Holding

Section 438 confers a wide discretionary power to grant anticipatory bail, which must be exercised judiciously without imposing unwarranted statutory restrictions, and blanket orders are impermissible.

Summary

Gurbaksh Singh Sibbia, a former minister, faced allegations of political corruption and applied for anticipatory bail under Section 438 of the CrPC, fearing arrest for non‑bailable offences. The Punjab and Haryana High Court dismissed the applications, imposing a series of restrictive conditions and rejecting blanket bail. The Supreme Court examined the scope of Section 438, emphasizing that it confers a wide, discretionary power to grant anticipatory bail and must not be fettered by unwarranted judicial rules. It held that the High Court's restrictive propositions, including the prohibition of blanket orders and the requirement of a "special case," were not supported by the statute. The Court clarified that anticipatory bail may be granted only when the applicant shows a reasonable belief of arrest, that blanket orders are impermissible, and that conditions may be imposed under Section 438(2) but without over‑reaching limitations. Consequently, the High Court’s judgment was set aside in part and the appeals were allowed in part.

Issues considered

The proper scope and ambit of Section 438 of the Code of Criminal Procedure, 1973.
Whether a blanket order of anticipatory bail can be granted under Section 438.
Whether the High Court can read into Section 438 the limitations of Section 437 or impose additional conditions such as a "special case" requirement.
Whether anticipatory bail may be denied for offences punishable with death or life imprisonment unless the charge is shown to be false or groundless.
Whether the discretion under Section 438 must be exercised sparingly or can be exercised in ordinary cases where the applicant shows reasonable belief of arrest.

Legislation cited

Code of Criminal Procedure, 1973s. 167, s. 437, s. 438, s. 439, s. 46
Constitution of Indias. Article 21
Indian Evidence Act, 1872s. 27

Subjects

anticipatory bailSection 438 CrPCpersonal libertypolice investigationjudicial discretionbailcriminal procedureArticle 21presumption of innocence

Judgment

383

GURBAKSH: SINGH SIBBIA ETC . A
• v.
STATE OF PUNJAB

April 9, 1980

[Y. V. CllANDRACHUD, C.J., P. N. BHAGWATI, N. L. UNTWALIA, 8
R. S. PATHAK AND 0. CIUNNAPPA REDDY, JJ.]

Bail-Anticipatory Bail-Section 438 of the Code of Criminal Procedure
.J Code, 1913 (Act 2 of 1974), Scope of-Judicial balancing of personal lib<rly
and the investigarional powers of the Police, explained.

The appellant here.in, Sri Gurbaksh Singh Sibbia was a Minister of Irriga..J C
tion 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 Puujab and Haryaua under section
438 of the Criminal Procedure Code, praying that the appellauts be directed to
be relea1!ed. on bail, in the event of their arrest on the aforesaid charges. Conw
sidering the importance of the matter, a learned single Judge referred the appli-
cations to a Full Bench, which by its judgment dated September, 13, 1977 dis- D
missed them, after summarising, what according to it is the true legal position,
of s. 438 of the Code.of Criminal Procedure, 1973 (Act 2 of 1974) thus:

(l) The power uuder Section 438, Criminal Procedure Code, is of
an extra-ordinary character and must be exercised sparingly in
exceptional cases only.
E
(2) Neither Section 438 nor any other provision of the Code autho-
rises the grant of blanket anticipatory bail for offences not yet
committed or with regard to accusations not so far levelled.

( 3) The said power is not unguided or uncanalised but all the
limitations imposed in the preceding Section 437, are implicit
therein and must be read into Section 438. F
( 4) In addition to the limitations mentioned in Section 437, the
petitioner must make out a special case for the exercise of the
power to grant anticipatory bail.

(5) Where a legitimate case for the remand of the offender to the
police custody under Section 167 (2) cau be made out by the G
investigating agency or a reasonable claim to secure incriminat-
ing material from information likely to be received from the
offender under Section 27 of the Evidence Act can be made
out, the power under Section 438 should not be exercised.

(6) The discretion under Section 438 cannot be exercised with
regard to offences punishable with death or imprisonment for H
life unless the Court at that very stage is satisfied that such a
charge appears to be false or groundless.
384 SUPREME COURT REPORTS [! 980] 3 S.C.Rj

(7) The larger interest of the public and State demand that in
serious cases like economic offen~s involving blatant corrup·
tion at the higher rungs of the executive and political power,
the discretion under Section 438 of the Code should not be
exercised; and

(8) Mere general allegations of mala fides in the petition are
B inadequate. The court must be satisfied on materials before
it that the allegations of mala fides are substantial and the
accusation appears to be false and groundless.

The argument that the appellants were men of substance and position who
\Vere hardly likely to abscond and would be prepared willingly to face trial was
rejected by the Full Bench with the observation that to accord differential treat-
c ment to the appellants on account of their status will amount to negation of the
concept of equality before the law and that it could hardly be contended that
every man of status, who was intended to be charged with serious crimes includ-
ing the one under section 409 was punishable with life imprisonment, "was
entitled to knock at the door of the Court for anticipatory bail". The posses-
sion of high status, according to the Full Bench, is not only an irrelevant con-
sideration for granting anticipatory bail, but is, if anything, an aggravating
D circumstance. Hence the appeals by special leave.

The appellants contended : (a) The power conferred by section 438 to
grant anticipatory bail is "not limited to the contigencies" summarised by the
High Court; (b) The power to grant anticipatory bail ought to be left to the
discretion of the Court concerned, depending on the facts and circumstances of
each particular case; ( c) Since the denial of bail amounts to deprivation of
personal liberty; Courts should lean against the imposition of unnecessary res-
trictions on the scope of Section 438, when no such restrictions are ih:iposed by
the legislature in the terms of that section (d) Section 438 is a procedural pro-
vision which is concerned with the personal liberty of an individual who has
not been convicted of the offence in respect of which he seeks bail and who must
be presumed to be innocent. The validity of that section must accordingly be
examined by the test of fairness and which is implicit in Article 21. If the
F legislature itself were to impose an unreasonable restriction could have been
struck down as being violative of Article 21. Therefore, while determining
the scope of section 438, the Court should not impose any unfair or unreason-
able limitation on· the individual's right to obtain an order of anticipatory bail.
Imposition of an unfair or unreasonable limitation would be violative of Article
21 irrespective of whether it is imposed by legislation or by judicial decision.

G Allowing the appeals in part, the Court,

HELD : 1. The· society has a vital stake in both of these interests namely,
personal liberty and the investigational power of the police, though their relative
importance at any given time depends upon the complexion and restraints of
political conditions. The Court's task is how best to balance these interests
while determining the scope of section 438 of the Code of Criminal Procedure.
1973. [393 C-D]
B
2. The High Court and the Court of Session should he left to exercise their
jurisdiction under section 438 by a wise and careful use of their discretion
C:l1RBAKSH SINGH v. PUNJAB 385

Vlhich by their long training and experience, they are ideally suited to do. The A
ends of justice will be better served by trusting these courts to act objectively
and in consonance with principles governing the grant of bail whlch an: recog-
nised over the years, than by divesting them of their discretion which the legis-
lature has conferred upon them, by laying down inflexible rules of general appli-
cation. It is customary, almost chronic, to take a statute as one finds it on the
ground that, after all, "the legislature in its ,visdom" has thought it fit to use a
.particular expression. A convention may u<;efully grow whereby the High Court B
nnd the Court of Session may be trusted to e:xercise their discretionary powers in
their wisdom, especially when the discretion is entrusted to their care by the
legislature in its \visdom. If they err, they are liable to be corrected.
[417 B-D]

.
(
3. Section 438(1) of the Code lays down a condition which has to be satis~
fie.cl before anticipatory bail can be granted. The applicant must show that he
,has 11reason to believe" that he may be arrested for a non·bailable offence. The
use of the expression "reason to believe'' shows that the belief that the applicant
-may be so arrested must be founded on reasonable grounds. Mere 'fear' is not
'belier, for which reason it is not enough for the applicant to show that he has
C

-some sort of a vague apprehension that some one is going to make an accusa~
tiOn 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~ D
bailable effence, must be capable of being examined by the court objectively,
because it is then alone that the court can determine whether the applicant has
reason to believe that he may be so arrested. Section 438(1), therefore, cannot
be invoked on the basis of vague and general allegations, as if to a·rm oneself
in perpetuity against a possible arrest. Otherwise, the number of applications
for anticipatory bail will be as large, as, at any rate, the adult populace. Anti-
cipatory bail is a device to secure the individual's liberty; it is neither a pass~ E
port to the commission of crimes nor a shield against any and all kinds of
nccusation, likely or unlikely. [417 E-H, 418 A]

Secondly, if an application for anticipatory bail is made to the High Court
or the Court of Session it must apply its own mind to the question and decide
whether a case has been made out for granting such relief. It cannot leave the
question for the decision of the Magistrate concerned under Section 437 of the (i'
Code, as and when an occasion arises. Such a course will defeat the very
object of Section 438. [418 A-Bl

Thirdly, the filing of a First Information Report is not a condition precedent
to the exercise Of the power under Section 438. The imminence of a likely
arrest founded on a reasonable belief can be shown to exist even if an F.l.R. is
not yet filed. [418 B-C] G
Fourthly, anticipatory bail can be granted even after an F.l.R. is filed, so
long as the applicant ha-s not been arrested. [418 CJ

Fifthly, the provisions of Section 438 cannot be invoked after the arrest of
the accused. The grant of ''anticipatory bail" to an accused who is undP:r
arrest involves a contradiction in terms. in so far as the off.,nce or offences for
H
which he is arrested, are concerned. After arrest. the accused must seek his
remedy under Section 437 or Section 439 o.f the Code, if he wllnts to be relea«ed
on bail in respect of the offence or offences for which he is arrested. [418 C-E]
386 SUPREME COURT REPORTS [1980] 3 S.C.R.

