Gurbaksh Singh Sibbia: Sarbajit Singh vs State Of Punjab

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1980 Supreme(SC) 184

SUPREME COURT OF INDIA
Y.V. CHANDRACHUD, CJI., P.N. BHAGWATI, N.L. UNTWALIA, R.S. PATHAK AND O. CHINNAPPA REDDY, JJ.
Gurbaksh Singh Sibbia etc., Appellants
Versus
The State of Punjab, Respondent.
Criminal Appeals Nos. 335 to 339, etc. of 1977 and 1, 15 to 17 etc. of 1978 and Spl. Leave Petn. (Criminal) Nos. 260, 272 to 274 etc. of 1978
Decided on 9-4-1980.
AND
Sarbajit Singh and another, Petitioners
Versus
The State of Punjab, Respondent.
Advocates appeared
Mr. M. C. Bhandare, Sr. Advocate (335, 430, 431, 438); Mr. Gobind Das, Sr. Advocate (153), Mr. K. S. Thapar, Advocate (506 and 154/78), Mr. Dilip Singh, Advocate (506 and 154/78); Mrs. Sunanda Bhandare, 1635 Advocate, M/s. A. N. Karkhanis, Deepak Thaper, Advocates (in 335, 430, 431, 506/77 and 154/78) and Miss Malini, Advocate for Appellants in Crl. A. Nos. 335, 365, 430, 431, 506, 508, 499/77, 130, 141, 142, 153, 154 and Petitioners in SLPs. 272-274/78; Mr. Frank Anthony, Sr. Advocate (350), Mr. V. C. Mahajan, Sr. Advocate (338), Mr. O. P. Sharma, Advocate MR. R. C. Bhatia, Advocate for Appellants in Crl A. Nos. 336 to 338, 350, 396, 397-399, 473, 474/77 and 1, 15 to 17, 69, 70, 81,82, 98 and 149 and 109/78; Mr. Harjinder Singh, Advocate for Appellant in Crl. A. No. 339/77; Mr. B. S. Bindra, Sr. Advocate Mr. S. M. Ashri, Advocate Mrs. Lakshmi Arvind, Advocate for Appellants in Crl. As. Nos. 347, 366, 415-420, 477, 511, 512, 469/77 and 145/78; Mr. P.R. Mridul, Sr. Advocate (M/s. H. K. Puri, Aruneshwar Prasad and Vivek Seth, Advocate for Appellant in Crl. A. No. 346/77); Mr. L. N. Sinha, Sr. Advocate (406 and 352), M/s. R. P. Singh, L. R. Singh, Suman Kapoor and Sukumar Sahu (406 and 352), Mr. M. C. Bhandare, Sr. Advocate (436), M/s. P. P. Singh, Advocate (435) and Mr. R. K. Jain, Advocate for Appellants in Crl. A. Nos. 351, 352, 406, 438-40, 463/77; Mr. S. K. Jain, Advocate for Appellant in Crl. A. No. 53/78; Mr. V. M. Tarkunde, Sr. Advocate (367), M/s. M. M. L. Srivastava R. Satish and E. C. Agrawala, Advocate for Appellant in Crl. A Nos. 367/77 and SLP 383/78; Mr. V. C. Mahajan, Sr. Advocate Mr. Harbhagwan Singh, Sr. Advocate M/s. S. K. Mehta, K. R. Nagaraja and P. N. Puri, Advocates for Appellant in Crl. A. Nos. 383/78 and 498/77; Mr. K. K. Mohan, Advocate for Appellant in SLP 260/78; Mr. A. K. Sen, Sr. Advocate Mr. Rathin Dass, Advocate for Appellant in Crl. A. Nos. 40, 41/78; Mr. M. M. L. Srivastava, Advocate for Appellant in SLP 388/78; Mr. L. M. Singhvi, Sr. Advocate Mr. N. S. Dass Behl, Advocate for Appellants in Crl. A. Nos. 38/78 and SLP 479/78; Mr. Soli J Sorabjee, Addl. Sol. Genl. (335), M/s. Bishamber Lal Khanna (355), Hardev Singh, R. S. Sodhi, and B. B. Singh, Advocates for Appellants in Cr. As. Nos. 447-449/77 and Respondents in Crl. A. Nos. 335-339, 347, 350-52 366, 367, 388, 396-398, 406, 415-420, 438-440, 463, 473, 474, 477, 498, 511/77, 1, 15-17/78, 469, 510/77, 109/78 and SLP Nos. 388/78, Crl. A. No. 98/78 and SLP No. 260/78; Mr. Soli J. Sorabjee, Addl. Sol Genl. (430), Mr. Thakur Naubat Singh, Dy. Adv. Genl. Haryana, (M/s. S. N. Anand, Advocate (431 and 499), Mr. R. N. Sachthey, Advocate for Respondents in Crl. A. Nos. 365, 430 and 431/77, 508, 499/77 and 38, 141 and 142/78; Mr. M. M. Kshatriya and G. S. Chatterjee, Advocates for Respondents in Crl. A. Nos. 40 and 41/78; Mr. M. M. Punchi and P. C. Bhartari, Advocates for Appellant in Crl. A. No. 346/77; M/s. J. K. Gupta, B. R. Agarwala, Janendra Lal, Advocates for Vice-Chancellor, Punjab University in Crl. A. No. 346/77.
* Criminal Misc. Nos. 3753M and 3718 to 8720 of 1977, D/- 13-9-1977 reported in AIR 1978 Punj and Har 1 (FB); 3564M of 1977, D/- 2-9-1977; 1978 Cri LJ NOC 60; 3716M of 1977, D/- 7-9-77, reported in 1977 Cur LJ (Cri) 237; 5240M of 1977, D/- 14-11-1977, reported in 1978 Pun LJ (Cri) 61 (FB); 1137M of 1978, D/- 10-3-1978.

