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2010 (8) Supreme 353
SUPREME COURT OF INDIA
Dalveer Bhandari and K.S. Panicker Radhakrishnan, JJ.
Siddharam Satlingappa Mhetre — Appellant
versus
State of Maharashtra and Others — Respondents
Criminal Appeal No. 2271 2010.
(Arising out of SLP (Crl.) No.7615 of 2009)
Decided on : 2-12-2010
Criminal Procedure Code,1973- Section 438- Anticipatory Bail-Appeal against order passed by High Court declining bail to appellant -It is a settled legal position crystallized by the Constitution Bench of court in Sibbia’s case that the courts should not impose restrictions on the ambit and scope of section 438 Cr.P.C. which are not envisaged by the Legislature- The court cannot rewrite the provision of the statute in the garb of interpreting it- Once the anticipatory bail is granted then the protection should ordinarily be available till the end of the trial unless the interim protection by way of the grant of anticipatory bail is curtailed when the anticipatory bail granted by the court is cancelled by the court on finding fresh material or circumstances or on the ground of abuse of indulgence by the accused-A number of judgments had been referred to by 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 anticipatory bail should leave it to the regular court to deal with the matter- This view was held clearly contrary to the view taken by Constitution Bench in Sibbia’s case- In view of the clear declaration of the law by the Constitution Bench, the life of the order under section 438 Cr.P.C. granting bail cannot be curtailed- Impugned judgment and order of High Court declining anticipatory bail to the appellant set aside-Appeal allowed (Paras,133,134,149to154)
Personal Liberty-Scope and ambit of - The expression ‘personal liberty’ has wider as well as 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- ‘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 (Paras 62, 63)
Facts of the Case :
Present Appeal has been filed against order passed by High Court declining bail to appellant. Plea of appellant was that since legislature had not circumscribed court’s discretion in any manner while granting anticipatory bail, court should not limit order only for a specified period till the charge-sheet is filed and thereafter compel the accused to surrender and ask for regular bail under section 439 Cr.P.C., meaning thereby the legislature had not envisaged that the life of the anticipatory bail would only last till the charge-sheet is filed.
Findings of the Court :
The Court Held that order granting anticipatory bail for a limited duration and thereafter directing the accused to surrender and apply before a regular bail was contrary to the legislative intention and judgment of the Constitution Bench in Sibbia’s case.The restriction on the provision of anticipatory bail under section 438 Cr.P.C. limits the personal liberty of the accused granted under Article 21 of the constitution. The added observation was nowhere found in the enactment and bringing in restrictions which are not found in the enactment is again an unreasonable restriction. The validity of the restrictions imposed by the Apex Court, namely, that the accused released on anticipatory bail must submit himself to custody and only thereafter can apply for regular bail. This was contrary to the basic intention and spirit of section 438 Cr.P.C. It was also contrary to Article 21 of Constitution. The test of fairness and reasonableness is implicit under Article 21 of the Constitution of India. Directing the accused to surrender to custody after the limited period amounts to deprivation of his personal liberty.Once the anticipatory bail was granted then the protection should ordinarily be available till the end of the trial unless the interim protection by way of the grant of anticipatory bail is curtailed when the anticipatory bail granted by the court is cancelled by the court on finding fresh material or circumstances or on the ground of abuse of indulgence by the accused. Impugned judgment and order of High Court declining anticipatory bail to the appellant was set aside. Appeal was allowed
Result : Appeal allowed.
Certainly. Based on the provided legal document, the key points are as follows:
Section 438 of the Criminal Procedure Code (Cr.P.C.) is an extraordinary provision that allows individuals who anticipate their arrest on a non-bailable offense to seek anticipatory bail, which should generally remain in effect until the conclusion of the trial, unless specifically curtailed for valid reasons (!) (!) .
The legislative intent behind anticipatory bail is to protect personal liberty and uphold the presumption of innocence until guilt is established, without imposing unnecessary restrictions or conditions that are not explicitly provided in the statute (!) (!) .
Orders granting anticipatory bail should not be limited to a fixed short duration or require the accused to surrender after a certain period, as such restrictions are contrary to legislative intent and violate the fundamental rights guaranteed under the Constitution, particularly Article 21 (!) (!) (!) (!) .
The courts have the discretion to grant anticipatory bail based on the facts and circumstances of each case, and this discretion should be exercised judiciously without imposing inflexible or arbitrary limitations, respecting the scope of the law and constitutional protections (!) (!) (!) .
Restrictions such as directing the accused to surrender to custody after a limited period or linking the life of anticipatory bail to the filing of a charge-sheet are not supported by the legislative provisions or the authoritative judicial interpretation, and such restrictions are deemed unreasonable and contrary to the law (!) (!) (!) .
