Main Search Premium Members Advanced Search Disclaimer
Cites 9 docs - [View All]
The Indian Penal Code
The Code Of Criminal Procedure, 1973
Gurbaksh Singh Sibbia Etc vs State Of Punjab on 9 April, 1980
Gurcharan Singh & Ors vs State (Delhi Administration) on 6 December, 1977
Section 307 in The Code Of Criminal Procedure, 1973
Citedby 63 docs - [View All]
Pokar Ram vs State Of Raj on 8 November, 2011
Syed Zafrul Hassan And Anr. vs State on 7 January, 1986
5 Whether It Is To Be Circulated To ... vs State Of Gujarat on 12 February, 2015
The vs State Of Rajasthan And Another) ... on 29 October, 2013
Kashi Ram vs State Of Rajasthan And Anr. on 3 December, 1987

User Queries

Application to MA in Law, Politics and Society in Ambedkar University, Delhi is open till 24 June. Apply here

Try out our Premium Member services: Virtual Legal Assistant, Query Alert Service and an ad-free experience. Free for one month and pay only if you like it.

Supreme Court of India
Pokar Ram vs State Of Rajasthan And Anr on 17 April, 1985
Equivalent citations: 1985 AIR 969, 1985 SCR (3) 780
Author: D Desai
Bench: Desai, D.A.
           PETITIONER:
POKAR RAM

	Vs.

RESPONDENT:
STATE OF RAJASTHAN AND ANR

DATE OF JUDGMENT17/04/1985

BENCH:
DESAI, D.A.
BENCH:
DESAI, D.A.
TULZAPURKAR, V.D.
SEN, A.P. (J)

CITATION:
 1985 AIR  969		  1985 SCR  (3) 780
 1985 SCC  (2) 597	  1985 SCALE  (1)918


ACT:
	    Criminal Procedure Code 1973 s 438- Anticipatory
bail-grant of-When arises.
	   The son of the appellant ,  was injured by a fire
arm on August 23 ,  1983 at 4 p. m. The F.I.R. was lodged on
the next day at 11.30 a.m. In clear and unambiguous terms it
alleged that  the respondent  was at the relevant time armed
with a	gun and	 fired at that appellant's son. who suffered
injuries by  gun shot.	Since he was alive at that time ,  a
case under  ss. 307  , 447  read with s. 149 and under . ss.
148 ,	379  and 827  of the  I.P.C. was registered. When he
succumbed to  injuries ,   an offence under s.302 l.P.C. was
also added.



