Saxena Vs. State of Rajasthan  INSC 1801 (15 December 2009)
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.2406
OF 2009 (arising out of SLP(Crl.)No.2663 of 2009) RAVINDRA SAXENA
....APPELLANT(S) VERSUS ORDER SURINDER SINGH NIJJAR, J.
The application filed by the appellant seeking anticipatory bail
has been rejected for the third time by the High Court of Rajasthan, Jaipur
Bench. On the basis of the complaint made by one Karan/Karani Singh an FIR has
been registered against the appellant i.e. FIR No.107/2007 dated 3.5.2007
Jaipur City, Police Station Vidhyadhar Nagar under Section 420, 467, 468, 120-B
IPC. It is alleged that the 2 complainant agreed to purchase the flats being
Flat Nos.101 and 101A from the appellant and his father the necessary
consideration was received by the accused Nos. 1 and 2. The same flats were
subsequently sold to somebody else. It is, therefore, alleged that the
appellant has committed offences under Section 420, 467, 468, 120-B IPC. Amar
Nath Saxena (father of the Appellant); the Appellant i.e., Ravindra Saxena;
Sharada Devi and Pradeep Maheshwari and accused numbers 1 to 4 in the FIR. According
to the appellant the investigation in the FIR was taken over by Samunder Singh,
ASI, who happened to be a close relative of the complainant.
the criminal process is being abused at the instance of the investigating
At the time of the hearing of the matter the learned counsel for
the appellant pointed out that the father of the complainant is a retired
police officer. The complainant is a property dealer. The parties are well
known to each other.
commercial transactions with each other. In fact, the criminal complaint has
been filed in order to pressurise the appellant for not to pursue the civil
litigation pending 3 between the parties. The complainant has already filed a
suit for specific performance on 07.5.2007 on the same cause of action. Since,
the appellant was being pressurized to compromise in the civil litigation he
filed an application for anticipatory bail. He also filed the complaint in the
Bar Council of Rajasthan against some Advocates who had been compelling the
appellant. Even then Session Judge rejected his application for anticipatory
bail on 13.07.2007.
Thereafter, on the basis of a complaint made by Amarnath Saxena,
FIR being No.207/2007 dated 2.08.2007 has been registered against the Karni Singh
and others at Police Station Sadar, Jaipur, under Section 448, 456, 457, 420,
467, 468, 471, 380, 120-B IPC.
Being unsuccessful before the Sessions Judge, the appellant moved
an application for anticipatory bail before the High Court in the earlier case,
which was dismissed by the High Court, as well on 13.08.2007. The appellant
also sought quashing of the FIR in a petition filed under Section 482 Cr.P.C.
before the High Court of Rajasthan. This was also rejected by the High Court.
The appellant again moved 4 application for anticipatory bail which was
rejected by the High Court on 24.03.2008. Therefore, the appellant approached
this Court by way of petition for special leave to appeal, which was disposed
of on 12.2.2009 with the following order:
special leave petition is filed against an order of the High Court dismissing
the second bail application of the petitioner under Section 438.
prayer of Mr. S.K. Jain, learned counsel appearing for the petitioner, the
special leave petition is dismissed as withdrawn with liberty to the petitioner
to apply for third bail application before the High Court. If such an
application for bail is moved the concerned Court shall decide it on the same
In view of the above, the appellant moved the third application
for anticipatory bail. This has again been dismissed by the High Court with the
the facts and circumstances, therefore, the case of the petitioner cannot said
to have improved with the filing of the challan against him when prima facie
case has been found against the accused petitioner."
We are of the considered opinion that the approach adopted by the
High Court is wholly erroneous. The 5 application for anticipatory bail has
been rejected without considering the case of the appellant solely on the
ground that the challan has now been presented.
We may notice here that the provision with regard to the grant of
anticipatory bail was introduced on the recommendations of the Law Commission
of India in his 41st Report dated 24.09.1969. The recommendations were
considered by this Court in a Constitution Bench decision in the case of
Gurbaksh Singh Sibbia and others vs. State of Punjab, (1980) 2 SCC 565. Upon
consideration of the entire issue this Court laid down certain salutary
principles to be followed in exercise of the power under Section 438 Cr.P.C. by
the Sessions Court and the High Court. It is clearly held that the anticipatory
bail can be granted at any time so long as the applicant has not been arrested.
When the application is made to the High Court or Court of Sessions it must
apply its own mind on the question and decide when the case is made out for
granting such relief. In our opinion, the High Court ought not to have left the
matter to the Magistrate only on the ground that the challan has now been
presented. There is also 6 no reason to deny anticipatory bail merely because
the allegation in this case pertains to cheating or forgery of a valuable
security. The merits of these issues shall have to be assessed at the time of
the trial of the accused persons and denial of anticipatory bail only on the
ground that the challan has been presented would not satisfy the requirements
of Sections 437 and 438 Cr.P.C.
In our opinion, the High Court committed a serious error of law in
not applying its mind to the facts and circumstances of this case. The High
Court is required to exercise its discretion upon examination of the facts and
circumstances and to grant anticipatory bail "if it thinks fit". The
aforesaid expression has been explained by this Court in Gurbaksh Singh's case
(supra) as follows:
expression "if it thinks fit", which occurs in Section 438(1) in
relation to the power of the High Court or the Court of Session, is conspicuously
absent in Section 437(1). We see no valid reason for rewriting Section 438 with
a view, not to expanding the scope and ambit of the discretion conferred 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
anticipatory bail cannot be granted in respect of offences like criminal breach
of trust for the mere reason that the 7 punishment provided therefor is
imprisonment for life. Circumstances may broadly justify the grant of bail in
such cases too, though of course, the court is free to refuse anticipatory bail
in any case if there is material before it justifying such refusal."
The salutary provision contained in Section 438 Cr.P.C. was
introduced to enable the Court to prevent the deprivation of personal liberty.
It cannot be permitted to be jettisoned on technicalities such as "the
challan having been presented anticipatory bail cannot be granted". We may
notice here some more observations made by this Court in the case of Gurbaksh
Singh (supra) :
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 imposed 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 innocence 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 found in Section 438 can make its provisions constitutionally
vulnerable since the right to personal freedom cannot be made to depend on
compliance with unreasonable restrictions. The 8 beneficent provision contained
in Section 438 must be saved, not jettisoned. No doubt can linger after the
decision in Maneka Gandhi, that in order to meet the challenge of Article 21 of
the Constitution, the procedure established by law for depriving a person of
his liberty must be fair, just and reasonable. Section 438, in the form in
which it is conceived by the legislature, is open to no exception on the ground
that it prescribes a procedure which is unjust or unfair. We ought, at all
costs, to avoid throwing it open to a Constitutional challenge by reading words
in it which are not to be found therein."
In our opinion, the High Court erred in not considering the
application for anticipatory bail in accordance with law.
defence put forward by the appellant cannot be obliterated at this stage
itself. We are also of the opinion, that the submission of the learned counsel
for the appellant that the dispute herein is purely of a civil nature cannot be
brushed aside at this stage. We, therefore, grant anticipatory bail to the
appellant in the case pending on the basis of FIR No.107/2007 registered at
Police Station Vidhyadhar Nagar, Jaipur City under Section 420, 467, 468, 120-B
IPC now pending only under Section 420 and 120-B IPC. It is directed that in
the event of arrest the appellant shall be released on bail to the 9 satisfaction
of the Investigating Officer. It is also directed that the appellant shall join
investigation as and when required.
The impugned order is set aside and the appeal is allowed.
........................................J (TARUN CHATTERJEE)