Advocates:
A.K.SEN GUPTA, A.N.Karkhanis, ARUNESHVAR PRASAD, B.B.Singh, B.C.AGRAWAL, B.R.AGRAWAL, Bishambar Lal Khanna, C.S.CHATTERJI, Dilip Singh, DIPAK THAPAR, FRANK ANTHONY, GOVIND DAS, H.K.PURI, HARBHAGVAN SINGH, HARDEV SINGH, Harjinder Singh, J.K.GUPTA, JANENDRA LAL, K.K.Mohan, K.R.NAGARAJA, K.S.BINDRA, K.S.THAPAR, L.M.SINGHVI, L.N.Sinha, L.R.SINGH, LAKSHMI ARVIND, M.C.BHANDARE, M.L.SHRIVASTAV, M.M.KSHATRIYA, M.M.Punchhi, MALINI KAPADIA, N.S.DAS BEHL, O.P.Sharma, P.C.BHARTARI, P.N.PURI, P.P.SINGH, P.R.MRIDUL, R.K.JAIN, R.N.SACH, R.P.SINGH PAL, R.S.SODHI, R.SATISH, RATHIN DAS, S.C.BHATIA, S.K.JAIN, S.K.MEHTA, S.M.Ashri, S.N.ANAND, SOLI J.SORABJI, SUKUMAR SAHU, SUMAN KAPUR, Sunanda Bhandare, THAKUR NAUBAT SINGH, V.C.MAHAJAN, V.M.TARKUNDE, VIVEK SETH

Headnote:Code of Criminal Procedure 1973, Sec. 438 - Scope of the section - Power of the Court to grant anticipatory bail - Clause (1) of the section is broad and unqualified and no restraints and conditions should be put upon it which the legislature itself did not think it proper in impose - The Legislature conferred a wide discretion on the High Court and the Court of Sessions and did not enumerate the conditions because the intention was to grant a free hand - Sub Sec. 2 of the section by providing “may include such conditions in such directions in the light of facts of a particular case, as it may thinks fit” including the conditions which are set out in Clause (i) to (iv), further clarify the legislative intent conferring wide discretionary power - Courts should be left free to exercise their judicial discretion if the circumstance demand grant of bail it should be granted and may be refused on considerations similar to those mentioned in section 437 or which are generally considered to be relevant under sec. 439 of the Code - No rule for exercise of Judicial constructions can be framed or enumerated - Discretion to be exercised objectively and open to correction by higher Courts - The power to grant is not restriction by sec. 437 - It a parson has not been arrested although an FIR or Charge sheet has been filed he may be granted anticipatory bail if the circumstances so permit - The power is unguided and uncanalised but it must be exercised with care and circumspection, depending on the circumstances justifying its exercise-Grant of anticipatory bail does not put restraint upon the police to make investigation. (Paragraphs 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 25, 27, 28 & 30)

Judgement Key Points

Certainly. Here are the key points based on the provided legal document:

The section under consideration confers broad and unqualified discretionary power on the High Court and the Court of Session to grant anticipatory bail, emphasizing that no restrictive conditions should be imposed that the legislature did not itself specify (!) (!) .
The legislative intent was to leave the exercise of this power to the courts' judicial discretion, allowing them to consider the facts of each case without being fettered by rigid conditions, and to exercise this discretion objectively (!) (!) .
The power to grant anticipatory bail is an extraordinary remedy, intended to be used only in exceptional cases where there is a reasonable apprehension of arrest, and not as a blanket protection against all potential accusations (!) (!) .
The section aims to protect individual liberty by enabling a person to seek bail before arrest, but this should not be used to facilitate unlawful activities or to create a shield against investigation (!) (!) .
The discretion to grant or refuse anticipatory bail must be exercised judiciously, considering various factors such as the nature of the offence, the likelihood of absconding, the conduct of the applicant, and the larger public interest, without imposing unnecessary restrictions (!) (!) .
The section does not restrict the court from imposing reasonable conditions when granting anticipatory bail, but such conditions should not be overly restrictive or inconsistent with the legislative intent (!) (!) .
The right to personal liberty is fundamental, and any restrictions on this right through anticipatory bail should be fair, reasonable, and in accordance with the principles of constitutional protections, especially Article 21 (!) (!) .
The application for anticipatory bail should be based on specific, tangible facts demonstrating a reasonable belief of arrest, rather than vague or general allegations, to prevent misuse of the provision (!) (!) .
Filing of a First Information Report (FIR) is not a prerequisite for invoking Section 438, and anticipatory bail can be granted even before an FIR is filed, provided there is a reasonable belief of impending arrest (!) .
After arrest, the remedy shifts from anticipatory bail to regular bail under Sections 437 or 439, and anticipatory bail cannot be granted once the person is in custody (!) .
The section’s language indicates that the courts should exercise their discretion in a manner that balances individual liberty with the needs of law enforcement, avoiding rigid rules or conditions that could undermine this balance (!) (!) .
The section’s provisions are designed to be flexible, allowing courts to impose suitable conditions based on the facts, but not to restrict the fundamental right to liberty unnecessarily or unreasonably (!) (!) .
The power under Section 438 is meant to be exercised sparingly and only in cases where there is a justified, specific reason to believe that arrest may be unjustified or mala fide (!) (!) .
The legislature intentionally used broad language to empower courts to exercise their discretion freely, and this discretion must be exercised in a manner consistent with constitutional protections and the principles of justice (!) (!) .
Overall, the legal framework encourages courts to exercise their discretion responsibly, ensuring that anticipatory bail is granted in genuine cases, while safeguarding the investigational process and public interest (!) (!) .

Please let me know if you need a more detailed analysis or specific legal advice related to this document.

JUDGMENT

CHANDRACHUD, CJI.:— These appeals by Special Leave involve a question of great public importance bearing, at once, on personal liberty and the investigational powers of the police. The society has a vital stake in both of these interests, though their relative importance at any given time depends upon the complexion and restraints of political conditions. Our task in these appeals is how best to balance these interests while determining the scope of S. 438 of the Cr. P. C., 1973 (Act No. 2 of 1974).

2. Section 438 provides for the issuance of direction for the grant of bail to a person who apprehends arrest. It reads thus:

"488. (1) 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 the Court of Session for a direction under this section, and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.

(2) When the High Court or the Court of Session makes a direction under sub sec. (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including.

(i) a condition that the persons 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-sec. (3) of S. 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-sec. (1)."

3. Criminal Appeal No. 335 of 1975 which is the first of the many appeals before us, arises out of a judgment dated Sept. 13, 1977 of a Full Bench of the High Court of Punjab and Haryana. * The appellant therein, Shri Gurbaksh Singh Sibbia, was a Minister of Irrigation and Power in the Congress Ministry of the Government of Punjab. Grave allegations of political corruption were made against him and others whereupon, applications were filed in the High Court of Punjab were filed in the High Court of Punjab and Haryana under S.438, praying that the appellants be directed to be released on bail, in the event of their arrest on the aforesaid charges. Considering the importance of the matter, a learned single Judge referred the applications to a Full Bench, which by its judgment dated Sept. 13, 1977 dismissed them.

* Reported in AIR 1978 Punj & Har 1 (FB)

4. The Cr. P.C. 1898 did not contain any specific provision corresponding to the present S. 438. Under the old Code, there was a sharp difference of opinion amongst the various High Courts on the question as to whether courts had the inherent power to pass an order of bail in anticipation of arrest, the preponderance of view being that it did. not have such power. The need for extensive amendments to the Cr. P.C. was felt for a long time and various suggestions were made in different quarters in order to make the Code more effective and comprehensive. The Law Commission of India, in its 41st Report dated Sept. 24, 1969 pointed out the necessity of introducing a provision in the Code enabling the High Court and the Court of Session to grant "anticipatory bail".

It observed in para. 39.9 of its report (Vol. I):

"39.9. The suggestion for directing the release