decision; or when the decision is given in ignorance of the terms of a statute or rule having statutory force. 140. Lord Godard, C.J. in Huddersfield Police Authority v. Watson (1947) 2 All ER 193 observed that where a case or statute had not been brought to the court's attention and the court gave the decision in ignorance or forgetfulness of the existence of the case or statute, it would be a decision rendered in per incuriam. 141. This Court in Government of A.P. and Anr. v. B. Satyanarayana Rao (dead) by LRs. and Ors. (2000) 4 SCC 262 ), observed as under: The rule of per incuriam can be applied where a court omits to consider a binding precedent of the same court or the superior court rendered on the same issue or where a court omits to consider any statute while deciding that issue. 142. In a Constitution Bench judgment of this Court in Union of India v. Raghubir Singh - (1989) 2 SCC 754 , Chief Justice Pathak observed as under: The doctrine of binding precedent has the merit of promoting a certainty and consistency in judicial decisions, and enables an organic development of the law, besides providing assurance to the individual as to the consequence of transactions forming part of his daily affairs. And, therefore, the need for a clear and consistent enunciation of legal principle in the decisions of a court. 143. In Thota Sesharathamma and Anr. v. Thota Manikyamma (Dead) by LRs. and Ors. (1991) 4 SCC 312 a two Judge Bench of this Court held that the three Judge Bench decision in the case of Mst. Karmi v. Amru - (1972) 4 SCC 86 was per incuriam and observed as under: ... It is a short judgment without adverting to any provisions of Section 14(1) or 14(2) of the Act. The judgment neither makes any mention of any argument raised in this regard nor there is any mention of the earlier decision in Badri Pershad v. Smt. Kanso Devi. The decision in Mst. It is a short judgment without adverting to any provisions of Section 14(1) or 14(2) of the Act. The judgment neither makes any mention of any argument raised in this regard nor there is any mention of the earlier decision in Badri Pershad v. Smt. Kanso Devi. The decision in Mst. Karmi cannot be considered as an authority on the ambit and scope of Section 14(1) and (2) of the Act. 144. In R. Thiruvirkolam v. Presiding Officer and Anr. (1997) 1 SCC 9 a two Judge Bench of this Court observed that the question is whether it was bound to accept the decision rendered in Gujarat Steel Tubes Ltd. v. Mazdoor Sabha (1980) 2 SCC 593 , which was not in conformity with the decision of a Constitution Bench in P.H. Kalyani v. Air France (1964) 2 SCR 104 . J.S. Verma, J. speaking for the court observed as under: With great respect, we must say that the above-quoted observations in Gujarat Steel at P. 215 are not in line with the decision in Kalyani which was binding or with D.C. Roy to which the learned Judge, Krishna Iyer, J. was a party. It also does not match with the underlying juristic principle discussed in Wade. For the reasons, we are bound to follow the Constitution Bench decision in Kalyani, which is the binding authority on the point. 145. In Bharat Petroleum Corporation Ltd. v. Mumbai Shramik Sangra and Ors. (2001) 4 SCC 448 a Constitution Bench of this Court ruled that a decision of a Constitution Bench of this Court binds a Bench of two learned Judges of this Court and that judicial discipline obliges them to follow it, regardless of their doubts about its correctness. 146. A Constitution Bench of this Court in Central Board of Dawoodi Bohra Community v. State of Maharashtra (2005) 2 SCC 673 has observed that the law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or coequal strength. 147. A three-Judge Bench of this Court in Official Liquidator v. Dayanand and Ors. (2008) 10 SCC 1 again reiterated the clear position of law that by virtue of Article 141 of the Constitution, the judgment of the Constitution Bench in State of Karnataka and Ors. v. Umadevi (3) and Ors. 147. A three-Judge Bench of this Court in Official Liquidator v. Dayanand and Ors. (2008) 10 SCC 1 again reiterated the clear position of law that by virtue of Article 141 of the Constitution, the judgment of the Constitution Bench in State of Karnataka and Ors. v. Umadevi (3) and Ors. (2006) 4 SCC 1 is binding on all courts including this Court till the same is overruled by a larger Bench. The ratio of the Constitution Bench has to be followed by Benches of lesser strength. In para 90, the court observed as under: We are distressed to note that despite several pronouncements on the subject, there is substantial increase in the number of cases involving violation of the basics of judicial discipline. The learned Single Judges and Benches of the High Courts refuse to follow and accept the verdict and law laid down by coordinate and even larger Benches by citing minor difference in the facts as the ground for doing so. There fore, it has become necessary to reiterate that disrespect to the constitutional ethos and breach of discipline have grave impact on the credibility of judicial institution and encourages chance litigation. It must be remembered that predictability and certainty is an important hallmark of judicial jurisprudence developed in this country in the last six decades and increase in the frequency of conflicting judgments of the superior judiciary will do incalculable harm to the system inasmuch as the courts at the grass roots will not be able to decide as to which of the judgments lay down the correct law and which one should be followed. 148. In Subhash Chandra and Anr. v. Delhi Subordinate Services Selection Board and Ors. (2009) 15 SCC 458 , this Court again reiterated the settled legal position that Benches of lesser strength are bound by the judgments of the Constitution Bench and any Bench of smaller strength taking contrary view is per incuriam. The court in para 110 observed as under: "Should we consider S. Pushpa v. Sivachanmugavelu (2005) 3 SCC 1 to be an obiter following the said decision is the question which arises herein. We think we should. The decisions referred to herein before clearly suggest that we are bound by a Constitution Bench decision. The court in para 110 observed as under: "Should we consider S. Pushpa v. Sivachanmugavelu (2005) 3 SCC 1 to be an obiter following the said decision is the question which arises herein. We think we should. The decisions referred to herein before clearly suggest that we are bound by a Constitution Bench decision. We have referred to two Constitution Bench decisions, namely, Marri Chandra Shekhar Rao v. Seth G.S. Medical College (1990) 3 SCC 139 and E.V. Chinnaiah v. State of A.P. (2005) 1 SCC 394 . Marri Chandra Shekhar Rao (supra) had been followed by this Court in a large number of decisions including the three-Judge Bench decisions. S. Pushpa (supra) therefore, could not have ignored either Marri Chandra Shekhar Rao (supra) or other decisions following the same only on the basis of an administrative circular issued or otherwise and more so when the constitutional scheme as contained in Clause (1) of Articles 341 and 342 of the Constitution of India putting the State and Union Territory in the same bracket. Following Official Liquidator v. Dayanand and Ors. (2008) 10 SCC 1 therefore, we are of the opinion that the dicta in S. Pushpa (supra) is an obiter and does not lay down any binding ratio." 149. The analysis of English and Indian Law clearly 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, judgments mentioned in paragraphs 135 and 136 are by two or three judges of this Court. These judgments have clearly ignored a Constitution Bench judgment of this Court in Sibbia's case (supra) which has comprehensively dealt with all the facets of anticipatory bail enumerated under Section 438 of Code of Criminal Procedure Consequently, judgments mentioned in paragraphs 135 and 136 of this judgment are per-incuriam. 