HEADNOTE:
	 The respondent was not arrested till September 29 ,
1983 ,	 when  he appeared  before the Sessions Judge ,	 and
moved an  application under  s.438 Cr. P.C. for anticipatory
bail ,	 and  by order	dated September	 30 ,	1983  it was
granted with  a direction  that if  the respondent was taken
into custody  by the  police he	 must be released on bail on
his furnishing	security in  the  amount  of  Rs.  5,000  on
condition that	he will assist in the investigation and will
not go out of India.
	  The appellant moved the High Court questioning the
correctness of	the order granting anticipatory bail and for
cancellation of	 the same.A  Single judge  held that  he had
locus standi  to move the High Court for cancellation of the
anticipatory bail  but on  merits held	that no grounds were
made out  for its  cancellation ,   and accordingly rejected
the application.
	 The Appellant appealed to this Court.
	 Allowing the Appeal ,
^
	 HELD:	1.  Relevant  considerations  governing	 the
Court's decision  in granting  anticipatory bail under s.438
are materially	different from those when an application for
bail by	 a person  who is  arrested  in	 the  course  of  an
investigation as  also by  a person who is convicted and his
appeal is pending before the
781
higher court  and bail	is sought  t during the pendently of
the  appeal.   In  the	 instant  case,	  the	High   Court
unfortunately  fell   into  error   in	mixing	up  all	 the
consideration ,	 as if	all the three become relevant in the
present situation. [785B-C]
     2. The  distinction between  an ordinary  order of bail
and an order of anticipatory bail is that whereas the former
is granted  after arrest  and, therefore  means release from
the custody of the place, the latter is granted in anticipa-
tion of	 arrest and`is,	 therefore, effective  at  the	very
moment of  arrest. Unlike a post-arrest order of bail, it is
a pre-arrest  legal process which directs that if the person
in whose  favour it  is issued is thereafter arrested on the
accusation in  respect of  which the direction is issued, he
shall  be  released  on	 bail.A	 direction  under  s.438  is
intended to  confer conditional	 immunity from	the touch as
envisaged by s.46(1) or confinement. [78D-E]
     3. In  regared to	anticipatory bail,  if the  proposed
accusation appears  to stem  not from  motives of furthering
the ends  of justice  but from	some  ulterior	motive,	 the
object being to injure and humiliate the applicant by having
him arrested,  a direction  for the release of the applicant
on bail	 in the event of his arrest would generally be made.
It  cannot   be	 laid	down  as  an  inexorable  rule	that
anticipatory bail  cannot be  granted  unless  the  proposed
accusation appears  (1) to  be actuated	 by malafides;	and,
equally, that  anticipatory bail must be granted if there is
no fear	 that  the  applicant  will  abscond.  Some  of	 the
relevant considerations	 which govern  the discretion of the
Court while  deciding an  application for  anticipatory bail
are the	 nature and seriousness of the proposed charges, the
context of  the events	likely to  lead to the making of the
charges,  a   reasonable  possibility  of  the	applicant  s
presence not  being  secured  at  the  trial,  a  reasonable
apprehension that  witnesses will  be tampered with and "the
larger interests  of the  public or  the  State	 "-  In	 the
evaluation of  the consideration  whether the  applicant  is
likely to  abscond. there  can be  no presumption  that	 the
wealthy and  the mighty	 will submit themselves to trial and
that the  humble and  poor will	 run away from the course of
justice, any  more than	 there can be a presumption that the
former are  not likely	to commit a crime and the latter are
more likely to commit it. [785G-H; 786A-D]
     4. The  incident in  which Bhanwaria  was injured	with
fire arm  occurred on August 23,1983 in respect of which the
First Information  Report was  lodged on August 24, 1983 and
it was	in clear  and unambiguous  terms  alleged  that	 the
respondent was	at the	relevant time  armed with  a gun and
fired  towards	 Bhanwaria  who	 suffered  injuries  by	 the
gunshot. Amongst  others the  offence registered  was  under
s.307 I.P.C.  that is  attempt to  commit murder.  The first