A 4. However, a "blanket order" of anticipatory bail should not generally be
passed. This flows from the very language of the section which requires the I
appellant to show that he has "reason to believe" that he may be arrested. A
belief can be said to be founded on reasonable grounds only if there is some-
thing tangible to go by on the· basis of which it can be said that the applicant's
I
apprehension that he may be arrested is genuine. That is why, normally, a
direction should not issue under Section 438(1) to the effect that the applicant
B shall be released on bail "whenever arrested for which ever offence whatsoever".
That is what is meant by a 'blanket order' of anticipatory bail, an order which
t1erves as a blanket to cover or protect any and every kind of allegedly unlawful
activity, in fact any eventuality, likely or unlikely regarding which, no concrtte
information can possibly be bad. The rationale of a direction under Section
438(1) is the belief of the applicant founded on reasonable grounds that he
•
may be arrested for a non-bailable offence. It is unrealistic to expect the appli-
c cant to draw up his aplication with the meticulousness of a pleading in a civil
case and such is not requirement of the section. But specific events and facts
must be disclosed by the applicant in order to enable the court to judgt: of the
reasonableness of his belief, the existence of which is the sine qua non of the
exercise of power conferred by the section. [418 E-H, 419 A]
Apart from the fact that the very language of the statute compels iliis cons-
D traction, there is an important principle involved in the insistence that facts, on
the basis of which a direction under Section 438(1) is sought, must be clear and
specific, not vague and general. It is only by the observance of that principle
that a possible conflict between the right of an individual to his liberty and the
right of the police to investigate into crimes reported to then1 can be avoided.
[419 A·C]
A blanket order of anticipatory bail is bound to cause serious interference
E
with both the right and the duty of the police in the matter of invei;;tigation
because, regardless of what kind of offence is alleged to have been conunitted
by the applicant and when, an order of bail which comprehends allegedly unlaw-
fu] activity of any description V.'batsoever, will prevent the police. from arresting
the applicant even if the commits, say, a murder in the presence of the public.
Such an order can then become a charter of lawlessness and weapon to stifle
F prompt investigation into offences which could not possibly be predicated 'When
the order was passed. Therefore, the court which grants anticipatory bail mu~t
take care to specify the offence or offences in respect of which alone the order
will be effective. The power should not be exercised in a vacuum. [419 C-El
S. An order of bail can be passed under section 438(1) of the Code without
notice to the Public Prosecutor. But notice should issue to the public prosecu-
tor or the Government Advocate forthwith and the question of bail should be
G re-examined in the light of the respective contentions of the parties. The
ad-interim order too must conform to the requirements of the section and suit-
able conditions should be imposed on the applicant even at that stage. [419 E-Fl

6. Equally the operation of an order passed under section 438 ( 1) need not
necessarily be limited in point of time. The Court may, if there are rea~on~
for doing so, limit the operation of the order to a short period until after the
H filing of an F.l.R. 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 reasonably short period after the filing of the F.I.R. '
GUI.BAKSH SINGH v. PUNJAB 387

as aforesaid. But this need not be followed as an invariable rule. The normal A
rule should be. not to limit the operation of, the order in relation to a period of
time. [419 F-H]
7. Bail is basically release from restraint, more particularly release from the
custody of the police. The act of arrest directly affects freedom of movement
of the person arrested by the police, and speaking generally, an order of bail
gives back to the accused that freedom on condition that he will appear to take
his trial. Personal recognizance suretyship bonds and such other modalities B
are the means by which an assurance is secured from the accused that though
he has been released on bail, he will present himself as the trial of ofience or
1 offences of which he is charged and for which he. was arrested. [397 ErG!
'fhe distinction between an ordinary order of bail and an order of anticipa-
tory bail is that whereas the former is granted after arrest and therefore means
release from the custody of the police, the latter is granted in anticipation of C
arrest and is therefore effective at the very mqment of arrest. Police custocly
,. is an inevitable concomitant of arrest for non-bailable offences. An order of
anticipatory bail constitutes, so to say, an insurance against police custody
following upon arrest for offence or offences in respect of which the order is
Issued. ht other words, 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 D
' be released on bail. Section 46(1) of the Code of Criminal Procedure which
deals \Vith how arrests are to be made, provides that in making the arrest the
police officer or other person making the arrest "shall actually touch or confine
the body of the person to be arrested, unless there be a submission to the custody
by word or <tction". A <lire-ction under section 438 is intended to confer condi-
tional immunity from this 'touch' or confinement. [397 G-H, 398 A-BJ
8. No one can accuse the police of possessing a healing touch nor indeed E
does anyone have misgivings in regard to constraints consequent upon confine-
ment in polic.e custody. But, society has come to accept and acquiesce in all
that follows upon a police arrest with a certain amount of sang-froid, in so far
as the ordinary rut of criminal investigation is concerned. It is the normal
day-to-day business of the police to investigate into charges brought before
them and, broadly and generally, they have nothing to gain, not favours at
any rate, by subjecting ordinary criminal to needless harassment. But the F
., crinlt's, the criminals and even the complaints can occasionally pm;sess extra-
01dinary features. When the even fl.ow of life becomes turbid, the police can
be called upon to inquire into charges arising out of political antagonism. The
pO\verful processes of criminal law can then be perverted for achieving extra-
neous ends. Attendant upon such investigations, when the police are not free
agents within their sphere of duty, is a great amount of inconveni~nce, har:iss-
ment and humiliation. That can even take the form of the paradmg of a res- G
pectable person in hand-cuffs, apparently on way to a court of justice. The
foul deed is done lNhen an adversary is exposed to social ridicule and obloquy,
no matter when and whether a conviction is secured or is at all possible. It is
in order to meet such situations, though not limited to these contingencies, that
the pov.1e~ to grant anticipatory bail was introduced into the Code of 1973.
[398 C-F]
B
9. Clause (!) of Section 438 is couched in terms, broad and unqualified.
By any known canon of construction, words of width and amplitude ought not
5-289'SC!f80
388 SUPREME COURT Rlll>O'RTS [1980] 3 S.C.R.

A generally to be cut down so as to read into the language of the statute restraints
and conditions which the legislature itself did not think it proper or necessary
to impose. 'This is especially true when the statutory provision \Vhich falls for
i:e;nsideration is designed to secure a valuable right like the right to personal
freedom and involves the application of a presumption as salutary and deep-
grained in our Criminal Jurisprudence as the presumption of innocence.
[401 A-CJ
B
The legislature conferred a wide djscretion on the High Court and the Court
ot Session to grant anticipatory bail because it evidently felt, firstly, that it
would be difficult to enumerate the conditions under which anticipatory bail
should or should not be granted and secondly; because the intention was to
allow the higher courts in the echelon a somewhat free hand in the grant of relief
in the nature Of anticipatory bail. That is why, departing from the terms Of
c Sections 437 and 439, Section 438 (1) uses the language that the High Court or
the Court of Session "may, if it thinks fit" direct thn.t the applicant be· released
on bail. SUb-section (2) of Section 438 is a further and clearer manifestation
of the same legislative intent to confer a wide discretionary power to grant
anticipatory bail. It provides that the High Court or the Court of Session,
while issuing a direction for the grant of anticipatory bail, "may include such
conditions in such directions. in the light of the facts of the particular case. as
D it may think fi.C' including the conditions which are set out in clauses (i) to (iv)
of sub-section (2). The proof of legisla•tive intent can best be found in the
language which the legislature use.<;. Ambiguities can undoubtedly be resolved
by resort to extraneous aids but words, as wide and e;xplicit as have1 been used
in Section 438, must be given their full effect, especially when to refuse to do
so will result in undue impairment of the freedom of the indivk1ual and the pre-
sumption of innocence. It has to b.e borne in mind that anticipatory bail is sought
E when there is- a mere apprehension of arrest on thei accusation that the applicant
has committed a non-bailable offence. A person who has yet to lose his freedom
by being arrested asks for freedom in the event of arrest That is the stage at
which it is imperative to protect his freedom? in so far as one· may, and to give
tull play to the presumption that he is innocent. In fact. the stage at which
anticipatory bail is generally sought brings about its striking dissimilarity with
the situatiori in which a person who is arrested for the commission of a non-
F bailable offences asks for bail. In the latter situation, adequate data is avaiable
to the Court, or can be called for by it, in the light of which it can grant or .
refuse relief and while granting it, modify it by the imposition of an or any of
the conditions mentioned in SectionJ 437. [404 A-G]

10. The amplitude of judicial discretion which is given to the High Court
a·nd the Court of Sessions, to impose such conditions as they may think fit while
G granting anticip~tory bail, should not be cut down, by a process of construction,
by reading irito the statute conditions which are not to be found therein like
those evolved by the High Court. The High Court and the Court of Session to
whom the application for anticipatory bail is made ought to be left free in the
exercise of their judicial discretion to grant bail if they consider it flt so to do
on the particular facts and circumstances of the case and on such coil.ditioris as
the case may warrant. Similarly, they must be left free to refuse bail if the
H circumstances of the case so warrant, on considerations similar to those men-
tioned in Section 437 or which are generally collJSidered to be relevant under
Section 439 of the Code. [405 B-D]
GURBAKSH SINGH V. PUNJAB 389

Generalisations on matters which rest on discretion and the attempt to dis- A
cover formulae of universal application when facts are bound to differ from case
to case frustrate the very purpose of conferring discretion. No t\\'o cases are
alike on facts and therefore, Conrts have to be allowed a little free play iii tho
joints if the conferment of discretionary power is to be meaningful. There is
no risk involved in entrusting a wide discretion to the Court of Session and the
High Court in granting anticipatory bail because, firstly these are higher courts
manned by experienced persons, secondly their order are not final but are open B
to appellate or revisional scrutiny and above all because, discretion has always
to be exercised by courts judicially and not according to whim, caprice or fancy.
On the other band, there is a risk in foreclosing categories of cases in which
anticipatory bail may be allowed because life throws· up unforeseen possibilities
and offers new challenges. Judicial discretion has to be free enough to be able
to take these possibilities in its stride and to meet these challenges·. [405 D-G]
c
Hyman and Anr. v. Rose, 1912 A.C. 623; referred to
11. 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, this Court cuts 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 B
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
CVery situation has to be assessed in the context of emerging concerns as and
when it arises. Therefore, even if this Court were to frame a 'Code for the
grant of anticipatory bail', which really is the business of the legislatun~, it can
at best furnish broad guidelines and cannot compel blind adherence. Jn which E
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 ball "if it thinks fit". The concern
ef the Collrts generally is to preserve their discretion without meaning to abuse
it. It will be strange if the Court exhibits concern to stultify the discretion con- F
ferred upon the Courts by law. [406 D-H]

_l. Discretion, therefore, ought to be permitted to remain in the· domain of dis-
cretion, to be execrised objectively and open to correction by the higher courts.
The safety of discretionary power lies in this twin protection which provides a
safeguard against its abuse. [407 F-G]
12. It is true that the functions of judiciary and the police are in a s"nse G
complementary and not overlapping. An order of anticipatory bail does not
in any way, directly or indirectly, take away from the police their right to
investigate into charges made or to be made against the person released on bail.
In fact, two of the usual conditions incorporated in a direction issued under
section 438(1) are those recommended in Sub-section (2)(i) and (ii) which
require the applicant to co-operate with the police and to assure that he shall
not tamper with the witnesses during and after the investigation. While· grant- n
ing relief under Section 438(1), appropriate conditions can be imposed
uuder Section 438(2), so as to ensure an uninterrupted investigation. One of
390 SUPREME COURT REPORTS [1980] 3 S.C.R.

such conditions 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 discovery. Besides, if and when the occasion arises, it may be
possible for the prosecution to claim the be-nefit of Section 27 of the Evidence
Act in regard to a discovery of facts made in pursuance of information supplied
by a peraon released on bail. [409 D, 41() A-DJ
8
King Emperor v. Khwaja Nazir Ahmed, 71 I.A., 203, State of U.P. v.
Deoman Upadhyaya, [1961] 1 S.C.R. p. 14 @ 26; referred to.