The decision to grant or cancel anticipatory bail lies within the court’s discretion and can be revisited at any time based on new material, circumstances, or misuse of the privilege by the accused; courts are empowered to impose conditions to prevent tampering or influence over witnesses and to ensure cooperation during investigation (!) (!) (!) .
The law emphasizes that anticipatory bail should not be granted as a matter of routine or for limited durations, but rather as a measure that remains effective until the conclusion of the trial, unless justified reasons for cancellation or restriction exist (!) (!) .
Judicial orders regarding anticipatory bail must be exercised with care, caution, and a balanced approach that safeguards individual liberty while considering societal interests, and courts should avoid imposing restrictions that are not explicitly provided in the law (!) (!) (!) .
The judicial hierarchy and precedents establish that decisions of larger benches, such as constitutional or Supreme Court benches, are binding on smaller benches, and any deviation from such binding rulings without proper review constitutes per incuriam (!) (!) .
Overall, the legal framework and judicial principles affirm that anticipatory bail is a vital safeguard of personal liberty that should be granted freely and maintained until the end of the trial, with restrictions only imposed when justified by specific circumstances and in accordance with constitutional protections (!) (!) (!) (!) .
Please let me know if you require further elaboration or assistance with specific legal questions related to this document.
JUDGMENT
Dalveer Bhandari, J. —
1. Leave granted.
2. This appeal involves issues of great public importance pertaining to the importance of individual’s personal liberty and the society’s interest.
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.
4. Brief facts which are necessary to dispose of this appeal are recapitulated as under:
The appellant, who belongs to the Indian National Congress party (for short ‘Congress party’) is the alleged accused in this case. The case of the prosecution, as disclosed in the First Information Report (for short ‘FIR’), is that Sidramappa Patil was contesting election of the State assembly on behalf of the Bhartiya Janata Party (for short ‘BJP’). In the FIR, it is incorporated that Baburao Patil, Prakash Patil, Mahadev Patil, Mallikarjun Patil, Apparao Patil, Yeshwant Patil were supporters of the Congress and so also the supporters of the appellant Siddharam Mhetre and opposed to the BJP candidate.
5. On 26.9.2009, around 6.00 p.m. in the evening, Sidramappa Patil of BJP came to the village to meet his party workers. At that juncture, Shrimant Ishwarappa Kore, Bhimashankar Ishwarappa Kore, Kallapa Gaddi, Sangappa Gaddi, Gafur Patil, Layappa Gaddi, Mahadev Kore, Suresh Gaddi, Suresh Zhalaki, Ankalgi, Sarpanch of village Shivmurti Vijapure met Sidramappa Patil and thereafter went to worship and pray at Layavva Devi’s temple. After worshipping the Goddess when they came out to the assembly hall of the temple, these aforementioned political opponents namely, Baburao Patil, Prakash Patil, Gurunath Patil, Shrishail Patil, Mahadev Patil, Mallikarjun Patil, Annarao @ Pintu Patil, Hanumant Patil, Tammarao Bassappa Patil, Apparao Patil, Mallaya Swami, Sidhappa Patil, Shankar Mhetre, Usman Sheikh, Jagdev Patil, Omsiddha Pujari, Panchappa Patil, Mahesh Hattargi, Siddhappa Birajdar, Santosh Arwat, Sangayya Swami, Anandappa Birajdar, Sharanappa Birajdar, Shailesh Chougule, Ravi Patil, Amrutling Koshti, Ramesh Patil and Chandrakant Hattargi suddenly came rushing in their direction and loudly shouted, “why have you come to our village? Have you come here to oppose our Mhetre Saheb? They asked them to go away and shouted Mhetre Saheb Ki Jai.”
6. Baburao Patil and Prakash Patil from the aforementioned group fired from their pistols in order to kill Sidramappa Patil and the other workers of the BJP. Bhima Shankar Kore was hit by the bullet on his head and died on the spot. Sangappa Gaddi, Shivmurti Vjapure, Jagdev Patil, Layappa Patil, Tammaro Patil were also assaulted. It is further mentioned in the FIR that about eight days ago, the appellant Siddharam Mhetre and his brother Shankar Mhetre had gone to the village and talked to the abovementioned party workers and told them that, “if anybody says anything to you, then you tell me. I will send my men within five minutes. You beat anybody. Do whatever.”
7. According to the prosecution, the appellant along with his brother instigated their party workers which led to killing of Bhima Shanker Kora. It may be relevant to mention that the alleged incident took place after eight days of the alleged incident of instigation.
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 cas
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