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PUNJAB & HARYANA HIGH COURT
S.S.Sandhawalia, Prem Chand Jain and S.C.Mital JJ.
Gurbaksh Singh Sibia
Versus
State Of Punjab
Criminal Miscellaneous No. 3753-M of 1977,
Decided On : SEPTEMBER 13, 1977
The Court discussed the scope and ambit of anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973. It held that the power to grant anticipatory bail is an extraordinary one and must be exercised sparingly and only in exceptional circumstances. The Court also held that the power is not unguided or uncanalised, but is subject to the limitations imposed by Section 437 of the Code. In addition, the petitioner must make out a special case for the exercise of the power. The Court further held that the power should not be exercised in cases where the investigation agency can make out a legitimate case for the remand of the offender to police custody under Section 167(2) of the Code or where a reasonable claim to secure incriminating material from information likely to be received from the offender under Section 27 of the Evidence Act can be made out. The Court also held that the power should not be exercised in cases of offences punishable with death or imprisonment for life unless the Court is satisfied that the charge is false or groundless. Finally, the Court held that the larger interest of the public and the State demand that in serious cases like economic offences involving blatant corruption at the higher rungs of the executive and political power, the discretion under Section 438 of the Code should not be exercised.
Fact of the Case:
The case involved two petitions for anticipatory bail filed by Sat Pal Mittal and Gurbachan Singh Behniwal, who were accused of corruption and misuse of power during the Emergency. The petitioners argued that the allegations against them were false and politically motivated, and that they should be granted anticipatory bail to protect their liberty and reputation. The State of Punjab opposed the petitions, arguing that the charges against the petitioners were serious and that they should not be granted anticipatory bail.
Finding of the Court:
The Court held that the power to grant anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973 is an extraordinary one and must be exercised sparingly and only in exceptional circumstances. The Court also held that the power is not unguided or uncanalised, but is subject to the limitations imposed by Section 437 of the Code. In addition, the petitioner must make out a special case for the exercise of the power. The Court further held that the power should not be exercised in cases where the investigation agency can make out a legitimate case for the remand of the offender to police custody under Section 167(2) of the Code or where a reasonable claim to secure incriminating material from information likely to be received from the offender under Section 27 of the Evidence Act can be made out. The Court also held that the power should not be exercised in cases of offences punishable with death or imprisonment for life unless the Court is satisfied that the charge is false or groundless. Finally, the Court held that the larger interest of the public and the State demand that in serious cases like economic offences involving blatant corruption at the higher rungs of the executive and political power, the discretion under Section 438 of the Code should not be exercised.
Issues: 1. Whether the power to grant anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973 is an extraordinary one and must be exercised sparingly and only in exceptional circumstances? 2. Whether the power is unguided or uncanalised, or is subject to the limitations imposed by Section 437 of the Code? 3. Whether the petitioner must make out a special case for the exercise of the power? 4. Whether the power should be exercised in cases where the investigation agency can make out a legitimate case for the remand of the offender to police custody under Section 167(2) of the Code? 5. Whether the power should be exercised in cases where a reasonable claim to secure incriminating material from information likely to be received from the offender under Section 27 of the Evidence Act can be made out? 6. Whether the power should be exercised in cases of offences punishable with death or imprisonment for life? 7. Whether the larger interest of the public and the State demand that in serious cases like economic offences involving blatant corruption at the higher rungs of the executive and political power, the discretion under Section 438 of the Code should not be exercised?
Ratio Decidendi: The Court held that the power to grant anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973 is an extraordinary one and must be exercised sparingly and only in exceptional circumstances. The Court also held that the power is not unguided or uncanalised, but is subject to the limitations imposed by Section 437 of the Code. In addition, the petitioner must make out a special case for the exercise of the power. The Court further held that the power should not be exercised in cases where the investigation agency can make out a legitimate case for the remand of the offender to police custody under Section 167(2) of the Code or where a reasonable claim to secure incriminating material from information likely to be received from the offender under Section 27 of the Evidence Act can be made out. The Court also held that the power should not be exercised in cases of offences punishable with death or imprisonment for life unless the Court is satisfied that the charge is false or groundless. Finally, the Court held that the larger interest of the public and the State demand that in serious cases like economic offences involving blatant corruption at the higher rungs of the executive and political power, the discretion under Section 438 of the Code should not be exercised.