13. In Balchand Jain v. State of Madhya Pradesh, [1977] 2 SCR 52, this
Court was considering whether the provisions of Section 438 relating to antici~
patory bail stand overruled or repealed by virtue of Rule 184 of the Defence
C and Internal Security of India Rules, 1971 or whether both the provisions can -~
I
by rule of harmonious interpretion, exist side by side. It was in that context
that it was observed that "As section 438 immediately fo11ows Section 437
which is the main provision for bail in respect of non-bailable offences, it is
manifest that the conditions imposed by s. 437 ( 1) are implicitly contained in
Section 438 of the Code"~ These observations regarding the nature of the
power conferred by section 438 and regarding the question whether the condi-
D tions mentioned in Section 437 should be read into section 438 cannot, there-
fore be treated as the ratio of the decision. [413 C-D, E]

The power conferred by section 438 is of an "extra ordinary" character
only in the sense that it is not ordinarily resorted to like the power conferred
by sections 437 and 439. [413 E-FJ

Bal Chand Jain v. State of M.P., 11977] 2 S.C.R. 52, distinguished .
.£
14. Since denial of bail amounts to deprivation of personal liberty. the Court
should lean against the imposition of unnecessary restrictions on the scope of
section 438, especially when no such restrictions have been imposed by the
Jegislature in the terms of that section. Section 438 is a procedural provision
which is concerned with the personal liberty of the individual, who is entitled
to the benefit of the presumption of innocence since he is not, on the date of
F his application for anticipatory bail, convicted of the offence in respect of which
he seeks bail. An over·-generous infllsion of constraints and conditions which
are not to be found in Section 438 can make its provisions constitutionally
"ulnerable since the right to personal freedom cannot be made to depend on
compliance with unreasonable restrictions. [413 F-H, 414 A]
Maneka Gandhi v. Union of India, [1978] 1 S.C.C. 248; applied.
G 15. 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
inotive, 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. On the other hand, if it appears likely
considering the antecedents of the applicant, that taking advantage of the order
of anticipatory bail he will flee from justice, such an order would not be made.
'_ B :Sut the con.verse of these propositions is not necessarily true. That is to say
it cannot be laid down as an inexorable rule that anticipatory bail cannot be
granted unless the proposed accusation appears to be actuated by mala fides;
GURBAKSH SINGH V. PUNJAB 391

and, equally, that anticipatory bail must be granted if there is no fear that the A
applicant will abscond. There are several other considerations, too numerous
to enumerate the combined effect of which must weigh with the court while
granting or rejecting anticipatory bail. The nature and seriousness of the pro--
posed 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 B
the court has to keep in mind while deciding an application for anticipatory bail.
[415 G-H, 416 A·C]

State v. Captain Jagjit Singh, [1962] 3 S.C.R. 622, fo!lowed.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeals Nos. 335,
336, 337, 338, 339, 346, 347, 350, 351, 352, 365, 366, 367, 383, c
396, 397, 398, 399, 406, 415, 416, 417, 418, 419, 420,430, 431,
438, 439, 440, 4d7, 448, 449, 463, 473, 474, 477, 498, 506, 508, 512,
511 of 1977, 1, 15, 16, 38, 53, 69, 70 of 1978, 4691499 of 1977, 40,
41, 81, 82, 98, 109, 130, 141, 142, 145, 149, 153 and 154 of 1978.
AND D
Special Leave Petitions (Criminal) Nos. 260, 272, 273, 274,
383, 388 & 479 of 1978.
Appeals by Special leave from the Judgment~ and Orders dated
13-9-77, 13-9-77, 13-9-77, 15-9-77, 13-9-77, 21-9-77, 19-9-77,
23-9-77, 23-9-77, 23-9-77, 26-9-77, 26-9-77, 30-9-77, 7-10-77, 16-9-77 E
9-9-77, 20-9-77, 5-10-77, 20-10-77, 26-9-77, 20-10-77, 20-10-77,
19-10-77, 24-10-77, 25-10-77, 14-9-77, 24-10-77, 2-11-77, 2-11-77,
3-11-77, 2-9-77, 7-9-77, 2-9-77, 9-11-77, 22-11-77, 23-11-77,
24-11-77, 13-12-77, 11-11-77, 23-11-77, 14-12-77, 13-12-77,
20-12-77, 3-1-78, 4-1-78, 5-1-78, 16-1-78, 18-1-78, 30-1-78, p
25-1-78, 18-11-77, 13-12-77, 10-1-78, 13-1-78, 1-2-78, 1-2-78,
8-2-78, 21-12-77, 1-3-78, 3-3-78, 3-3-78, 10-3-78, 8-3-78, 20-3-78,
17-3-78, 15-2-78, 17-2-78, 17-2-78, 24-1-78, 14-3-78, 14-3-78 and
27-3-78 of the Punjab and Haryana High Court in Cr!. Misc. Nos.
l 3753 M, 3719 M, 3720 M, 3916 M, 3718 M, 3793 M, 3565 M,
3892 M, 3595 M, 3596 M, 4359 M, 3563 M, 3484 M, 4627 M, G
3893 M, 3894 M, 3587 M, 4540 M, 4908 M, 3031 M, 4934 M,
_\ I
4916 M, 4888 M, 4964 M, 4992 M, 3688 M, 4907 M, 5176 M,
5177 M, 5197 M, 3564 M, 3716 M, 3717 M, 5344 M, 5558 M,
50"9 M, 5613 M, 5905 M, 5254 M, 5253 M, 5919 M, 5907 M,
6005 M of 1977, 45 M, 68 M, 102 M, 246 M of 1978, 6114 M of
1977, 462 M, 248 M of 1978, 5240 M, 5892 M of 1977, 19/78, H'
956/77, 104 M/78, 104 M/178, 605/78, 5995 M/77, 941 M/78, 904
Ml78, 1005 M/78, 1137 M/78, 819 M/78, 1260 M/78, 866 M/78
392 SUPREME COURT REPORTS [1980] 3 S.C.R.

A & 541 M/78, 4897 M/77, 4758 M/77, 364 M/78, 1167/78,
1168 M/78 and 1381 M/78.
M. C. Bhandare, Gobind Das, K. S. Thapar, Dilip Singh, Mrs.
Sunanda Bhandare, A. N. Karkhanis, Deepak Thapar and Miss Malini
for the Appellants in Cr!. A. No$. 335, 365, 430, 431, 506, 508,
B 499i77, 150, 141, 142, 153, 154 and for the Petitioners in SLPs
272-274 of 1978.
Frank Anthony, V. C. Mahajan, 0. P. Sharma and R. C. Bhatia
for the Appellants in Cr!. A. Nos. 336, 337, 338, 350, 396, 397-399,
473, 474/77 and 1, 15, 16, 17, 69, 70, 81, 82, 98 and 149 and 109
C of 1978.
Harjinder Singh for the Appellant in Cr!. A. 339 of 1977.
B. S. Bindra, S. M. Ashri and Mrs. Lakshmi Arvind for the Appel-
lants in Crl. AJ;. Nos. 348, 366, 415, 420, 477, 511, 512, 469/77
and 145 of 1978.
D
P. R. Mridul, H. K. Puri, Aruneshwar Prasad and Vivek Sethi for
the Appellant in Cr!. A No. 346 of 1977.
L. N. Sinha, R. P. Singh, L. R. Singh, Suman Kapoor, Sukumar
Sahu and M. C. Bhandare, P. P. Singh and R. K. Jain for tho Appel-
lants in Cr!. A. Nos. 351, 352, 406, 438-40, 463/77.
E
S. K. Jain for the Appellant in Crl. A. No. 53/78.
V. M. Tarkunde, M. M. L. Srivastava, R. Satish and E. C. Agra-
wa/a for the Appellant in Crl. A. Nos. 367 /77 and SLP 383/78.
V. C. Mahajan, Harbhagwan Singh, S. K. Mehta, K. R. Nagaraja
and P. N. Purl for the Appellant in Cr!. A. Nos. 383/78 and 498177.
K. K. Mohan for the Petitioner in SLP 260/78.
A. K. Sen and Rathin Dass for the Appellant in Crl. A. Nos. 40,
41/78.
M. M. L. Srivastava for the Petitioner in SLP 388/78.
G L. M. Singhvi and N. S. Das Behl for the Appellants in Cd. A. No.
38/78 and for the Petitioner in SLP 479178.
f
Soli. J. Sorabjee, Addi. Sol. Genl. Bishamber Lal Khanna, liardev
Singh, R. s. Sodhi and B. B. Sinf!h for the Appellants in Cr!. As. Nos.
477-449/77 and respondents in Cr!. A. Nos. 335-339, 347, 350, 352 •
H 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 for the Peti-
tioners in SLP Nos. 388/78, Cr!. A. No. 98 /78 & SLP 260/78.
GURBAKSF! SINGH v. PUNJAB (Chandrachud, C.J.) 393

Sol1. J. Sorabjee Add!. Sol. Genl., Thakur Naubat Singh Adv. A
Genl. Haryana, S. N. Anand and R. N. Sachthey for the Respondent~
in Cr!. A. Nos. 365, 430, & 431/77, 508, 499/78 and 38, 141 and
142/78.
M. M. Kshatriya and G. S. Chat1erjee for Respondents in Cr!. A.
Nos. 40 and 41 of 1978. B

M. M. Kshatriya and G. S. Chatterjee for Respondents in Cr!. A.
346/77.
J. K. Gupta, B. R. Agarwala and Janendra Lal for the Vice-
Chancellor, Pwijab University in Cr!. A. No. 346/77. c
The Judgment of the Court was delivered by

CHANDRACHUD, C.J.-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 D
at any given time depeni:ls upon the complexion and restraints of poli-
tical conditions. Our task in these appeals is how best to balance
these interests while detennining the scope of Section 438 of the Code
of Criminal Procedure, 1973 (Act No. 2 of 1974).

Section 438 provides for the issuance of direction for the grant E
of bail to a person who apprehends arrest. It reads thus :
"438. (1) When any person has reason to believe that
he may be arrested on an accusation of having connnitted a
non-bailable offence, he may apply to the High Court or the
Court of Session liar a direction under this section; and that F
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-section (1 ) , it maY include such condi-
tions in such directions in the light of the facts of the parti- G
cular case, as it may think fit, including-
( i) a condition that the person shall make himself avail-
able for interrogation by a police officer as and when
required;
(ii) a condition that the person ihall not, directly or in- H
directly, make any inducement, threat or promise to
any person acquainted with the facts of the case so
394 SUPREME COURT REPORTS [1980) 3 S.C.R.

.A 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 with-
out the previous permission of the Court;

B (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,
C 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-
D section ( 1) ."