information report thus discloses use of fire-arm with which
the respondent	attempted to  commit  murder  of  Bhanwaria.
Surprisingly, the Investigating Officer had not arrested him
till September	29, 1983  when he  moved an  application for
anticipatory  bail  under  s.438  Cr.P.C.  presumably  after
coming to  know that  injured has  succumbed to his injuries
and the	 offence would	be one	of murder  punishable  under
s.302 I.P.C.  This  conduct  of	 the  Investigating  Officer
leaves the  Court guessing.  The affidavit  led in  the High
Court states that the Respon-
782
dent is	 the Sarpanch  of the  village and is an influential
person and  that his  father is	 Ex-M.L.A. and is at present
Pradhan of  the Panchayat  Samiti.  They  are  not  relevant
considerations for  cancelling anticipatory  bail,  when  it
appears to have been granted by a clear misconception of the
relevant considerations	 governing the grant of anticipatory
bail, [786F-H; 787A-B]
     5. The accusation against the respondent is that he has
committed an offence of murder punishable under s.302 I.P.C.
Surprisingly,  when   anticipatory  bail   was	granted	  on
September 30, 1983 there is not a whisper of it in the order
of the learned Session Judge. When a person is accused of an
offence of  murder by the use of a fire arm the Court has to
be careful  and circumspect  in entertaining  an application
for   anticipatory   bail.   Relevant	considerations	 are
conspicuous by silence in the order of the Session Judge, In
the instant case, it cannot be said that the accusation does
not appear  to stem  from motives  of furthering the ends of
Justice but  from some ulterior motive and the object was to
injure and  humiliate the respondent by having him arrested.
What prompted  the Sessions Judge to grant anticipatory bail
leaves the Court guessing and the Court is none the wiser by
the order of the High Court declining to interfere. [787D-F]
     6. The  order of the Session Judge clearly directs that
if the	respondent is  taken into  custody by the police, he
must be	 released on  bail on his furnishing security in the
amount mentioned  by him.  The order  is styled as one under
s.438 Cr.P.C. [787H]
     7. Unquestionably,	 no case  was made  out for granting
anticipatory bail in this case. Status in life, affluence or
otherwise,  are	  hardly   relevant   considerations   while
examining  the	 request  for  granting	 anticipatory  bail.
Anticipatory bail  to some  extent intrudes in the sphere of
investigation of  the crime  and the  Court must be cautious
and circumspect	 in exercising such power of a discretionary
nature. In  the instant	 case, the  power was  exercised sub
silentio as  to reasons	 or on	irrelevant or considerations
not germane  to the  determination. -  This Court,  to avoid
miscarriage of justice, must interfere . [787D-E]
     8. Some  very compelling circumstances must be made out
for granting  bail to  a person accused of committing murder
and that  too when  the investigation is in progress. In the
instant case  the Investigating Officer did not even attempt
to arrest  the appellant  though the  initial accusation was
under s.307 I.P.C. punishable with imprisonment for life and
as 50-n	 as the	 victim of  the	 assault  succumbed  to	 his
injuries and offence under s.302 was registered, promptly an
application for	 anticipatory bail  was made and granted. If
such an	 order is  allowed to  stand,  faith  of  public  in
administration of  justice  is	likely	to  be	considerably
shaken- Therefore,  the order  granting anticipatory bail is
cancelled.
						    [789D-F]
     9. Settling  aside the order granting anticipatory bail
should in no way prejudice the respondent. It si open to him
to move an application for being
783
enlarged on  bail and  the Court  would consider the same on
merits	wholly	uninfluenced  by  the  earlier	orders,	 the
judgment of  the learned  Single Judge of the High Court and
this Judgment. [789G-H]
     Shri Gurbaksh Singh Sibbia and Ors. v. State of Punjab,
[1980] 2 S.C.C. 565, relied upon.
     Gurcharan Singh  and Ors.	State(Delhi Administration),
[1978] 2  S.C.R. 358,  State v. Capt. Jagjit Singh, AIR 1962
S.C. 253,  Delhi Admn.	v. Sanjay  Gandhi, AIR 1978 S.C. 961
and Bhagirath  Singh Judeja  v. State  of Gujarat,  [1984] I
S.C.C. 284, referred to



JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 324 Of 1985 From the judgment and order dated 7.7. 1984 of the High Court of Rajasthan in Crl. Misc. Appln. No. 758 of 1983.

Sobhag Mal Jain and S.K. Jain for the Appellant. A.N. Mulla, Surya Kant and B. Sharma for the Respondents. The Judgment of the Court was delivered by DESAI, J. Special leave granted.

Unusual though it may appear to be, under a compelling necessity in the interest of justice, we would depart from the ordinary response of this Court to matters involving bail. Ordinarily, this Court is loathe to interfere with the orders granting or refusing bail but it cannot be an insurmountable obstacle in the way of rectifying an order which tends to disclose miscarriage of justice.

An incident occurred on August 23, 1983 in which one Bhanwaria, son of the present appellant received fatal injuries resulting in his death. An information was lodged with the Police Station, Khedapa, District Jodhpur, Rajasthan State about the occurrence on August 24, 1983 around 11.30 A.M. At that time Bhanwaria was alive and the offence was registered under Sec. 307, 447 read with Sec. 149 under Sec. 148, 379 and 327 of the Indian Penal Code. When the hospital authority sent the message 784 that Bhawaria, the victim of assault, who was admitted in the hospital for treatment has succumbed to his injuries, the Investigating Officer also added an offence under Sec. 30' IPC. Soon thereafter on September 29, 1983, the second respondent Chandan Singh s/o Shri Ranjit Singh ('respondent' for short) appeared before the learned Sessions Judge, Jodhpur and moved an application under Sec. 438, Cr. P. C. for granting him anticipatory bail. The public prosecutor appearing for the State opposed the application for grant of anticipatory bail. The learned Judge by his order dated September 30, 1983 accepted the application and granted anticipatory bail to the respondent observing that the dispute is with regard to the right to cultivate a certain field from which when deceased Bhanwaria was coming out, the respondent fired at him and caused the injuries which proved fatal. The learned Judge further observed that keeping in view some decisions referred to by him, he was of the opinion that the application tor anticipatory bail should be granted. The learned Judge then ordered that if the 1) accused is taken into custody by the police, he must be released on bail on his furnishing security in the amount of Rs. 5,000 on condition that he will assist in investigation and will not interfere in the investigation and will not go out of India.' The present appellant moved the High Court of Rajasthan questioning the correctness of this order and for cancellation of the anticipatory bail.A learned Single Judge of the High Court negatived the contention that the petitioner had no locus standi to move the High Court for cancellation of anticipatory bail. On merits, the learned Judge after referring to several decisions observed that while dealing with an application for cancellation of bail warranting interference with the discretionary order passed by the learned Sessions Judge granting bail, the considerations which should weigh with the court were whether: (1) the accused would be readily available during the trial; (2) he is not likely to abuse the discretion granted his favour 'by tampering with the prosecution witnesses, concluded that the respondent and his father are influential persons and hold important posts in the Panchayat or Zila Parishad furnished no ground for cancelling bail and that it is not necessary to examine whether anticipatory bail ought to have been granted, but what must be considered is whether a case tor cancellation of the same is made out. The learned Judge then held that 785 such grounds are not shown to exist and accordingly rejected the application. Hence this appeal by special leave.

Relevant considerations governing the court 's decision in granting anticipatory bail under Sec. 438 are materially different from those when an application for bail by a person who is arrested in the course of investigation as also by a person who is convicted and his 13 appeal is pending before the higher court and bail is sought during the pendency of the appeal. Three situations in which the question of granting or refusing to grant bail would arise, materially and substantially differ from each other and the relevant considerations on which the courts would exercise its discretion, one way or the other, are substantially different from each other. This is necessary to be stated because the learned Judge. in the High Court unfortunately fell into an error in mixing Up all the considerations, as if all the three become relevant in the present situation.

The decision of the Constitutional Bench in Shri Gurbaksh Singh Sibbia & Ors. v. State of Punjab(1) clearly lays down that 'the distinction between an ordinary order of bail and an order of anticipatory bail is that whereas the former is granted after arrest and there fore means release from the custody of the police, the latter is granted in anticipation of arrest and is therefore effective at the very moment of arrest.' Unlike a post-arrest order of bail, it is a pre-arrest legal process which directs that if the person in whose favour it is issued is thereafter arrested on the accusation in respect of which the direction is issued, he shall be released on bail. direction under Sec. 438 is intended to confer conditional immunity from the touch as envisaged by Sec. 46 (1) or confinement. In para 31, Chandrachud, CJ clearly demarcated the distinction between the relevant considerations while examining an application for anticipatory bail and an application for bail after arrest in the course of investigation, Says the learned Chief Justice that 'in regard to anticipatory bail, if the proposed accusation appears to stem not from motives of furthering the ends of justice but from some ulterior motive, the object being to injure and humiliate the applicant by having him arrested, a direction for the release of the appellant on bail in the event of his arrest' would generally be made. It was observed that 'it cannot be laid down as an inexorable rule that anticipa- (1) [1980] 2 S.C.C. 565.