150. In case there is no judgment of a Constitution Bench or larger Bench of binding nature and if the court doubts the correctness of the judgments by two or three judges, then the proper course would be to request Hon'ble the Chief Justice to refer the matter to a larger Bench of appropriate strength. 151. 150. In case there is no judgment of a Constitution Bench or larger Bench of binding nature and if the court doubts the correctness of the judgments by two or three judges, then the proper course would be to request Hon'ble the Chief Justice to refer the matter to a larger Bench of appropriate strength. 151. In the instant case there is a direct judgment of the Constitution Bench of this Court in Sibbia's case (supra) dealing with exactly the same issue regarding ambit, scope and object of the concept of anticipatory bail enumerated under Section 438 Code of Criminal Procedure. The controversy is no longer res Integra. We are clearly bound to follow the said judgment of the Constitution Bench. The judicial discipline obliges us to follow the said judgment in letter and spirit. 152. In our considered view the impugned judgment and order of the High Court declining anticipatory bail to the Appellant cannot be sustained and is consequently set aside. 153. We direct the Appellant to join the investigation and fully cooperate with the investigating agency. In the event of arrest the Appellant 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.” 34) The Apex Court’s expression in Satish Jaggi Vs. State 2008 (1) ALT (Crl)-438), speaks that what is required to be considered in granting or refusing bail is in nature of the gravity of the offence from the material placed by the prosecution as to there is any prima facie accusation against the respective accused and no reliability or credibility of the prosecution witnesses to go and decide at this stage including its’ admissibility in evidence during trial and what all the other facts to be considered for grant or refusal of bail is besides nature and gravity of the offence from the material of the prosecution in existence of prima facie case if it is also to consider the impact on democratic factor of society if granted bail, if it creates any adverse impact, not to grant any concession of bail. From this Apex Court’s decision, it is clear that this Court at this stage but for to decide as to existence of prima facie accusation against the accused from the prosecution material cannot go into merits to scan or scrutiny the prosecution material as to how far it is admissible in evidence to judge the merits of the matter, that can be taken up during trial. 35) In Sanjaychandra Vs Central Beaureu of Investigation and batch cases ( AIR 2012 SC 830 ) it was held referring to Siddharam Satlingappa Mhetre (supra) on the facts - where appellants are facing trial in respect of the offences under Sections 420-B, 468, 471 and 109 of Indian Penal Code and Section 13(2) read with 13(i)(d) of Prevention of Corruption Act, 1988 that - Bail has been refused first by the Special Judge, CBI, New Delhi and subsequently, by the High Court. Both the courts have listed the factors, on which they think, are relevant for refusing the Bail applications filed by the applicants as seriousness of the charge; the nature of the evidence in support of the charge; the likely sentence to be imposed upon conviction; the possibility of interference with witnesses; the objection of the prosecuting authorities; possibility of absconding from justice. “7. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un-convicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, `necessity' is the operative test. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un-convicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, `necessity' is the operative test. IN this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of a refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any Court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an un-convicted person for the purpose of giving him a taste of imprisonment as a lesson. 36) In the instant case, as we have already noticed that the "pointing finger of accusation" against the appellants is `the seriousness of the charge'. The offences alleged are economic offences which has resulted in loss to the State exchequer. Though, they contend that there is possibility of the appellants tampering witnesses, they have not placed any material in support of the allegation. In our view, seriousness of the charge is, no doubt, one of the relevant considerations while considering bail applications but that is not the only test or the factor : The other factor that also requires to be taken note of is the punishment that could be imposed after trial and conviction, both under the Indian Penal Code and Prevention of Corruption Act. Otherwise, if the former is the only test, we would not be balancing the Constitutional Rights but rather "recalibration of the scales of justice." The provisions of Cr.P.C. confer discretionary jurisdiction on Criminal Courts to grant bail to accused pending trial or in appeal against convictions, since the jurisdiction is discretionary, it has to be exercised with great care and caution by balancing valuable right of liberty of an individual and the interest of the society in general. In our view, the reasoning adopted by the learned District Judge, which is affirmed by the High Court, in our opinion, a denial of the whole basis of our system of law and normal rule of bail system. It transcends respect for the requirement that a man shall be considered innocent until he is found guilty. If such power is recognized, then it may lead to chaotic situation and would jeopardize the personal liberty of an individual. This Court, in Kalyan Chandra Sarkar (supra), observed that "under the criminal laws of this country, a person accused of offences which are non-bailable, is liable to be detained in custody during the pendency of trial unless he is enlarged on bail in accordance with law. Such detention cannot be questioned as being violative of Article 21 of the Constitution, since the same is authorized by law. But even persons accused of non-bailable offences are entitled to bail if the Court concerned comes to the conclusion that the prosecution has failed to establish a prima facie case against him and/or if the Court is satisfied by reasons to be recorded that in spite of the existence of prima facie case, there is need to release such accused on bail, where fact situations require it to do so." 37) This Court, time and again, has stated that bail is the rule and committal to jail an exception. It is also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution. In the case of State of Rajasthan v. Balchand (1977) 4 SCC 308 ), this Court opined: "2. It is also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution. In the case of State of Rajasthan v. Balchand (1977) 4 SCC 308 ), this Court opined: "2. The basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like, by the petitioner who seeks enlargement on bail from the Court. We do not intend to be exhaustive but only illustrative. 