Criminal Appeal No. 335 of 1975 which is the first of the many
appeals before us, arises out of a judgment dated September 13, 1977
of a Full Bench of the High Court of Punjab and Haryana. The
appellant herein, Shri Gurbaksh Singh Sibbia, was a Min:,.:er of Irri-
E gation 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 and Haryana under Section 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 September 13, 1977 dismissed them.
--i-
The Code of Criminal Procedure, 1898 did not contain any specific
provision corresponding to the present Section 438. Under. the old
G 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 prepon-
derance of view being that it did not bave such power. The need for
extensive amendments to the Code of Criminal Procedure was felt for
a long time and various suggestions were made in different quarters in
B order to make the Code more effective and comprehensive_ The Law
Commission of India, in its 4lst Report dated September 24, 1969
pointed out the necessity of introducing a provision in the Code en-
GURBAKSH SINGH v. PUNJAB (Chandrachud, C.J.) 395

abling the High Court and the Court of Session to grant "anticipatory A
bail". It observed in paragraph 39.9 of its report (Volume I) :
"39 .9. The suggestion for directing the release of a per-
son on bail prior to his arrest (commonly known as "antici-
patory bail") was carefully 'considered by us. Though there
is a conflict of judicial opinion about the power of a Court B
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, c
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
D
justification to require him first to submit to custody, remain
in prison for some days and then apply for bail.
We recommend the acceptance of this suggestion. We
are further of the view that this special power should be
conferred only oo the High Court and the Court of Session,
and that the order should take effect at the time of arrest or E
thereafter.
In order to settle the details of this suggestion, the
following draft of a. new section is placed for consideration :
"497A. (1) When any person has a reasonable
F
apprehension that he would 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. That Court may, in its discretion, direct
that in the event of his arrest, he shall be ieleazd on
bail. G
( 2) A Magistrate taking cognizance of an offence
against that person shall, while taking steps under section
204 ( 1), either issue summons or a bailable warrant as indi-
cated in the direction of the Court under sub-section (1).
(3) if any person in respect of whom such a direc- D
tion is made is arrested without warrant by an officer in
charge of a police station on an accusation of having com-
396 SUPREME COURT REPORTS [1980] 3 S.C.R.

A mitted that offence, and is prepared either at the time of
arrest or at any time while in the custody of such officer '(
to give bail, such person shall be released on bail."
We considered carefully the question of laying down in
the statute certain conditions under which alone anticipatory
• ~il could be granted. But we found that it may not be prac-
ticable to exhaustively ennmerate those conditions; and more-
over, the laying down of such conditions may be construed
as prejndging (partially at any rate) the whole case. Hence
we would leave it to the discretion of thei court and prefer
not to fetter such discretion in the. statutory provision! itself.
Superior Courts will, undoubtedly, exercise their discretion
properly, and not make any c':Jservations in the order grant-
ing antidpatorY bail which will have a tendency to prejudice
the fair trial of the accused."
The suggestion made by the Law Commission was, in principle,
D accepted by the Central Government which introduced Olanse 447 in
the Draft Bill of the Code of Criminal Procedure, 1970 with a view to
conferring an express power on the High Court and the C<>urt of
Session to grant anticipatory bail. That Clause read thus :
"447. (1) When any person has reason to believe that
he would 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 Conrt may, if it thinks fit, direct that in the event of
such arrest, he shall be released on bail.
(2) If such person is thereafter arrested without warrant
F 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 Magistrate1 takingj cognizance ~
such offence decides that a warrant should issue in the first
G instance against thau person, he shall issue a baiiablel war-
rant in conformity with the direction of the Conrt under sub-
section (1) ."
The Law Commission, in paragraph 31 of its 48th Report (1972),
made the following comments on the aforesaid Clause.
II "31. The Bill introduces a provision for the grant of an-
ticipatory bail. This is substantially in accordance with the
recommendation made by the previous CQ!llIIlission. We
GURBAKSH SINGH v. PUNJAB (Chandrachud, C.J.) 397

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 unscru-
pulous 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 c
interim order as well as of the final orders will be given to
the Supedntendent of Police forthwith.''
Clause 44 7 of the Draft Bill of 1970 was enacted with certain modi-
fications and became Section 438 of the Code of Criminal Procedure,
1973 which we have extracted at the outset of this judgment. ))
The facility which Section 438 affords is generally referred to as
'anticipatory bail', an expression which was used by the Law Com-
mission in its 41st report. Neither the section nor its marginal note
so describes it but, the expression 'anticipatory bail' is a convenient
mode of conveying that it is possible to apply for bail in anticipation
of arrest. Any order of bail can, of cour~e, be effective only from
the time of arrest because, to grant bail, as stated in Wharton's Law
Lexicon, is to 'set at liberty a person arrested or imprisoned, on secu-
rity being taken for his appearance'. Thus, bail is basically release
from restraint, more particularly, release from the custody of the police.
The act of arrest directly affects freedom of movement of the person
arrested by the police, and speaking generally, an order of bail gi<ves
back to the accused that freedom on condition that he will appear to
.l. take his trial. Personal recognisance, suretyship bonds and such other
modalities are the means by which an assurance is secured from the ac-
cused that though he has been released on bail, he will present himself
at the trial of offence or offences of which he is charged and for which G
he was arrested. 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 police,
the latter is granted in anticipation of arrest and is therefore effecti<ve
at the very moment of arrest. Police custody is an inevitable con-
comitant of arrest for non-bailable offences. An order of anticipatory JI
bail constitutes, so to say, an insurance agains~ police custody follaw-
ing upon arrest for offence or offences in respect of which the order is
398 SUPREME COURT REPORTS [1980] 3 S.C.R.

A issued. In other words, unlike a post-arrest order of bail, it is a pre-
arrest legal process which directs that if the person in whose favour '~
it i~ issued is thereafter arrested on the accusation in respect of which
the direction is issued, he shall be released on bail. Section 46 (1) of
the Code of Criminal Procedure which deals with how arrests are to
be made, provides that in making the arrest, the police officer or other
B person making the arrest "shall actually touch or confine the body of
the person to be arr_ested," unless there be a submission to the custody
by word or action". A direction under section 438 is intended to con-
fer conditional immunity from this 'touch' or confinement.
No one can accuse the police of possessing a healing touch nor in-
c deed does anyone have misgivings in regard to constraints consequent
upon confinement in police custody. But, society has come to accept
and acquiesce in all that follows upon a police arrest with a certain
amount of sang-froid, in so far as the o~dinary rut of criminal investic
gation is conc~rned. It is the normal day-to-day business of the police
to investigate into charges brought before them and, broadly and gen-
D erally, they have nothing to gain, not favours at any rate, by subjectmg
ordinary criminals to needless harassment. But the crimes, the cri-
minals and even the complainants can occasionally possess extra-ordi-
nary features. When the even flow of life becomes turbid, the police
can "be called upon to inquire into charges arising out of political an-
tagonism. The powerful processes of criminal law can then be perver-
.E
ted for achieving extraneous ends. Attendant upon such investigations,
when the police are not free agents within their sphere of duty, is a
great amount of inconvenience, 11arassment and humiliation. That can
even take the form of the parading of a respectable person in hand-
cuffs, apparently on way to a court of justice. The fonl deed is dooe
F when an adversary is exposed to social ridicule and obloquy, no matter
when and whether a conviction is secured or is at all possible. It is
in order to meet such situations, though not limited to these contingen-
cies, that the power to grant anticipatory bail was introduced into the
Code of 1973.
G Are we right in saying that the power conferred by section 438
to grant anticipatory bail is "not limited to these contingencies"? ,In
fact that is one of the main points of controversy between the parties.
Whereas it is argued by Shri M. C. Bhandare, Shri 0. P. Sharma and
the other learned counsel who appear for the appellants that the power
to grant anticipatory bail ought to be left to the discretion of the court
H concerned, depending on the facts and circumstances of each particufar
case, it is argued by th~ learned Additional Solicitor Genera1 on be-
half of the State Government that the grant of anticipatory bail shonld
GURBAKSI! SINGH v. PUNJAB (Chandrachud, C.J.) 399

at least be conditional upon the applicant showing that he is likely to A
be arrested for an ulterior motive, that is to say, that the proposed
charge or charges are evidently baseless and are actuated by ma/a: fide~
It is argued th~t anticipatory bail is an extra-ordinary remedy and
therefore, whenever it appears that the proposed accusations are prim!i.
facie plausible, the applicant should be left to the ordinary remedy of
B
applying for bail under Section 437 or Section 439, Criminal Proce-
dure Code, after he is arrested.
Shri V. Ill. Tarkunde, appearing on behalf of some of the appel-
lants, while supporting the contentions of the other appellants, said
that since the denial of bail amounts to deprivatio'n of personal
liberty, court should lean against the imposition of unnecessary c
restrictions on the scope of .Section 438, when no snch restrictions
are imposed by the legislature in the terms of that Section. The
learned counsel added a new dimension to the argument by invok-
ing Article 21 of the Constitution. He urged that Section 438 is a
procedural rorovision which is concerned with the personal liberty
of an individual who has not been convicted of the offence in respect D
of which he seeks bail and who must therefore be presumed to be
innocent. The volidity of that section must accordingly be examined
by the test of fairness and reasonableness which is implicit in Article
21. If the Icgislnture itself were to impose an unreasonable 'restric-
tion on the grant of anticipatory bail, such a restriction wuld have
been struck down as being violative of Article 21. Thereiore, while E
determining the scope of Section 438, the court should not impose
any unfair or U'nreasonable limitation on the individual's right to
obtaiu an order of anticipatory bail. Imposition of an unfair or
unreasonable limitation, accordi·ng To the learned counsel, \'iould bC
violative of Article 21, irrespective of whether it is imposed by legis-
F
lation or by iudicial decision.
The Full Bench of the Punjab and Haryana High Court rejected
·the appellants' applications for bail after summarising, what according
to it i1s the true legal position, thus:
(I) The power under Section 43 8, Criminal Procedure
Code, is of an extra-ordinary character and must be
G
exercised sparingly in exceptional cases only;
(2) Neither Section 438 nor any other provision of the
Code authorises the grant of blanket anticipatory bail
for offences not yet committed or with regard to
accusations not so far levelled. H
(3) The said power is not unguided or uncanalised but
all the limitations imposed in the preceding Section
400 SUPREME COURT REPORTS [1980] 3 S.C.R.