786

tory bail cannot be granted unless the proposed accusation appears to be actuated by mala fides; and equally, that anticipatory bail must be granted if there is no fear that the applicant will abscond.' Some of the relevant considerations which govern the discretion, noticed therein are the nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the applicant's presence not being secured at the trial, a reasonable apprehension. that witnesses will be tampered with and "the larger interests of the public or the State", are some of the considerations which the court has to keep in mind while deciding an application for anticipatory bail.' caution was voiced that 'in the evaluation of the consideration whether the applicant is likely to abscond, there can be no presumption that the wealthy and the mighty will submit themselves to trial and that the humble and the poor will run away from the course of justice, and more than there can be a presumption that the former are not likely to commit a crime and the latter are more likely to commit it.

Having noticed the relevant considerations which should weigh with the court in the matter of granting or refusing to grant anticipatory bail, let us first look at the order made by the learned Sessions Judge.

The incident in which Bhanwaria was injured with fire arm occurred on August 23, 1983 in respect of which the first information report was lodged on August 24, 1983, in which it was in clear and unambiguous terms alleged that the respondent was at the relevant time armed with a gun and fired towards Bhanwaria who suffered injuries by gun shot- The incident occurred as stated earlier around 4.00 P. M. On August 23, 1983 and this information is lodged with the Police Station at a distance of 30 k.m. from the scene of occurrence on August 24, 1983 at 11.30 a.m. Amongst others, the offence registered was under Sec. 307 IPC i.e. attempt to commit murder. The first information report thus discloses use of fire arm with which the respondent attempted to commit murder of Bhanwaria. Surprisingly, the Investigating Officer had not arrested him till September 29, 1983 when he moved an application for anticipatory bail under Sec.438 of the Code of Criminal Procedure presumably after coming to know that injured Bhanwaria has succumbed to his injuries and the offence would one of murder 787 punishable under Sec. 302 IPC. This conduct of the Investigating Officer left us guessing. Some light is shed by some averments from the affidavit filed in the High Court and extracted by the learned Judge in his judgment. It is stated that the respondent is the Sarpanch of Vil. Danwara and is an influential person and that his father Ranjit Singh is ex-M.L.A. and is at present Pradhan of the Panchayat Samiti. Are these relevant considerations for not cancelling anticipatory bail when it appears to have been granted by a clear misconception of the relevant considerations governing of anticipatory bail ? The answer is emphatically in the negative in view of the extracted observations from the decision of the Constitution Bench in Gurbaksh Singh Sibbia's case.

The accusation against the respondent is that he has committed an offence of murder punishable-under Sec. 302 IPC. Surprisingly, when anticipatory bail was granted on September 30, 1983, there is not a whisper of it in the order of the learned Sessions Judge, Jodhpur. When a person is accused of a offence of murder by the use of a fire arm, the Court has to be careful and circumspect in entertaining an application for anticipatory bail. Relevant considerations are conspicuous by silence in the order of the learned Sessions Judge. Could it be said in this case that the accusation appears to stem not from motives of furthering the ends of justice but from some ulterior motive ? Could it be said that the object being to injure and humiliate the respondent by having him arrested ? What prompted the learned Sessions Judge to grant anticipatory bail left us guessing and we arc none the wiser by the discussion in the order of the learned Single Judge declining to interfere.

Mr. Mulla, learned counsel who appeared for the respondent urged that the order of the learned Sessions Judge is not of anticipatory bail under Sec. 438 but it is an order made after looking into the papers of investigation and therefore, it is an order of bail under Section 439 of the Code of Criminal Procedure. We remain unconvinced because the order of the learned Sessions Judge clearly directs that if the respondent is taken into custody by the police, he must be released on bail on his furnishing security in the amount mentioned by him. The learned Judge himself styled the order as one under Sec. 438 of the Code of Criminal Procedure. If there was any doubt about this aspect? the penultimate para of the judge-

788

ment of the learned Single Judge of the High Court dispels the same when it recites that no order for cancelling bail can be made when the learned Additional Sessions Judge No. 1, Jodhpur has granted anticipatory bail to the respondent by his order dated September 30, 1983.