3. It is true that the gravity of the offence involved is likely to induce the petitioner to avoid the course of justice and must weigh with us when considering the question of jail. So also the heinousness of the crime. Even so, the record of the petitioner in this case is that, while he has been on bail throughout in the trial court and he was released after the judgment of the High Court, there is nothing to suggest that he has abused the trust placed in him by the court; his social circumstances also are not so unfavourable in the sense of his being a desperate character or unsocial element who is likely to betray the confidence that the court may place in him to turn up to take justice at the hands of the court. He is stated to be a young man of 27 years with a family to maintain. The circumstances and the social milieu do not militate against the petitioner being granted bail at this stage. At the same time any possibility of the absconsion or evasion or other abuse can be taken care of by a direction that the petitioner will report himself before the police station at Baren once every fortnight." 38) In the case of Gudikanti Narasimhulu v. Public Prosecutor (1978) 1 SCC 240 ), V.R. Krishna Iyer, J., sitting as Chamber Judge, enunciated the principles of bail thus: "3. What, then, is "judicial discretion" in this bail context? In the elegant words of Benjamin Cardozo: "The Judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. What, then, is "judicial discretion" in this bail context? In the elegant words of Benjamin Cardozo: "The Judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to "the primordial necessity of order in the social life". Wide enough in all conscience is the field of discretion that remains." Even so it is useful to notice the tart terms of Lord Camden that "the discretion of a Judge is the law of tyrants: it is always unknown, it is different in different men; it is casual, and depends upon constitution, temper and passion. In the best, it is oftentimes caprice; in the worst, it is every vice, folly and passion to which human nature is liable...." Perhaps, this is an overly simplistic statement and we must remember the constitutional focus in Articles 21 and 19 before following diffuse observations and practices in the English system. Even in England there is a growing awareness that the working of the bail system requires a second look from the point of view of correct legal criteria and sound principles, as has been pointed out by Dr Bottomley. 6. Let us have a glance at the pros and cons and the true principle around which other relevant factors must revolve. When the case is finally disposed of and a person is sentenced to incarceration, things stand on a different footing. We are concerned with the penultimate stage and the principal rule to guide release on bail should be to secure the presence of the applicant who seeks to be liberated, to take judgment and serve sentence in the event of the Court punishing him with imprisonment. In this perspective, relevance of considerations is regulated by their nexus with the likely absence of the applicant for fear of a severe sentence, if such be plausible in the case. As Erle. In this perspective, relevance of considerations is regulated by their nexus with the likely absence of the applicant for fear of a severe sentence, if such be plausible in the case. As Erle. J. indicated, when the crime charged (of which a conviction has been sustained) is of the highest magnitude and the punishment of it assigned by law is of extreme severity, the Court may reasonably presume, some evidence warranting, that no amount of bail would secure the presence of the convict at the stage of judgment, should he be enlarged. Lord Campbell, C.J. concurred in this approach in that case and Coleridge J. set down the order of priorities as follows: "I do not think that an accused party is detained in custody because of his guilt, but because there are sufficient probable grounds for the charge against him as to make it proper that he should be tried, and because the detention is necessary to ensure his appearance at trial .... It is a very important element in considering whether the party, if admitted to bail, would appear to take his trial; and I think that in coming to a determination on that point three elements will generally be found the most important: the charge, the nature of the evidence by which it is supported, and the punishment to which the party would be liable if convicted. In the present case, the charge is that of wilful murder; the evidence contains an admission by the prisoners of the truth of the charge, and the punishment of the offence is, by law, death." 7. It is thus obvious that the nature of the charge is the vital factor and the nature of the evidence also is pertinent. The punishment to which the party may be liable, if convicted or conviction is confirmed, also bears upon the issue. 8. Another relevant factor is as to whether the course of justice would be thwarted by him who seeks the benignant jurisdiction of the Court to be freed for the time being. 39) Thus the legal principles and practice validate the Court considering the likelihood of the applicant interfering with witnesses for the prosecution or otherwise polluting the process of justice. Another relevant factor is as to whether the course of justice would be thwarted by him who seeks the benignant jurisdiction of the Court to be freed for the time being. 39) Thus the legal principles and practice validate the Court considering the likelihood of the applicant interfering with witnesses for the prosecution or otherwise polluting the process of justice. It is not only traditional but rational, in this context, to enquire into the antecedents of a man who is applying for bail to find whether he has a bad record -particularly a record which suggests that he is likely to commit serious offences while on bail. In regard to habituals, it is part of criminological history that a thoughtless bail order has enabled the bailee to exploit the opportunity to inflict further crimes on the members of society. Bail discretion, on the basis of evidence about the criminal record of a defendant is therefore not an exercise in irrelevance. 13. Viewed from this perspective, we gain a better insight into the rules of the game. When a person, charged with a grave offence, has been acquitted at a stage, has the intermediate acquittal pertinence to a bail plea when the appeal before this Court pends? Yes, it has. The panic which might prompt the accused to jump the gauntlet of justice is less, having enjoyed the confidence of the Court's verdict once. Concurrent holdings of guilt have the opposite effect. Again, the ground for denial of provisional release becomes weaker when the fact stares us in the face that a fair finding -- if that be so -- of innocence has been recorded by one Court. It may not be conclusive, for the judgment of acquittal may be ex facie wrong, the likelihood of desperate reprisal, if enlarged, may be a deterrent and his own safety may be more in prison than in the vengeful village where feuds have provoked the violent offence. It depends. Antecedents of the man and socio- geographical circumstances have a bearing only from this angle. Police exaggerations of prospective misconduct of the accused, if enlarged, must be soberly sized up lest danger of excesses and injustice creep subtly into the discretionary curial technique. It depends. Antecedents of the man and socio- geographical circumstances have a bearing only from this angle. Police exaggerations of prospective misconduct of the accused, if enlarged, must be soberly sized up lest danger of excesses and injustice creep subtly into the discretionary curial technique. Bad record and police prediction of criminal prospects to invalidate the bail plea are admissible in principle but shall not stampede the Court into a complacent refusal." 