A 437, are implicit therein and must be read into Section
438.
( 4) In addition to the limitations mentioned in Section
43 7, the petitioner must make out a special case for
the exercise of the. power to grant anticipatory bail.
B ( 5) Where a legitimate case for the remand of the offender
to the police custody nnder Section 167 (2) can be
made out by the investigating agency or a reasonable
claim to secure incriminating material from informa-
tion likely to be received from the offender under
Section 27 of the Evidence Act can be made out, the
c ·-~.
power under Section 438 should not be ex_~rcised.
(6) The discretion under Section 438 cannot be exercised
with regard to offences punishable with death or im-
prisonment for life unless the court at that very stage
is satisfied that such a charge appears to be false or
D groundless.
(7) The larger interest of the public and State demand
that in serious cases like economic offences involv-
ing blatant corruption at the higher rungs of the exe-
cutive and political power, the discretion under Sec-
tion 438 of the Code should not be exercised; and
E
(8) Mere general allegation of ma/a fides in the petition
are inadequate. The court must be satisfied on mate-
rials before it that the allegations of mala fides are
substantial and the accusation appears to be false and
groundless.
F It was urged before the Full Bench that the appellants were men of
substance ar;d position who were hardly likely to abscond and wonld
be prepared willingly to face trial. This argument was rejected with the
observation that to accord differential treatment to thei appellants on
account of their status will amount to negation of the concept of equality
before the law and that it could hardly be contended that every man
G of status, who was intended to be charged with serious crimes, includ-
ing the one under Section 409 which was punishable with life imprison-
ment, "was entitled to knock at the door _of the court for anticipatory
bail". The possession of high status, according to the Full Bench, is not
only an irrelevant consideration for granting anticipatory bail but is,
e if anything, an aggravating circumstance.
We find ourselves unable to accept, in their totality, the submissions
of the learned Additional Solicitor General or the constraints which the
GURBAKSH SINGH v. PUNJAB (Chandrachud, C.J.) 401

Full Bench of the High Court has engrafted on the power conferred by
Section 438. Clause (I) of Section 438 is couched in terms, broad
and unqualified. By any known canon of construction, words of width
and amplitude ought not generally to be cut down so as to read into
the language of the statute restraints and conditions which the legislature
itself did not think it proper or necessary to impose. This is especially
true when the statutory provisions which falls for consideration is
designed to secure a valuable right like the right to personal freedom
•
and involves the application of a presumption as salutary and deep-
grained in our Criminal Jurisprudence as the presumption of innocence.
Though the right to apply for anticipatory bail was conferred for the
.J.. first time by Section 438, while enacting that provision the legislature
was not writing on a clean slate in the sense of taking an unprecedented
c
step, in so far as the right to apply for bail is concerned. It had be-
fore it two cognate provisions of the Code : Section 437 which deals
with the power of courts other than the Court of Session and the High
Court to grant bail in non-bailable cases and Section 439 which deals
with the "special powers" of the High Court and the Court of Session D
regarding bail. The whole of Section 437 is riddled and hedged in by
restrictions on the power of certain courts to grant bail. That section
reads thus :
"437. When bail may be taken in case of non-bailable
offence. ( 1) When any person accused of or suspected of E
the commission of any non-bailable offence is arrested or de-
tained without warrant by an officer in charge of a police
station or appears or is brought before a Court other than the
High ('.,curt or Court of Session, he may be released on bail,
but he shall not be so released if there appear reasonable
grounds for believing that he has been guilty of an offence II'
punishable with death or imprisonment for life :
Provided that the Court may direct that any person under
the age of sixteen years or any woman or any sick or infirm
person accused of such an offence be released on bail:
Provided further that the mere fact that an accused per- G
son may be required for being identified by wi1nesses during
investigation shall not be sufficient ground for refusing to
grant bail if he is otherwise entitled to be released on bail and
gives an undertaking that he shall comply with snch directions
as may be given by the Court.
B
(2) If it appears to such officer or Court at any
stage of the investigation, inquiry or trial as the case may be,
402 SUPREME COURT REPORTS [1980] 3 S.C.R.

A that there are not reasonabl!' grounds for believing that the
accused has committed a non-bailable offence, but that there
are sufficient grounds for further inquiry into his guilt, the
accused shall, pending such inquiry, be released on bail, or,
at the discretion of such officer or Court, on the execution
by him of a bond without sureties for his appearance as here-
B inafter provided.
(3) When a person accused or suspected of the com-
mission of an offence punishable with imprisonment which
may extend to seven years or more or of an offence under
Chapter VI, Chapter XVI or Chapter XVII of the Indian
c Penal Code or abetment of, or conspiracy or attempt to
commit, any such offence, is released on bail under sub-
section (1), the Court may impose any condition which the
Court considers necessary-
(a) in order to ensure that such person shall attend in
D accordance with the conditions of the bond executed under
this Chapter, or I

'
(b) in order to ensure that such person shall not com-
mit an offence similar to the offence of which he 1s accused
or of the commission of which he is suspected, or
( c) otherwise in the interests of ju~icc.
E
( 4) An officer or a .Court releasing any person on bail
under sub-section (1) or sub-section (2), shall record in
writing his or its reasons for so doing.
(5) Any Court which has released a person on bail
under sub-section (1) or sub-section (2), niay, if it con-
F
siders it necessary so to do, direct that such per<Jn be
arrested and commit him to custody.
(6) If, in any case triable by a Magistrate, the trial of
a person accused of any non-bailable offence is not conclud-
ed within a period of sixty days from the first date fiJ>cd .for
G taking evidence in the case, such person shall, if he is in
custody during the whole of the said period, be released on
bail to the satisfaction of the Magistrate, unless for reasons
to be recorded in writing, the Magistrate otherwise directs.
(7) If, at any time after the conclusion of the trial of a
B person accused of an non-bailable offence and before judg-
ment is delivered, the Court isl of opinion that there are
reasonable grounds for believing that the accused is not
GURBAKSH SINGH v. PUNJAB (Chandrachud, C.1.) 403

guilty of any such offence, it shall release the accused, if A
' he is in custody, on the execution by him of a bond without
sureties for his appearance to hear judgment delivered."
Section 439 ( 1) (a) incorporates the conditions mentioned in
Section 437 (3) if the offence in respect of which the bail is sought
is of the nature specified in that sub-section. Section 439 reads thus : B
"439. Special powers of High Court or Court of Session
regarding bail. (1) A High Court or Court of Session
n1ay direct- ·
(a) That auy person accused of an offence and in
custody be released on bail, and if the offence is of the
nature specified in sub-section (3) of section 437, may c
impose any condition which it considers necessary for the
purposes· mentioned in that sub-section;
(b) that any condition imposed by a Magistrate when
releasing any person on bail be set aside or modified:
Provided that the High Court or the Court of Session ))
shall, before granting bail to a person who is accused of an
offence which is triable exclusively by the Court of Session
ur which, though not so triable, is punisht~ble with imprison-
ment for life, give notice of the application for bail to the
Public Prosecutor unless it is, for reasons to be recorded in
writing, of opinion that it is not practicable to give notice. E
(2) A High Court or Court of Session may direct that
any person who has been released on bail under this
Chapter be arrested and commit him to custody."
The provisions of Section 437 ·and 439 furnished a convenient
model for the legislature to copy while enacting Section 438. If it F
has not done so and has departed from a pattern which could easily
be adopted with the necessary modifications, it would be wro'ng to
refu5e to give to the departure its full effect by assuming that it was
not intended to serve any particular or specific purpose. The depar-
ture, in our opinion, was made advisedly and purposefully : Advi-
sedly, at least in part, because of the 41st Report of the Law Com- G
mission which, while pointing out the necessity of introducing a pro-
vision tn the Code enabling the High Court and the Court of Session
to grant anticipatory bail, said in paragraph 29 .9 that it had "consi-
dered" carefully the question of laying down in the statute certain
conditions under which alone anticipatory bail could be granted"
but had come to the conclusion that the question of granting such H
bail should b" left "to the discretion of the court" and ought not to
6-289 SCl/80
404 SUPREME COURT REPORTS [1980) 3 S.C.R.

A be fettered by the statutory provision itself, since the discretion was
being conferred npon superior courts which were expected to exercise
it judicially. The legislature conferred a wide discretion on the
High Court and the Court of Session to grant anticipatory bail because
it evidehtly felt, firstly, that it would be difficult to enumerate the
conditions under which anticipatory bail should or should not be
8 granted and secondly, because the intention was to allow the higher
courts i'n the echelon a somewhat free hand in the grant of relief in
the nature of anticipatory bail. That is why, departing from the terms
of Sections 437 and 439, Section 438(1) uses the language that the
High Court or the Court of Session "may, if it thinks fit" direct that
the applicant be released on bail. Sub-sedan (2) of Section 438 is
c a further and clearer manifestation of the same legislative intent to
confer a wide discretionary power to gra'nt anticipatory bail. It pro-
vides that the High Court or the Court of Session, while issuing a
direction for the grant of anticipatory bail, "may include such con-
ditions in such directions in the light of the facts of the particular
D case, as it may think fit", including the conditions which are set out
in clauses (i) to (iv) of sub-section (2). The proof of :egislative
intent can best be found in the language which the legislature uses.
Ambiguities can undoubtedly be resolved by resort to extraneous aids
but words, as wide and explicit as have been used in Section 438,
must be given their full effect, especially when to refuse to do so
E will result in undue impairement of the freedom of the ihdividual and
the presumption of innocence. It has to be borne in mind that anti-
cipatory bail is sought when there is a mere apprehension of arrest
on the accusation that the applicant has committed a no'n-bailable
offence. A person who has yet to lose his freedom by being arrested
asks for freedom in the event of arrest. That is the stage at which
it is imperative to protect his freedom, in so far as one may, and to
give full play to the presumption that he is innocent. In fact, the
stage at which anticipatory bail is geherally sought brings about its
striking dissimilarity with the situation in which a person who is arrest-
ed for the commission of a non-bailable offence asks for bail. In the
latter situation, adequate data is available to the Court, or can be
G called for hy it, in the light of which it can grant or refuse relief and
while grc:atihg it, modify it by the imposition of all or any of the
conditio'ns mentioned in Section 437.
This is not to say that anticipatory bail, if granted, must be
granted without the imposition of any conditions. That will be plainly
H contrary to the very terms of Section 438. Though sub-section (1)
of that sectio'n says that the Court "may, if it thinks fit" issue the
necessary direction for bail, sub-section (2) confers on the Court the
GURBAKSH SJNGH v. PUNJAB (Chandrachud, C.J.) 405

power to include such condi'.ions in the direction as it may think fit A
) in the light of the facts of the particular case, including the conditions
mcntionoed in clauses (i) to (iv) of that sub-section. The contro-
versy therefore is not whether 'he Court has the power to impose
conditions while granting anticipatory bail. It clearly and expressly
has that power. The true question is whether by a process of cons-
B
truction, the amp1itude of judicial discretion which is given to the High
Court and the Court of Session, to impose such conditions as they
may thi'nk fit while granting anticipatory bail, should be cut down
by reading into the statute conditions which are not to be found
therein, like those evolved by the High Court or canvassed by the
learned Additional Solicitor General. Our answer, clearly and 0
emphatically, is in the negative. The High Court and the Court of
Session to whom the application for anticipatory bail is made ought
to be left free in the exercise of their judicial discretion to grant bail
if they consider it fit so to do on the particular facts and circumstances
of tli.-. c':'.lcp and on such conditions as th·~ case rnav warrant. Simi-
larly, they must be left free to refuse bail if the circumstances of the D
case so warran', on consideratio'ns similar to those mentioned in s~c
tion 437 or which are generally considered to be relevant under Sec-
tion 439 of the Code.
Generalisations on matters which rest on discretion and the attempt
to discover formulae of universal application whe'n facts are bound
to differ from case to case frustrate the very purpose of confer- E
ring discretion. No two cases are alike on facts and therefore,
Courts have to be allowed a little free play in the joints if the con•
ferment of discretionary power is to be meaningful. There is no risk
involved in entrusting a wide discretion to the Court of Session and
the High Court in granting anticipatory bail because, firstly, these
F
are higher courts manned by experienced persons, secondly,
their orders are not final but are open to appellate or r'visional scru-
tiny and above all b'cause, discretion has always to be exercised by
conrts judicially and not accordiM to whim, caprice or fancy, On the
other hand, there is a risk in foreclosing categories of cases in which
anticipatory bail may be allowed because life throws up unforeseen G
possibillities· and offers new challenges. Judicial discretion has to be
free enough to be able to take these possibilities in its stride and to
meet these challenges. Whi1e dealing with the necessity for preserv-
ing judicial discretion unhampered by rules of general application,
Earl Loreburn L. C. said in Hyman and Anr. v. Rose(') :
"T desire in the first instance to point out that the dis- H
cretion given by the section is very wide ........ Now it
(!) [19121 A. c. 623.
406 SUPREME COURT REPORTS [I 9?0J 3 s.c.R.