Mr. Mulla then attempted to urge that on merits a good case for granting bail is made out. We are not inclined to examine this contention because neither the learned Sessions Judge nor the learned Single Judge of the High Court has examined the case from that angle. The only question which we were called upon to decide is whether: the learned Sessions Judge was justified in granting anticipatory bail in the facts and circumstances of this case ? Unquestionably, no case was made out for granting anticipatory bail in this case. Let it be made distinctly clear that status in life, affluence or otherwise, are hardly relevant considerations while examining the request for granting anticipatory bail. Anticipatory bail to some extent intrudes in the sphere of investigation of crime and the court must be cautious and circumspect in exercising such power of a discretionary nature. This case amply illustrates that the power was exercised sub silentio as to reasons or on irrelevant or considerations not germane to the determination. This Court, to avoid miscarriage of justice, must interfere.

The High Court referred to two decisions of the Rajasthan High Court on the question of locus standi of the present appellant but once that was conceded and not questioned before us, we need not refer to them. The learned Judge then referred to the decision in Gurbax Singh sibba's case, but failed to take note of the relevant observations which we have extracted herein before. Reference to the decision in Gurcharan Singh & Ors. v. State (Delhi Administration)(1) by the High Court is hardly apposite because the controversy centered round the power of the High Court to deal with the application for cancellation of bail under Section 439(2? of the Code of Criminal Procedure and on merits this Court held that the High Court was not justified in cancelling the bail The Court was not concerned with examining the relevant considerations for granting or refusing to grant anticipatory hail in that case. The deision in (1) [1973] 2 SCR 358.

789

State v. Capt. Jagjit singh(1) would be of n assistance as the provision of anticipatory bail come to be introduced in the Code of 1973. Similarly the decision in Delhi Admn. v. Sanjay Gandhi(2) is of no assistance because the court was concerned with the question of cancellation of bail already granted long back in the facts and circumstances of the case on account of events subsequent to the order granting bail. The High Court lastly referred to Bhagirath Singh Judeja v. State of Gujrat (3) because that was the case in which accusation was for an offence under Sec. 307 IPC and the learned Sessions Judge had granted bail which order was quashed by the High Court. As stated earlier, by reference to these decisions not of topical interest bearing on the question of grant or refusal of anticipatory bail the High Court unfortunately missed crux of the matter.

Before we conclude this judgment, it must be made distinctly clear that some very compelling circumstances must be made out for granting bail to a person accused of committing murder and that to when the investigation is in progress. In fact, the Investigating Officer did not even attempt to arrest the appellant though the initial accusation was under Sec. 307 IPC punishable with imprisonment for life. And as soon as the victim of the assault succumbed to his injuries and an offence under Sec. 302 was registered, promptly an application for anticipatory bail was made and granted. If such an order is allowed to stand, faith of public in administration of justice is likely to be considerably shaken. Therefore, we have no option but to cancel the order granting anticipatory bail.

By our setting aside the order granting anticipator bail, respondent should in no way be prejudiced. If consequent upon the setting aside of the order granting anticipatory bail, the respondent is arrested which must ordinarily follow, it is open to him, if he is so advised, to move an application for being enlarged on bail and the Court would consider the same on merits wholly uninfluenced by the earlier orders, the judgment of the learned Single Judge of the High Court and this judgment.

(1) AIR 1962 S.C. 253.

(2) AIR 1978 S.C. 961.

(3) [1984] 1 S.C.C.284.

790

Accordingly this appeal is allowed and the order dated September 30, 1983 granting anticipatory bail to the respondent Chandan Singh s/o Ranjit Singh is quashed and set aside and the bond furnished by him is cancelled. We order accordingly.

A.P.J					      Appeal allowed
791