40) In Gurcharan Singh v. State (Delhi Admn.), (1978) 1 SCC 118 , this Court took the view: "22. In other non-bailable cases the Court will exercise its judicial discretion in favour of granting bail subject to subsection (3) of Section 437 CrPC if it deems necessary to act under it. Unless exceptional circumstances are brought to the notice of the Court which may defeat proper investigation and a fair trial, the Court will not decline to grant bail to a person who is not accused of an offence punishable with death or imprisonment for life. It is also clear that when an accused is brought before the Court of a Magistrate with the allegation against him of an offence punishable with death or imprisonment for life, he has ordinarily no option in the matter but to refuse bail subject, however, to the first proviso to Section 437(1) CrPC and in a case where the Magistrate entertains a reasonable belief on the materials that the accused has not been guilty of such an offence. This will, however, be an extraordinary occasion since there will be some materials at the stage of initial arrest, for the accusation or for strong suspicion of commission by the person of such an offence. 24. Section 439(1) CrPC of the new Code, on the other hand, confers special powers on the High Court or the Court of Session in respect of bail. Unlike under Section 437(1) there is no ban imposed under Section 439(1) Cr.P.C against granting of bail by the High Court or the Court of Session to persons accused of an offence punishable with death or imprisonment for life. It is, however, legitimate to suppose that the High Court or the Court of Session will be approached by an accused only after he has failed before the Magistrate and after the investigation has progressed throwing light on the evidence and circumstances implicating the accused. It is, however, legitimate to suppose that the High Court or the Court of Session will be approached by an accused only after he has failed before the Magistrate and after the investigation has progressed throwing light on the evidence and circumstances implicating the accused. Even so, the High Court or the Court of Session will have to exercise its judicial discretion in considering the question of granting of bail under Section 439(1) Cr.P.C of the new Code. The overriding considerations in granting bail to which we adverted to earlier and which are common both in the case of Section 437(1). and Section 439(1) Cr.P.C of the new Code are the nature and gravity of the circumstances in which the offence is committed; the position and the status of the accused with reference to the victim and the witnesses; the likelihood, of the accused fleeing from justice; of repeating the offence; of jeopardising his own life being faced with a grim prospect of possible conviction in the case; of tampering with witnesses; the history of the case as well as of its investigation and other relevant grounds which, in view of so many valuable factors, cannot be exhaustively set out." 41) In Babu Singh v. State of U.P. (1978) 1 SCC 579 ), the Apex Court opined: "8. The Code is cryptic on this topic and the Court prefers to be tacit, be the order custodial or not. And yet, the issue is one of liberty, justice, public safety and burden on the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process. As Chamber Judge in this summit Court I had to deal with this uncanalised case-flow, ad hoc response to the docket being the flickering candle light. So it is desirable that the subject is disposed of on basic principle, not improvised brevity draped as discretion. Personal liberty, deprived when bail is refused, is too precious a value of our constitutional system recognised under Article 21 that the curial power to negate it is a great trust exercisable, not casually but judicially, with lively concern for the cost to the individual and the community. To glamorize impressionistic orders as discretionary may, on occasions, make a litigative gamble decisive of a fundamental right. To glamorize impressionistic orders as discretionary may, on occasions, make a litigative gamble decisive of a fundamental right. After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of "procedure established by law". The last four words of Article 21 are the life of that human right. 16. Thus the legal principle and practice validate the Court considering the likelihood of the applicant interfering with witnesses for the prosecution or otherwise polluting the process of justice. It is not only traditional but rational, in this context, to enquire into the antecedents of a man who is applying for bail to find whether he has a bad record --particularly a record which suggests that he is likely to commit serious offences while on bail. In regard to habituals, it is part of criminological history that a thoughtless bail order has enabled the bailee to exploit the opportunity to inflict further crimes on the members of society. Bail discretion, on the basis of evidence about the criminal record of a defendant, is therefore not an exercise in irrelevance. 17. The significance and sweep of Article 21 make the deprivation of liberty a matter of grave concern and permissible only when the law authorising it is reasonable, even-handed and geared to the goals of community good and State necessity spelt out in Article 19. Indeed, the considerations I have set out as criteria are germane to the constitutional proposition I have deduced. Reasonableness postulates intelligent care and predicates that deprivation of freedom by refusal of bail is not for punitive purpose but for the bi-focal interests of justice--to the individual involved and society affected. 18. We must weigh the contrary factors to answer the test of reasonableness, subject to the need for securing the presence of the bail applicant. It makes sense to assume that a man on bail has a better chance to prepare or present his case than one remanded in custody. And if public justice is to be promoted, mechanical detention should be demoted. IN the United States, which has a constitutional perspective close to ours, the function of bail is limited, "community roots" of the applicant are stressed and, after the Vera Foundation's Manhattan Bail Project, monetary suretyship is losing ground. And if public justice is to be promoted, mechanical detention should be demoted. IN the United States, which has a constitutional perspective close to ours, the function of bail is limited, "community roots" of the applicant are stressed and, after the Vera Foundation's Manhattan Bail Project, monetary suretyship is losing ground. The considerable public expense in keeping in custody where no danger of disappearance or disturbance can arise, is not a negligible consideration. Equally important is the deplorable condition, verging on the inhuman, of our sub-jails, that the unrewarding cruelty and expensive custody of avoidable incarceration makes refusal of bail unreasonable and a policy favouring release justly sensible. 20. Viewed from this perspective, we gain a better insight into the rules of the game. When a person, charged with a grave offence, has been acquitted at a stage, has the intermediate acquittal pertinence to a bail plea when the appeal before this Court pends? Yes, it has. The panic which might prompt the accused to jump the gauntlet of justice is less, having enjoyed the confidence of the Court's verdict once. Concurrent holdings of guilt have the opposite effect. Again, the ground for denial of provisional release becomes weaker when the fact stares us in the face that a fair finding -- if that be so --of innocence has been recorded by one Court. It may be conclusive, for the judgment of acquittal may be ex facie wrong, the likelihood of desperate reprisal, it enlarged, may be a deterrent and his own safety may be more in prison than in the vengeful village where feuds have provoked the violent offence. It depends. Antecedents of the man and socio-geographical circumstances have a bearing only from this angle. Police exaggerations of prospective misconduct of the accused, if enlarged, must be soberly sized up lest danger of excesses and injustice creep subtly into the discretionary curial technique. Bad record and police prediction of criminal prospects to invalidate the bail plea are admissible in principle but shall not stampede the Court into a complacent refusal." 