,A seems to me that when the Act is so express to provide a
wide discretion, ..... .it is not advisable to lay down any
rigid rules for guiding that discretion. I do not doubt that
the rules enunciated by the Master of the Rolls in the
present case are useful maxims in general, and that in gene-
ral they reflect the point of view from which judges would
B
regard an application for relief. But I think it ought to
be distinctly understood that there may be cases in which
any or all of them may be disregarded. If it were other-
wise, the free discretion given by the statute would be fet-
tered by limitations which have nowhere been enacted.
c It is one thing to decide what is the trnc meaning of the
language contained in an Act of Parliament. It is quite a
different thing to place conditions upon a free discretion
entrusted by statute to the Court where the conditions are
not based upon statutory enactment at all. It is not safe,
I think, to say tha:t the Court must and will always insist
D upon certain things whe'n the Act does not require them,
and the facts of some unforseen case may make the Cour:
wish it had kept a free hand."

Judges have to decide cases as they come before them, mindful
of the need to keep passions and prejudices out of their decisions.
E And it will be strange if, by employing judicial artifices and techni-
ques, we cut down the discretion so wisely conferred upon the Courts,
by devising a formula which will confine th•e power to grant anticipa-
tory 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 imper-
F fect awareness of the needs of new situations. Life is never static
and every situation has to be assessed in th;, context of emerging con-
cerns as and when it arises. Therefore, even if we were to frame a
'Code for the garnt of anticipatory bail', which really is the business
of the legislature, it can at best furnish broad guide-lines and cannot l
compel blind adherence. In which case to grant bail and in which
G to refuse it is, rn 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 thmks
fit". The concern of the courts generally is to preserve their dis-
H
cretion without meaning to abuse it. It will be strange if we exhibit
concern to stultify the discretion conferred upon the Courts by law.
GURBAKSH SINGH v. PUNJAB (Chandrachud, C.J.) 407

A close look at some of the rules in the eight-point code formu- A
lated by he High Court will show how difficult it is to apply them in
practice. The seventh proposition says :
"The larger interest of the public and State demand
that in' serious cases like economic offences involving bla-
tant corruption at the higher rungs of the executive and B
political power, the discretion under Section 438 of the
Code should not be exercised."
How can the Court, even if it had a third eye, assess the blatant-
ness of corruption at the stage of anticipatory bail ? And will it be
correct to say that blatantness of the accusation will suffice for reject c
ing bail, even if the applicant's conduct is painted in colours too
lurid to be true? The ·~ighth proposition rule framed by the High
Court says :

"Mere general allegations of ma/a {ides in the petition
are inadequate. The court must be satisfied on materials D
before it that the allegations of ma/a fide are substantial
and the accusation appears to be false and groundless."

Does fais rule mean, and that is the argument of the learned
Additional Solicitor-General, that the anticipatory bail cannot be
granted unless it is alleged (and naturally, also shown, because mere E
aliegation 's ne.vcr enough) that the proposed accusations are mala
fide ? It is understandable that if mala {ides are shown anticipatory
bail should be granted in the generality of cases. But it i« not easy to
appreciate why an application for anticipatory bail must be rejected
unless the accusation is shown to be mala fide. This, truly, is the
risk involwd in framing rules by judicial construction. Discretion, F
therefore, ought to be permitted to remain in the domain of discre-
tion, to be exercised objectively and open to correction by the higher
courts. The safety of discretionary power lies in this twin protection
which provides a safeguard against its abuse.
According to the sixth proposition framed by the High Court, G
the discretion under Section 438 cannot be exercised in regard to
offences punishable with death or impriionment for life uuless, the
court at the stage of granting anticipatory bail, is satisfied that such a
charge appears to be false or groundless. Now, Section 438 confers
on the High Court and the Court of Session the power to grant antici-
patory bail if the applicant has reason to believe that he may be arrest- H
ed on an accusation of having committed "a uon-bailable offence". We
see no warrant for reading into this provision the conditions subject to
408 SUPREME COURT REPORTS . (1980] 3 S.C.R.

A which bail can be granted under Section 437 (1) of the Code. That
section, while conferring the power to grant bail in cases of non-
bailable offences, provides by way of an exception that a person accus-
ed or suspected of the commission of a non-bailable offence "shall not
be so released" if there appear to be reasonable grounds for believing
that he has been guilty of an offence punishable with death or imprison-
B ment for life. If it was intended that lhe e)fception contained in
Section 437(1) should govern the grant of relief under Section 438(1),
nothing would have been easier for the legislature than to introduce
into the latter section a similar provision. We have already pointed
out the basic distinction between these two sections. Section 437
applies only after a person, who is alleged to have committed a non-
c bailable offence, is arrested or detained without warrant or appears or
is brought before a court. Section 438 applies before the arrest is
made and, in fact, one pf the pre-conditions of its application is that
the person, who applies for relief under it, must be able to show that
he has reason to believe that "he may be arrested'', which plainly means
that i)e is not yet arrested. The nexus which this distinction bears
D
with the grant or refusal of bail is that in cases falling under Section
43 7, there is some concrete data on the basis of which it is possible
to show that there appear to be reasonable grounds for believing that
the applicant has been guilty of an offence punishable with death or
imprisonment for life. In cases falling under Section 438 that stage
is still to arrive and, in the generality of cases thereunder, it would be
premature and indeed difficult to predicate that there are or are not
reasonable grounds for so believing. The foundation pf the belief
spo'ken of in Section 437 ( 1), by reason of which the court cannot
release the applicant on bail is, normally, the credibility of the allega-
tions contained in the First Information Report. In the majority
F of cases falling under Section 438, that data will be lacking for form-
ing the requisite belief. If at all the conditions mentioned in Section
437 are to be read into the provisions of Section 438, the transplanta-
tion shall have to be done without amputation. That is to say, on the
reasoning of the High Court, Section 438(1) 5hall have to be read as
containing the clause that the applicant "shall not" be released on bail
G "if there appear reasonable grounds for believing that he has been guilty
of an offence punishable with death or imprisonment for life". In this
process one shall have overlooked that whereas, the power under
Section 43 8 ( 1) can be exercised if the High Court or the Court of
Session "thinks fits to do so, Section 437(1) does not confer the power
to grant bail in the same wide terms. The expression "if it thinks
H fit", which occurs in Section 438 (1) in relation to the power of tht1
High Court or the Court of Session, is conspicuously absent in Section
437(1). We see no valid reason for re-writing Section 438 with a
GURBAKSH SINGH v. PUNJAB (Chandrachud, C.J.) 409

view, not to expanding the scope and ambit of the discretion conferred A
f on the High Court and the Court of Session but, for the purpose of
limiting it. Accordingly, we are unable to endorse the view of the
High Court that ancipatory bail cannot be granted in respect of offences
like criminal breach of trust for the mere reason that the punishment
provided therefor is imprisc;mment for life. Circumstances may broad-
ly justify the grant of baH in such cases too, though of course, the Court
is free to refuse anticipatory bail in any case if there is material before
it .iustifying such refusal.

A great deal has been said by the High Court on the fifth proposi-
tion fn,rned by it, according to which, inter alia, the power under
Section 438 should not be exercised if the investigating agency can
c
make a reasonable claim that it can secure incriminating material
from information likely to be received from the offender under Sec-
tion 27 of the Evidence Act. Accordmg to the High Court, it is
the right and the duty of the police to investigate into offences brought
to their notice and therefore, courts should be careful not to exercise D
their powers in a manner which is calculated to cause interference
therewith. It is true that the functions of the Judic;ary and the
police are in a sense complementary and no~ overlapping. And, as.
observed by the Privy Council in King Emperor v. Khwaia Nasir
Alzmed : ('}
E
"Just as it is essential that every one accused of a crime
should have free access ID a court of justice so that he
may be duly acquitted if found not guilty of the offence
with which he is chareed, so it is of the utmost importance
that the judiciary should not interfere with the police in
matters which are within their province and into which the
law imposes on them the duty of inquiry. The functions
of 'he Judiciary and the Police are complementary, not
overlapping, and the combination of the individual liberty
• with a due observance of law and order is only to be
obtained by leaving each to exercise it& own function: .... "
G
But, these remarks, may it be remembered, were made by the
Privy Council while rejecting the view of the Lahore High Court that
it had inherent jurisdiction under the old Section 561A, Criminal
Procedure Code, to quash all proceedings taken by the police in
pursuance of two First Information Reports made to them. An order B
quashing such proceedings puts an end to the proceedings with the
(1) 71 Indian Appeals 203.
410 SUPREME COURT REPORTS [1980] 3 S.C.R.

A inevitable result that all iuvestigation into the accusation comes to
a halt Therefore, it was held that the Court cannot, in the exercise
of its inherent powers, virtually direct that the police shall not inevsti-
gate into the charges contained in the F .LR. We are concerned here
with a situation of an altogether different kind. An order of anti-
cipatory bail does not in a_ny way, directly or indirectly, take away
B
from the police their right to inestigate into charges made or to be
_!!IJlde against the person released on bail. In fact, two of the usual
conditions incorporated in a direction issued under Section 438 (1)
are those recommended in Sub-section (2) (i) and (ii) which require
the applicant to co-operate with the police and to assure that he shall
c not tamper with the witnesses during a:nd after the investigation.
While granting relief under Section 438 (1), appropriate conditions
can be imposed under Section 438 (2) so as to ensure an uninter-
rupted investigation. One of such conditions 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
D liable to be taken in police custody for facilitating_ the discovery.
Besides, if and when the occasion a:rises, it may be possible for the
prosecution to claim the benefit of Section 27 of the Evidence Act
in regard to a discovery of facts made in pursuance of information
~upplied by a person released on bail by invoking the principle stated
by this Court in State of U.P. v. Deoma11 Upadhyaya(') to the effect
E that when a person not in custody approaches a police officer investigat-
ing an offence and offers to give information leading to the discovery
of a fact, having a bea:ring on the charge which may be made against
him, he niay appropriately be deemed to have surrendered himself
to the police. The broad foundation of this rule is stated to be that
F Section 46 of the Code of Criminal Procedure does not contemplate
any formality before a person can be said to be taken in custody :
submission to the custody by word or action by a person is sufficient.
For similar reasons, we are unable to agree that a:nticipatory bail
should be refused if a legitimate case for the remand of the offender
to the police custody under Section 167 (2) of the Code is made out
G by the investigating agency.