Final Decision: The Court dismissed the petitions for anticipatory bail filed by Sat Pal Mittal and Gurbachan Singh Behniwal.
S.S.SANDHAWALIA, J.
1. The purpose, nature and scope of the power to grant anticipatory bail rested in the higher echelons of the judiciary by Section 438 of the Code of Criminal Procedure has been the subject-matter of debate before the Full Bench in these two petitions for bail which are before us on a reference.
2. On the 26th of August, 1977, Shri Gurbachan Singh Behniwal, I.P.S., Superintendent of Police, Vigilance Squad, forwarded a special report to the Police Station, Civil Lines, Ludhiana, on the basis of which a case under S. 5 (1) (d) and (e) read with S. 5 (2) of the Prevention of Corruption Act and Ss. 406, 409, 477-A and 120-B of the Indian Penal Code, was registered. In the said report, it was alleged inter alia that Shri Zail Singh, former Chief Minister of the Congress Government in Punjab along with some members of his Council of Ministers, some office-bearers of the Punjab Pradesh Congress Committee, some appointees to high public offices and senior ranking Government officials had conspired to collect huge funds for the holding of the Congress Party Session at Mattaur near Chandigarh and to personally amass wealth by abuse of authority and misuse of powers.
3. In pursuance of the said conspiracy, Shri Zail Singh aforesaid accompanied by Shri Joginder Pal Pandey, then State Minister of Public Works Department and Shri Sat Pal Mittal (petitioner) then General Secretary of the Punjab Pradesh Congress Committee held a meeting at Ludhiana in which leading businessmen, industrialists and Government officials had participated. Shri Zail Singh abusing his authority as Chief Minister stressed upon the officials present to collect the maximum funds from industrialists and businessmen for the All India Congress Committee Session to be held at Mattaur and further threatened the businessmen and industrialists that in case of any failure on their part to contribute the maximum funds for the said purpose, drastic action would follow hampering their business.
4. In furtherance of the said conspiracy Shri Santokh Singh Randhawa, then State Development Minister pressurised Mr. Dilbagh Singh Gill, General Secretary of the Punjab Poultry Farmers Association to collect a sum of rupees five lakhs for the Congress Party coffers under the threat that in case of non-payment by them, the quota of 80 per cent, rice bran at Rs. 26 per quintal would be either reduced or abolished. Under this threat Shri Dilbagh Singh Gill collected a sum of Rs. 1,16,005 from the Poultry Farmers and issued receipts therefor and handed over the same to Shri S. S. Randhawa for the purpose of the party funds.
5. Shri Zail Singh along with Shri Dilbagh Singh Daleko, then State Minister for Transport again held a meeting at Amritsar in which Government officials and leading Industrialists also participated and identical demands were made on them. Another meeting of this very nature was held at Jullundur and Goraya by Shri Zail Singh along with Shri Yash then Excise and Taxation Minister, Punjab and Shri Gurbanta Singh, then Agricultural Minister in the State Cabinet in which also high Government officials were present.
6. It is the allegation that Shri Zail Singh collected a sum of rupees three lakhs from various industrialists through cheques whilst Mr. Joginder Pal Pandey collected a sum of Rs. 2.25 lakhs from different firms in the same manner. Shri Yash, Excise and Taxation Minister collected a sum of rupees fifteen to twenty lakhs from liquor contractors and traders whilst Shri Dilbagh Singh Daleko collected rupees eight to ten lakhs from the transporters in the State. Shri Hans Raj Sharma, then Finance Minister in the Congress Government is also alleged to have collected funds and minted money in lakhs and shared the booty with the Chief Minister Shri Zail Singh and some other Ministers unnamed had also collected lakhs of rupees through Government officials under their control by abusing their official position.
7. The Ministers of the Congress
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