42) IN Moti Ram v. State of M.P. (1978) 4 SCC 47 ), this Court, while discussing pre-trial detention, held: "14. The consequences of pre-trial detention are grave. Defendants presumed innocent arc subjected to the psychological and physical deprivations of jail life, usually under more onerous conditions than are imposed on convicted defendants. The consequences of pre-trial detention are grave. Defendants presumed innocent arc subjected to the psychological and physical deprivations of jail life, usually under more onerous conditions than are imposed on convicted defendants. The jailed defendant loses his job if he has one and is prevented from contributing to the preparation of his defence. Equally important, the burden of his detention frequently falls heavily on the innocent members of his family." 43) The concept and philosophy of bail was discussed by this Court in Vaman Narain Ghiya v. State of Rajasthan (2009) 2 SCC 281 ), thus: "6. "Bail" remains an undefined term in CrPC. Nowhere else has the term been statutorily defined. Conceptually, it continues to be understood as a right for assertion of freedom against the State imposing restraints. Since the UN Declaration of Human Rights of 1948, to which India is a signatory, the concept of bail has found a place within the scope of human rights. The dictionary meaning of the expression "bail" denotes a security for appearance of a prisoner for his release. Etymologically, the word is derived from an old French verb "bailer" which means to "give" or "to deliver", although another view is that its derivation is from the Latin term "baiulare", meaning "to bear a burden". Bail is a conditional liberty. Stroud's Judicial Dictionary (4th Edn., 1971) spells out certain other details. It states: "... when a man is taken or arrested for felony, suspicion of felony, indicted of felony, or any such case, so that he is restrained of his liberty. And, being by law bailable, offereth surety to those which have authority to bail him, which sureties are bound for him to the King's use in a certain sums of money, or body for body, that he shall appear before the justices of goal delivery at the next sessions, etc. Then upon the bonds of these sureties, as is aforesaid, he is bailed--that is to say, set at liberty until the day appointed for his appearance." Bail may thus be regarded as a mechanism whereby the State devolutes upon the community the function of securing the presence of the prisoners, and at the same time involves participation of the community in administration of justice. 7. Personal liberty is fundamental and can be circumscribed only by some process sanctioned by law. 7. Personal liberty is fundamental and can be circumscribed only by some process sanctioned by law. Liberty of a citizen is undoubtedly important but this is to balance with the security of the community. A balance is required to be maintained between the personal liberty of the accused and the investigational right of the police. It must result in minimum interference with the personal liberty of the accused and the right of the police to investigate the case. It has to dovetail two conflicting demands, namely, on the one hand the requirements of the society for being shielded from the hazards of being exposed to the misadventures of a person alleged to have committed a crime; and on the other, the fundamental canon of criminal jurisprudence viz. the presumption of innocence of an accused till he is found guilty. Liberty exists in proportion to wholesome restraint, the more restraint on others to keep off from us, the more liberty we have. (See A.K. Gopalan v. State of Madras) 8. The law of bail, like any other branch of law, has its own philosophy, and occupies an important place in the administration of justice and the concept of bail emerges from the conflict between the police power to restrict liberty of a man who is alleged to have committed a crime, and presumption of innocence in favour of the alleged criminal. An accused is not detained in custody with the object of punishing him on the assumption of his guilt." 44) More recently, in the case of Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694 , this Court observed that "(j)ust as liberty is precious to an individual, so is the society's interest in maintenance of peace, law and order. Both are equally important." This Court further observed : "116. 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." This Court has taken the view that when there is a delay in the trial, bail should be granted to the accused [See Babba v. State of Maharashtra, (2005) 11 SCC 569 , Vivek Kumar v. State of U.P., (2000) 9 SCC 443 , Mahesh Kumar Bhawsinghka v. State of Delhi, (2000) 9 SCC 383 ]. The principles, which the Court must consider while granting or declining bail, have been culled out by this Court in the case of Prahlad Singh Bhati v. NCT, Delhi, (2001) 4 SCC 280 , thus: "The jurisdiction to grant bail has to be exercised on the basis of well-settled principles having regard to the circumstances of each case and not in an arbitrary manner. While granting the bail, the court has to keep in mind the nature of accusations, the nature of the evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour, means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the bail the legislature has used the words "reasonable grounds for believing" instead of "the evidence" which means the court dealing with the grant of bail can only satisfy it (sic itself) as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt." In State of U.P. v. Amarmani Tripathi, (2005) 8 SCC 21 , this Court held as under: "18. It is well settled that the matters to be considered in an application for bail are (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger, of course, of justice being thwarted by grant of bail [see Prahlad Singh Bhati v. NCT, Delhi and Gurcharan Singh v. State (Delhi Admn.)]. While a vague allegation that the accused may tamper with the evidence or witnesses may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused. We may also refer to the following principles relating to grant or refusal of bail stated in Kalyan Chandra Sarkar v. Rajesh Ranjan: (SCC pp. 535-36, para 11). The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are: (a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence. (b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant. (c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v. Sudarshan Singh & Puran v. Rambilas.)" 