It is unnecessary to consider the third propos1t1on of the High
Court in any great details because we have already indicated that there
is no justification for reading into Section 438 the limitations mentioned
H in Section 437. The High Court says that such limitations are implicit
in Section 438 but, with respect, no such implications arise or can be
(1) [1961]· I S. C.R. 14 at page 26.
GURBAKSH SINGH v. PUNJAB ( Chandrachud, C.J.) 411

A
read into that seqtion. The planitude of the section must be given its
full play.

The High Court says in its fourth proposition that in addition to
the limitations mentioned in Section 437, the petitioner must make
out a "special case" for the exercise of the power to grant anticipatory B
bail. This, virtually, reduces the salutary power conferred by Section
438 to a dead letter. In its anxiety, otherwise just, to show that
the power conferred by Section 438 is not "unguided or uncanalised",
the High Court has subjected that power to a restraint which will
f have the effect of making the power utterly unguided. To say that
c
the applicant must make out a "special case" for the exercise of the
power to grant anticipatory bail is really to say nothing. The appli-
cant has undoubtedly to make out a case for the grant of anticipatory
bail. llut one cannot go further and say that he must make out a
"special case". We do not see why the provisions of Section 438,
should be suspected as containing somethiqg volatile or incendiary,
D
which needs to be handled with th_e greatest care and caution im&gin-
able. A wise exercise of judicial power inevitably takes care of the
evil consequences which are likely to flow out of its intemperate use.
Every '<ind 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 w1 th due care and caution. In fact, an awareness of the context E
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.

F
By proposition No. 1 the High Court says that the power con-
ferred by Section 438 is "of an extraordinary character and must be
exercised sparingly in exceptional cases only". It may perhaps be
right to describe the power as of an extraordinary charac!er because
• ordinarily the bail is applied for under Section 437 or Section 439.
These Sections deal with the power to grant or refuse bail to a person G
who is in the custody of the police and that is the ordinary situation
in which bail is generally applied for. But this does not justify the
conclusion that the power must be exercised in exceptional cases
only, because it is of an extra-ordinary character. We will really be
saying once too often that all discretion has to be exercised with care
and circumspection depending on circumstances justifying its exercise. B
It is unnecessary to travel beyond it and subject the wide power con-
ferred by the legislature to a rigorous code of self-imposed Jimitatio'ns.
412 SUPREME COURT REPORTS [1980] 3 S.C.R.

It remains only to consider the second proposition formulated by
the High Court, which is the only one with which we arc disposed to
agree but we will say more about it a little later.

It will be appropriate at this stage to refer to a decision of this
Court in Balchand Jain v. State' of Madhya Pradesh(') on which the
B High Conrt has leaned heavily in formulating its propositions. One
of us, Bhagwati J. who spoke for himself and A. C. Gupta, J. observ-
ed in that case that :

"the power of granting 'anticipatory bail' is somewhat
extraordinary in character and it is only in exceptional
c cases where it appears that a person might be falsely
implicated, or a frivolous case might be launched against
him, or "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" that such power
is to be exercised."
D
Fazal Ali, J. who delivered a separate judgment of concurrence
also observed that :

"an order for anticipatory bail is an extraordinary
remedy available in special cases".
E and proceeded to say :

"As Sectoin 438 immediately follows s. 437 which is the
main provision for bail in respect of non-bailable offences, it
is manifest that the conditions imposed by s. 437 (1) are
implicitly contained in s. 438 of the Code. Otherwise the
F result would be that a person who is accused of murder can
get away under s. 438 by obtaining an order for anticipatory
bail without the neq"sity of proving that there were reaso-
nable grounds for believing that he was not guilty of offence
punishable with death or imprisonment for life. Such a course •
would render the provisions of s. 437 nugatory and will
G give a free licence to the accused persons charged with non-
bailable offences to get easy bail by approaching the Court
under s. 438 and by-passing s. 437 of the Code. This, we
feel, could never have been the intention of the Legislatnre.
Section 438 does not contain unguided or unca'.nalised
powers to pass an order for anticipatory bail, but such an
ii
order being of an exceptional type can only be passed if,
(!) [1977] 2 S. C. R. 52.
GURBAKSH SINGH v. PUNJAB (Chandrachud, C.J.) 413

apurt from the conditians mentioned in s. 43 7, there is a A
special case made out for passing the order. The words
"for a direction under this section" and "Court may, if it
thinks fit, direct" clearly show that· the Court has to be
guided by a large number of considerations inc:uding those
montioned i'n s. 437 of the Code."
B
While stating his conclusions Fazal Ali, J. reiterated in conclusion no.3
that "Section 43 8 of the Code is an extraordinary remedy and should
b<e. resorted to only in special cases."
We hold the decision in Balchand Jain (supra) in great respect but
11 is necessary to remember that the question as regards the int•;rpreta-
tion o( Section 438 did not at all arise in that case. Fazal Ali, J. has c
staled in parngraph 3 of his judgment that ·'the only point" which arose
for c-0nsideration before the Court was whether the provisions of Section
438 relating to anticipatory bail stand overruled and repealed by virtue
of Rule 184 of the Defence and Internal Security of Ind;a Rules, ]071
or whether both the provisions can, by the rule of harmonious inter-
pretation, exist side by side. Bhagwati, J. has also stated in his judgment, D
after adverting to Section 438 that Rule 184 is what the Court was
concerned with in the appeal. The observations made in Balchand Jain
(supra) 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 conclud-
ing the points which arise directly for our consideration. We agree, with E
respect, that the power conferred by Section 438 is of an extraordinary
character in the sense indicated above, namely, that it is not ordinarily
rosorted to like the power confrrred 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
F
with the observations made in Balchand Jain (supra) in an altogether
different context on an altogether different point.
We find a great deal of substance in Mr. Tarkunde's submission that
since denial of bail amounts to deprivation of personal liberty, the
• Court should lean against the imposition of unnecessary restrictions on
the scope of Section 438. especially when no such restrictions have been G
impcsed by the legislature in the terms of that section. Section 438 is
a procedural provision which is concerned with the personal liberty of
the individual, who is entitled to the benefit of the presumption of inno-
cence since he is not, on the date of his application for anticipatory bail,
convicted of the offence in respect of which he seeks bail. An over-
generous infusion of constraints and conditions which are not to be e
found in Section 438 can make its provisions constitutionally vulnerable>
since the right to personal freedom cannot be made ta depend on com-
414 SUPREME COURT REPOllTS (1980] 3 S.C.R.

pliance with unreasonable restrictions. The beneficient provision con-
tained in Section 438 must be saved, not jettisoned. No doubt can
linger after the decision in Maneka Gandhi(') thaG in order to mcef
the challenge of Article 21 of the Constitution, the procedure establish-
ed by law for depriving a person of his liberty must be fair, just and
reasonable. Section 438, in the form in which i~ is conceived by the
8
legislature, is open to no exception on: thei ground that it prescribes; a
procedure which is unjust or unfair. We, ought, at all costs, to avoid
thrcwmg it open to a Constitutional challenge by reading words in i l
which are not be found therein.

It is not necessary to refer to decisions which deal with the right to
c ordinary bail bec_ause that right does not furnish an exact parallel to
the right to anticipatory bail. It is, however, interesting that as long
back as in 1924 it was held by the High Court of Calcutta in Nagendra
v. King Emperor(') that the object of bail is to secure the attendance ot
the accused at the trial, that the proper test to be applied in the solution
D of the question whether bail should be granted or refused is whether
it is probable that the party will appear to take his trial and that it is
indisputable that bail is not to be withheld as a punishment. In two
other cases which, significantly, are the 'Meerut Conspiracy cases' obser-
vations are to be found regarding the right to bail which doserve a spe-
cial mention. In K. N. Jog/ekar v. Emperor(') it was observed, while
E dealing with Section 498 which corresponds to the present Section 439
of the Code, that it conferred upon the Sessions Judge or the High
Court wide powers to grant bail which were not handicapped by the
restrictions iu the preceding Section 497 which correspond~ to the pre-
sent Section 437. It was observed by the Court that there was'. no
hard and fast rule and no inflexible principle governing the exercise> o~
F the discretion conferred by Section 498 aud that the qnly principle
which was established was that the discretion should be exercised
judiciously. In Emperor v. If. L. Hutchinson(') it was, said that it
was very unwise to make an attemp~ to lay down any particular rules·
which will bind the High Court, having regard to the fact tllat the legis-
lature itself left the discretion of the Court unfettered. According to •
G the High Court, the variety of cases that may arise from time to time
cannot be sa!fely classified and it is dangerous to make an attempt to
classify the cases and to say that in particular classes a bail may be
granted but not iu other classes. It was observed that the principle
to be deduced from the various sectionsi in the Criminal Procedure
(I) (1978] I S. C. C. 248.
H (2) A. LR. 1924 Cal. 476, 479, 480
(3) A. LR. 1931 All. 504 •.
(4) A.LR. 1931 All. 356, 358.
GURBAKSH SINGH v. PUNJAB (Chandrachud, C.J.) 415

Code was that grant of bail is the rule and refusal is the exception. An A
accused person who enjoys freedom is in a much better position to
look after his case and to properly defend himself than if he were
in custody. As a presumably innocent person he is therefore entitled.
to freedom and every opportunity to look after his own case. A
presumably innocent person must have his freedom to enable him
B
to establish his innocence.
Coming nearer home, it was observed by Krishna Iyer, J., in
Gudikanti Narasimhulu v. Public Prosecutor, High Court of AIUlhra
Pradesh(') that "the issue of bail is one of liberty, justice, public safety
' and burden of the public treasury, all of which insist that a developed
f jurisprudence of bail is integral to a socially sensitized judicial process. C
After all, personal liberty of an accused or convict is fundamental, suf-
foring lawful eclipse only in terms of procedure established by ~aw.
The last four words of Article 21 are the life of that human right."
In Gurcharan Singh v. State (Delhi Adm11.) (') it wns observed by
Goswami, J. who spoke for the Court, that "there cannot be an inexo- (}
rable forn:mla in the matter of granting bail. The facts and circums-
tances of each case will govern the exercise of judicial discretion in
granting or cancelling bail."
In American Jurisprudence (2d, Volume 8, page 806, para 39)
it is stated :
E
''Where the granting of bail lies within the discretion of
the c"urt, the granting or denial is regulated, to a large extent,
by the facts and circumstances of each particular case. Since
the object of the detention or imprisonment of the accused is
to secure his appearance and submission to the jurisdiction
and the judgment of the court, the primary inquiry is whether F
a recognizance or bond would effect that end."
l It is thus clear that the question whether to grant bail or not depends
for its answer npon a variety of circumstances, the cumulative effect
of which must enter into the judicial verdict. Any one single circums-
tance cannot be treated as of universal validity or as necessarily justi-
G
fying the grant or refusal of bail.
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 applicant on
hail in the event of his arrest would generally be made. On the other
(I) [1978] 1 s. c. c. 240.
(2) [1978] 1 s. c. c. 118.
416 SUPREME COURT REPORTS [1980) 3 S.C.R.