22. While a detailed examination of the evidence is to be avoided while considering the question of bail, to ensure that there is no prejudging and no prejudice, a brief examination to be satisfied about the existence or otherwise of a prima facie case is necessary." Coming back to the facts of the present case, both the Courts have refused the request for grant of bail on two grounds:- The primary ground is that offence alleged against the accused persons is very serious involving deep rooted planning in which, huge financial loss is caused to the State exchequer ; the secondary ground is that the possibility of the accused persons tempering with the witnesses. In the present case, the charge is that of cheating and dishonestly inducing delivery of property, forgery for the purpose of cheating using as genuine a forged document. The punishment of the offence is punishment for a term which may extend to seven years. It is, no doubt, true that the nature of the charge may be relevant, but at the same time, the punishment to which the party may be liable, if convicted, also bears upon the issue. Therefore, in determining whether to grant bail, both the seriousness of the charge and the severity of the punishment should be taken into consideration. The grant or refusal to grant bail lies within the discretion of the Court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused. The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the Court, whether before or after conviction, to assure that he will submit to the jurisdiction of the Court and be in attendance thereon whenever his presence is required. This Court in Gurcharan Singh and Ors. Vs. State AIR 1978 SC 179 observed that two paramount considerations, while considering petition for grant of bail in non-bailable offence, apart from the seriousness of the offence, are the likelihood of the accused fleeing from justice and his tampering with the prosecution witnesses. Both of them relate to ensure of the fair trial of the case. Though, this aspect is dealt by the High Court in its impugned order, in our view, the same is not convincing. When the under-trial-prisoners are detained in jail custody to an indefinite period, Article 21 of the Constitution is violated. Every person, detained or arrested, is entitled to speedy trial, the question is : whether the same is possible in the present case. There are seventeen accused persons. Statement of the witnesses runs to several hundred pages and the documents on which reliance is placed by the prosecution, is voluminous. Every person, detained or arrested, is entitled to speedy trial, the question is : whether the same is possible in the present case. There are seventeen accused persons. Statement of the witnesses runs to several hundred pages and the documents on which reliance is placed by the prosecution, is voluminous. The trial may take considerable time and it looks to us that the appellants, who are in jail, have to remain in jail longer than the period of detention, had they been convicted. It is not in the interest of justice that accused should be in jail for an indefinite period. No doubt, the offence alleged against the appellants is a serious one in terms of alleged huge loss to the State exchequer, that, by itself, should not deter us from enlarging the appellants on bail when there is no serious contention of the respondent that the accused, if released on bail, would interfere with the trial or tamper with evidence. We do not see any good reason to detain the accused in custody, that too, after the completion of the investigation and filing of the charge-sheet. This Court, in the case of State of Kerala Vs. Raneef (2011) 1 SCC 784 , has stated : "15. In deciding bail applications an important factor which should certainly be taken into consideration by the court is the delay in concluding the trial. Often this takes several years, and if the accused is denied bail but is ultimately acquitted, who will restore so many years of his life spent in custody? Is Article 21 of the Constitution, which is the most basic of all the fundamental rights in our Constitution, not violated in such a case? Of course this is not the only factor, but it is certainly one of the important factors in deciding whether to grant bail. In the present case the respondent has already spent 66 days in custody (as stated in Para 2 of his counter-affidavit), and we see no reason why he should be denied bail. A doctor incarcerated for a long period may end up like Dr. In the present case the respondent has already spent 66 days in custody (as stated in Para 2 of his counter-affidavit), and we see no reason why he should be denied bail. A doctor incarcerated for a long period may end up like Dr. Manette in Charles Dicken's novel A Tale of Two Cities, who forgot his profession and even his name in the Bastille." In `Bihar Fodder Scam', this Court, taking into consideration the seriousness of the charges alleged and the maximum sentence of imprisonment that could be imposed including the fact that the appellants were in jail for a period more than six months as on the date of passing of the order, was of the view that the further detention of the appellants as pre-trial prisoners would not serve any purpose. 13. We are conscious of the fact that the accused are charged with economic offences of huge magnitude. We are also conscious of the fact that the offences alleged, if proved, may jeopardize the economy of the country. At the same time, we cannot lose sight of the fact that the investigating agency has already completed investigation and the charge sheet is already filed before the Special Judge, CBI, New Delhi. Therefore, their presence in the custody may not be necessary for further investigation. WE are of the view that the appellants are entitled to the grant of bail pending trial on stringent conditions in order to ally the apprehension expressed by CBI. 14. In the view we have taken, it may not be necessary to refer and discuss other issues canvassed by the learned counsel for the parties and the case laws relied on in support of their respective contentions. We clarify that we have not expressed any opinion regarding the other legal issues canvassed by learned counsel for the parties. In the result, we order that the appellants be released on bail on their executing a bond with two solvent sureties, each in a sum of Rs. 5 lakhs to the satisfaction of the Special Judge, CBI, New Delhi on the following conditions:- a. The appellants shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts or the case so as to dissuade him to disclose such facts to the Court or to any other authority. 5 lakhs to the satisfaction of the Special Judge, CBI, New Delhi on the following conditions:- a. The appellants shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts or the case so as to dissuade him to disclose such facts to the Court or to any other authority. b. They shall remain present before the Court on the dates fixed for hearing of the case. If they want to remain absent, then they shall take prior permission of the court and in case of unavoidable circumstances for remaining absent, they shall immediately give intimation to the appropriate court and also to the Superintendent, CBI and request that they may be permitted to be present through the counsel. c. They will not dispute their identity as the accused in the case. d. They shall surrender their passport, if any (if not already surrendered), and in case, they are not a holder of the same, they shall swear to an affidavit. If they have already surrendered before the Ld. Special Judge, CBI, that fact should also be supported by an affidavit. e. We reserve liberty to the CBI to make an appropriate application for modification/recalling the order passed by us, if for any reason, the appellants violate any of the conditions imposed by this Court. The appeals are disposed of accordingly. 45) From the above expressions of the Apex Court in Sibbia, Savitri Agarwal explaining the expression in Adri Dharan Das, that was in the notice of the Apex Court in Pradeepsharma, Mytre, Sanjay Chandra, the criterion for grant or refusal of bail is - There shall be changed circumstances to the earlier bail order, to entertain and decide the subsequent bail application and the expression in Captain B.Subba Rao is for no gap of even two days to the earlier application in filing subsequent application and for repeated filing applications with no change find fault for not property appreciated in granting bail in that factual scenario viz., “Between the two orders there was a gap of only two days and it is nobody's case that during these two days drastic changes had taken place necessitating the release of the respondent on bail. Judicial discipline propriety and comity demanded that the impugned order should not have been passed reversing all earlier orders including the one rendered by Puranik, J. only a couple of days before, in the absence of any substantial change in the fact-situation”. 46) Apart from the it, the expression of Kalyanchandrasarkar, where the accused was a hard core criminal was observed cannot be equated with other person of similar offence granted bail, there pointed out the bail granted to a saint in saying no precedent on facts even on bail applications but for to decide each case on its own facts, with judicial discretion. It was also observed therein as a principle of law that - if the court is satisfied for reasons to be recorded that in spite of the existence of prima facie case there is a need to release such persons on bail where fact situations require it to do so and in that process a person whose application for enlargement on bail is once rejected is not precluded from filing a subsequent application - for grant of bail if there is a change in the fact situation. In such cases if the circumstances then prevailing requires that such persons to be released on bail, in spite of his earlier applications being rejected, the courts can do so. 47) In that case, from the past conduct of the accused being hard core criminal and as found by courts below very clearly shows that if he is released on bail he would certainly threaten the witnesses and tamper with the evidence which according to the learned counsel is clear from 'the fact that a number of witnesses have already turned hostile, many of them during the period when the accused was let on bail. 48) Even coming to the facts of the present case for grant or refusal of the five bail applications supra, so far as anticipatory bail concerned as laid down by the referred expressions, the requirements to consider are- (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 (iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail. 49) Here there is nothing shown by this Petitioner-1st Accused of the clause iv above, then it is only to consider even from prima facie accusation, the other (i-iii-three) clauses. In this regard, leave about the manner of perpetration as contended for prosecution of his professional wisdom was misused in committing the offences by this Petitioner-1st Accused within the clause I or not in issue to decide ultimately, coming to clauses ii & iii concerned, there is nothing on this Petitioner-1st Accused of earlier involved in any crime or as Chartered Accountant earlier resorted to any misconduct in his professional duties or to regard as unsocial. Further, all the offences punishable are up to or below ten years maximum punishment, where even a regular bail can be granted by any judicial Magistrate of first class under Section 437 IPC, as also laid down by the Apex Court in Prahaladh Singh Butti –Vs.- NCT of Delhi ( AIR 2001 SCW 1263 ) that if the offence is exclusively triable by the Court of Sessions which is punishable with death or imprisonment for life, the Magistrate cannot (though otherwise) grant bail from the legislative mandate and he has no other go except to remand the accused to custody from time to time subject to Section 167 Cr.P.C, unless the accused was enlarged on bail by Court of Sessions or High Court. 50) Further, there is practically no investigation shown remained for the crimes pending first one of more than one and half year and the last one of more than eight months, leave about the investigation to be completed generally within sixty days in such cases even from the reading of Section 167 Cr.P.C, much less shown for the investigation remained if any to be completed, want of arrest and interrogation of the Petitioner-1st Accused, apart from the fact that even any interrogation is required, a notice to be served and if failed to attend and cooperate even to the notice, to arrest as per the mandatory requirements of amended provision in Section 41A Cr.P.C, with reference to Section 41 and as per the spirit of the three bench expression of the Apex Court in Joginder Kumar (supra); needless to say for arrest or not to arrest, reasons required to be mentioned in writing on record(case dairy or the like) and there is neither service of notice even from the say by the prosecution of non availability of the 1st Accused despite oral intimation to his father, who stated his son unavailable and not even that the father was served with notice, much less any affixture at the door of the permanent residence of all the four accused. It shows but for filing of charge sheet in each of the cases, from the case of the prosecution shows rested on documentary evidence and any interrogation or police custody required, it can be given within fifteen days from submission to custody and enlarged on bail subject to filing of such application by prosecution before the learned Magistrate concerned to impose as one of the conditions in the bail, as laid down by the Constitutional Bench expression of the Apex Court in Gurbux Singh Sibba(supra) as one of its nine guidelines viz., 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 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. 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. 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. Regarding the unavailability attributed against the 1st Accused- Petitioner, besides what is discussed supra, his contention is that there is every apprehension of ill-treatment in the hands of the police if made available of the 1st accused/petitioner to the police who are at the influence of the defacto-complainant by name Ch.N.V.S.Reddy, though there is nothing to believe the same, the apprehension cannot be regarded as absolutely false for his scaring in availability there from, however, that cannot be regarded as ground to contend every possibility of abscondence of the accused or fleeing away from justice or interference with witnesses, that too those also as laid down by the Apex Court by themselves not a ground to refuse, but to take care of by imposing necessary conditions as none of the offences are punishable with death or imprisonment for life or for a period above ten years and there is nothing to show the accused is involved in any crimes earlier, much less to say with any bad antecedents, being a Chartered Accountant and the other accused implicated are no other than his wife and aged parents having their permanent abode and shows Directors of several entities as one of the allegation by defacto complainant is obtaining of loan in the name of the entity to which defacto Complainant is managing Director by claiming for sin of joining as Director as if managing director and diverting the amounts to other entities, which is the gravamen of accusation, besides other having availed loan from one bank by creating registered mortgage without liquidation, again with no due certificate availed from other bank by another Mortgage and admittedly when there are registered mortgages, even for defacto Complainant to in turn complaining is later alienated those mortgaged properties by all accused under registered sale deeds to him and his family members or the like, though for one to claim as bonafide purchaser or transferee the enquiries to be made and had it been it could be revealed by verification of encumbrances and contention of accused is that said defacto complainant Ch.V.N.Reddy with his wielding influence, that it was he that obtained the sale deeds under threat and now