A hand, if it appears likely, considering the antecedents of the applicant,
that taking advantage of the order of anticipatory bail he will flee from
jnstice, such an order would not be made. But the converse of these
propositions is not necessarily true. That is to say, it cannot be laid
down as an inexorable rule that anticipatory bail cannot be granted
unless the proposed accusation appears to be actuated by mala {ides; and,
B equally, that anticip_atory bail must be granted if there is no fear that
the applicant will abscond. There are several other considerations, too
numerous to enmnerate, the combined effect of which must weigh with
the court while granting or rejecting anticipatory bail. 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 appli-
c cant'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.
The relevance of these considerations was pointed out in The State v.
D Captain Jagjit Singh,(') which, though, was a case under the old Sec-
tion 498 which corresponds to the present Section 439 of the Code. W
is of paramount consideration to remember that the freedom of the indi-
vidual is as necessary for the survival of the society as it is for the
egoistic purposes of the individual. A person seeking anticipatory bail
is still a free man entitled to the presumption of innocence. He is will-
E ing to submit to restraints on his freedom, by the acceptance of condi-
tions which the court may think fit to impose, in consideration of the
assurance that if arrested, he shall be enlarged on bail.
A word of caution may perhaps be necessary in the evaluation ot
the consideration whether the applicant is likely to abscond. There can
be no presumption that the wealthy and the mighty will submit them-
r selves to trial and that the humble and the poor will run away from
· the course of justice, any more than there can be a presumption that the
former are not likely td commit a crime and the latter are more likely
to commit it. In his charge to the grand jury at Salisbury Assizes, 1899
(to which Krishna Iyer, J. has referred in Gudikanti), Lord Russel of
Killowen said :
G
". . . . . ... it was the duty of magistrates to admit accused
persons to bail, wherever practicable, unless there were
strong grounds for supposing that such persons would not
appear to take their trial. Tt w"s not the poorer classes who did
not appear, for their circumstances were such as to tie them
H to the place where they carried on their work. They had
not the golden wings with which to fly fro'm justice."
(ll [1962] 3 S. C. R. 622.
GURBAKSH SINGH v. PUN.TAB (Chaqdrachud, C.l.) 417

This, incidentally, will serve to show how no hard and fast rules can A
be laid down in discretionary matters like the grant or refusal of bail,
whether anticipatory or otherwise. No such rules can be laid down for
the simple reason that a circumstance which, in a given case, turns out
to be conclusive, may have no more than ordinary signification in
} another case.
B
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
jnstice will be better served by trusting these courts to act objectively
c
f and in consonance with principles governing the grant of bail which
are recognised over the years, than by divesting them of their discret on
which the legislature has conferred upon them, by laying down inflexible
rules of general appfication. It is customary, almost chronic, to take a
statute as one finds it on the grounds that. after all "the leg;sJa•11r in
0

its wisdom" has thought it fit to use a particular expression. A conven- D
tion may usefully grow whereby the High Court and the Court of Ses-
sion may be trusted to exercise their discretionary powers in their wis-
dom, especially when the discretion is entrusted to their care by the
legislature in its wisdom. If they err,- they are liable to be corrected.

This should be the end of the matter, bnt it is necessary to clarify E
ii few points which have given rise to certain misgivings.
Section 438(1) of the Code lays down a condition which has to
be satisfied before anticipatory bail can be granted. The applicant mus~
show that he has "reason to believe" that he may be arrested for a
non-bailable offence. The use of the expression "reason to believe" I!'
shows that the belief that the applicant may be so arrested must h1:1
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 a 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 G
a non-bailable offence, must be capable of being examined by the court
objectively, because it is then alone that the court can determine whe-
ther the applicant has reason to believe that he may be so arrested.
Section 438(1 ), therefore, cannot be invoked on the basis of vague
and general allegations, as if to arm oneself in perpetuity against a oos-
sible arrest. Otherwise, the number of ann:ications for a'ntic;natNv bail H
will be as large as, at any rate, the adult populace. Anticipatory bail
is a deYice to secure the individual's liberty; it is neither a passport to
41.8 SUPREME COURT REPORTS (1980) 3 S.C.R.
I
A the commission of crimes nor a shield against any and all kinds of
accusatiqns, likely or unlikely.
I
Secondly, if an application for anticipatory bail is made to the
High Court or the Court of Session it must apply its own mind tO' the
question and decide whether a case has been made out for granting
{'
B such relief. It cannot leave the question for the decision of the Magis-
trate concerned under Section 437 of the Code, as and when an occa-
sion arises. Such a course will defeat the very objec~ of Section 438.
Thirdly, the filing of a First Information Report is not a· condi-
tion precedent to the exercise of the power under Section 438. The
c imminence of a likely arrest founded on a reasonable belief can be
shown to exist even if an F.I.R. is not yet filed.
Fourthly, anticipatory bail can be granted even after an F.I.R. is -
filed, so long as the applicant bas not been. arrested. ,•,.,
Fifthly, the provisions of Section 43 8 cannot be invoked after the
D arrest of the accused. The grant of "anticipatory bail" to an accused
who is under arrest involves a contradiction in terms, in so far a~ the
offence dr offences for which he is arrested, are concerned. 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.
E
We have said that there is one proposition formulated by the High
Court with which we are inclined to agree. That is preposition No. (2).
We agree that a 'blanket order' of anticipatory bail should not gene-
rally be passed. This flows from the very language of the section which,
as discussed above, requires the applicant to show that he has "reason to
F believe" that he may be arrested. A belief can be said to be founded
on reasonable grounds only if there is something tangible to go by on
the basis of which it can be said that the applicant's apprehension that
he may be arrested is genuine. That is why, normally, a direction should
not issue under Section 438(1) to the effect that the applicant shall be
released on bail "whenever arrested for whichever offence whatsoever."
G That is what is meant by a 'blanket order' of anticipatory bail, an order
which serves as a blanket to· cover or protect any and every kind of
allegedly unlawful activity, in fact any eventuality, likely or unlikely
regarding which, no concrete information can possibly be had. The
rationale of a direction under Section 438 (1) is the belief of the
applicant founded on reasonable grounds that he may be arrested for
H a non-bailable offence. It is unrealistic to expect the applicant to drctw
up his application with the meticulousness of a pleading in a civil case
and such is not requirement of the section. But specific event~ and fact&
GURDAKSH SINGH v. PUNJAB (Chandrachud, C.J.); 419

11)-Ust be disclosed by the applicant in order to enable the court to judge A
of the reasonableness of his belief, the existence of which is the sine
qua oon of the exercise of power conferred by the section.
) ' Apart from the fact that the very language of the statute compels
this construction. there is an important principle involved in the insis-
tence that facts, .on the basis of which a direction under Section 438
( 1) is sought, must be clear and specific, not vague and general. I~
is only by the observance of that principle that a possible conflict bet-
ween the right of an individual to his liberty and the right of the police
to investigate into crimes reported to. them can be avoided.

A blanket order of anticipatory bail is bound to cause serious inter-
c
ference with both the right and the duty of the police in the matter of
investigation because, regardless of what kind of offence is alleged to
have. been committed by the 11pplicant and when, an order of bail which
comprehends allegedly unlawfnl activity of any description whatsoever,
will prevent the police from arresting the applicant even if he commits, D
say, a murder in the presence of the public. Such an order can then
become a charter of lawlessn£SS and a weapon to stifle prompt investi-
gtltion into offences which could not possibly be predicated when the
order was passed. Therefore, the court which grants anticipatory bail
niust take care to specify the offence or offences in respect of which
alone the order will be effective. The power should not be exercised
in a vacuum.
/
There was some discussion before us on certain minor modalities
regarding the passing of bail orders under Section 438(1). Can an
order of bail be pilssed under 1bat section without notice to the public
prosecutor? It can be. But notice should issue to the public prosecutor
or the Government Advocate forthwith and the question of bail should
1 be re-examined in the light of the respective contentions of the parties.
'The ad-interim order too must conform to the requirements of the sec-
tion and suitable conditions should be imposed on the applicant even
at that stage. Should the operation of an order passed under Section
438(1) be limited in point of time? Not necessarily. The Court may, G
if there are reasons for doing so, limit the operation of the order to
•' a short period until after the filing of an F.I.R. in respect of the matter
covered by the order. The applicant may in such cases be direct~ !°
obtain an order of bail under Section 437 or 439 of the Code within
a reasonably short period after the filing of the F.I.R. as aforesaid. But
B
this need not be followed as an invariable rule. The normal rule should
be ii,ot to limit the operation of the order in relation to a period of time.
7-289 ,SCI/80
420 SUPREME COURT REPORTS '[1980] 3 S.C.R.

A · During the last couple of years this Court, while dealing with
appeals against orders J:1115sed by various High Courts, has granted
anticipatory bail to many a person by imposing conditions set out in
Section 438(2)(i), (ii) and (iii). The Court has, in addition, directed
in most of those cases that (a) the applicant should surrender himself
to the police for a brief period if a discovery is to be made under Sectioa
B 27 of the Evidence Act or that he should be deemed to have surrendered
himself if such a discovery is to be made. In certain exceptional cases,
the Court has, in view of the material placed before it, directed that the
order of anticipatory bail will remain in operation only for a week or
so until after the filing of the F.I.R. in respect of matters covered by the
order. These .orders, on the whole, have worked satisfatorily, causing
c the least inconvenience to the individuals concerned and least inter-
ference with the investigational ri1#s of the police. The Court has at-
tempted through those orders to strike a balance between the individual's
right to personal freedom and the investigational rights of the police. •
The appellants who were refused anticipatory bail by various courts
D have long since been released by this Court under Section 438(1) of
the Code.
The various appeals and Special Leave petitions before us will stand
disposed of in terms of this Judgment. The judgment of the Full Bench
of the Punjab and Haryruia High Court, which was treated as the main
case under appeal, is substantially set aside as indicated during the
course of this Judgment.

S.R. Appeals allowed in part.

•