claims as if cheated having knowledge of the registered Mortgage of the properties by cause not reflecting in the covenants with scheme. Coming to the earlier dismissal of the anticipatory bail application in Crl.M.P.No.11840 of 2013 in Cr.No.3 of 2013 in March,2013 is now not a consideration much less coming in the way for the granting of the bail from the subsequent changed circumstances from the investigation at that time was in preliminary stage and now not of what is discussed in detail supra, more particularly from the fact that it is neither a pre crime registered or post crime registered preliminary stage and from what the apex court expressions laid down supra, prima facie case alone is not criteria to negate bail, from said observation for dismissal of earlier bail application more than 15 months ago. It is also the fact born by record undisputedly of the subsequent 5 anticipatory bail applications filed by him with others if any, were withdrawn and dismissed there from was on the ground of order against arrest granted in the pending quash proceedings and thereby that also no way comes in the way for considering the present applications to grant bail, that too, where in no observation on merits much less to say to presume negation of relief for bail on merits. It is also from the fact that in one of the earlier anticipatory bail applications in Crl.M.P.No.3600 of 2013 in Cr.No.16 of 2014 by all the four accused persons of which A.3 and A.4 were granted anticipatory bail and dismissed for A.1 and A.2 who are the petitioner herein and his wife in passing order dated 29.04.2013 without even discussing the merits in so far as of them separately, when with observations of the petitioner may surrender before the learned trial Magistrate concerned and move for regular bail and in such an event the learned Magistrate shall dispose of the application on the same day, is though contended as also no way a bar for non-availment of the concession therein to the maintainability of the present applications, that observation in all judicial discipline this court cannot ignore, but for to say, to sub-serve the ends of justice instead of dismissing the anticipatory bail applications on that sole ground and in the ends of justice and also from the observation of the Apex Court in the dismissal of the SLP at the admission stage supra of left open to move for interim protection, the bail applications can be disposed of with directions and necessary conditions required to be incorporated. 51) Hence, taking consideration of the personal liberty and having regard to the circumstances stated in the petition as well as submissions made by the learned counsel, instead of dismissing from not entitled to the pre-arrest bail, but for regular bail, these applications are disposed of, by giving liberty to the petitioner-accused No.1 to surrender before the Learned Magistrate concerned of the respective crimes to take into custody under Section 44 Cr.P.C by virtue of this order and move before the learned respective Magistrates within 15 days from the date of receipt of this order for regular bail and with notice to learned Assistant Public Prosecutor concerned and in such an event, the learned Judge/Magistrate shall consider by granting bail in favour of the petitioner/Accused No.1 preferably on same day if not by next day with necessary conditions, which may include the following: [1] Petitioner shall execute a self-bond for Rs.1,00,000/-[Rupees one lakh only] with two sureties each for the like sum each of immovable property security to the satisfaction of the Learned Magistrate concerned. The bond to be obtained is not only to appear before the court pending investigation and after filing of final report in the form of charge sheet or the like for enquiry/trial before said Court, but also thereafter before any other Court and even after trial before such Court to appear before revisional or appellate Court or other superior Court -vide decision-Pre-Legal Aid Committee, Jamshedpur vs. State of Delhi 1982[2]APLJ 43(SC); so that existence and enforceable, without even insisting her further presence, such recourse quickens the proceedings at other stages before that Court or other Court without loss of time and it also to some extent complies with the requirement of Section 437A Cr.P.C. [2] In the event of the police making out a case for police custody for the purpose of interrogation the petitioner shall be liable to be taken in police custody for facilitating the further investigation remained if any, with the permission of the Magistrate concerned who can grant such police custody, subject to necessary precautions and instructions. [3] Petitioner shall report before the Investigating Officer, Ravulapalem Police Station, East Godavari District relating to Crime No.3/2013 on every alternative Wednesday between 6.00 to 7.00 P.M and shall report before the other respective investigating officer relating to Crime No.10/2013 and Crime No.16/2013 of CCS, Hyderabad, Crime No.263/2013 of Banjara Hills Police Station, Hyderabad and Crime No.191/2013 of Humayunnagar Police Station, Hyderabad on every Sunday till filing of charge sheet and thereafter once in a month on 1st Sunday before the Investigation Officer, CCS, Hyderabad and on 1st Wednesday before the Investigation Officer, Ravulapalem Police Station, East Godavari District between 6.00 p.m to 7.00 p.m until further orders of learned respective Magistrate concerned for assurance of his availability and non-interference in any manner with the witnesses. [4] Petitioner shall attend before the Court of law regularly in enquiry and trial without fail, if not his bail shall be cancelled forthwith, without any further order so that, the learned trial Magistrate can also issue NBW by cancelling the bail during pendency of proceedings before the Court. [4] Petitioner shall attend before the Court of law regularly in enquiry and trial without fail, if not his bail shall be cancelled forthwith, without any further order so that, the learned trial Magistrate can also issue NBW by cancelling the bail during pendency of proceedings before the Court. [5] Petitioner shall furnish his full address either present or changed addresses if any from time to time and submit his bank account particulars and passport if any, after enlargement on bail on the next hearing date before the trial Magistrate concerned for securing presence and obtaining of bond with sureties in future under Section 437A CrPC. etc., failing which it is open to the learned Magistrate concerned to cancel the bail. [6] The bail now granted is since a anticipatory one, till end of trial (without prejudice to the right to cancel meanwhile in case of need and/or for non-compliance of conditions supra) any absence of petitioner as accused for hearing/enquiry or trial, issuance of non-bailable warrant-NBW (unless cancelled before execution) and even its execution and production of accused as per the NBW; that does not tantamount to cancellation of bail including from the wording of Section 439(2) Cr.P.C. and as such in such event no fresh bail application can be entertained. As it tantamounts to only cancellation of bail bonds earlier executed, (leave about the power of the court to issue surety notices by forfeiting bonds and for imposing penalty on the bonds forfeited); the proper course is to direct the accused to work out the remedy to pay penalty on the previous forfeited bonds as per Section 441 to 446 Cr.P.C and to submit fresh solvency with self bond for enlarging him by release from custody on payment of penalty of the earlier bonds forfeited without need of enforcing against earlier sureties again. 52) Accordingly, all these criminal petitions are disposed of.