Rashmi Rekha Thatoi
& ANR. Vs. State of Orissa & Ors.
[Criminal Appeal No.
750 of 2012 arising out of S.L.P. (Criminal) No. 7281 of 2011]
[Criminal Appeal No.
751 of 2012 arising out of S.L.P. (Criminal) No. 7286 of 2011]
J U D G M E N T
Dipak Misra, J.
granted in both the petitions.
is to the collective body, what health is to every individual body. Without
health no pleasure can be tasted by man; without Liberty, no happiness can be
enjoyed by society.” Thus spoke Bolingbroke.
is the precious possession of the human soul. No one would barter it for all the
tea in China. Not for nothing Patrick Henry thundered: "Is life so dear,
or peace so sweet, as to be purchased at the price of chains and slavery?
Forbid it, Almighty God! I know not what course others may take, but as for me,
give me liberty, or give me death!"
The thought of losing
one's liberty immediately brings in a feeling of fear, a shiver in the spine, an
anguish of terrible trauma, an uncontrollable agony, a penetrating nightmarish
perplexity and above all a sense of vacuum withering the very essence of existence.
It is because liberty is deep as eternity and deprivation of it, infernal. May be
for this protectors of liberty ask, "
How acquisition of entire
wealth of the world would be of any consequence if one's soul is lost?" It
has been quite often said that life without liberty is eyes without vision, ears
without hearing power and mind without coherent thinking faculty.
two centuries and a decade back thus spoke Edmund Burke: - “Men are qualified
for civil liberty, in exact proportion to their disposition to put moral chains
upon their own appetites; in proportion as their love to justice is above their
rapacity; in proportion as their soundness and sobriety of understanding is
above their vanity and presumption; in proportion as they are more disposed to
listen to the counsel of the wise and good, in preference to the flattery of
Society cannot exist
unless a controlling power upon will and appetite be placed somewhere and the
less of it there is within, the more there must be without. It is ordained in the
eternal constitution of things that men of intemperate minds cannot be free.
Their passions forge their fetters.”
voice was echoed by E. Barrett Pretty man, a retired Chief Judge of U.S. Court
of Appeals:- “In an ordered society of mankind there is no such thing as unrestricted
liberty, either of nations or of individuals. Liberty itself is the product
restraints; it is inherently a composite of restraints; it dies when restraints
are withdrawn. Freedom, I say, is not an absence of restraints; it is a composite
There is no liberty without
order. There is no order without systematized restraint. Restraints are the
substance without which liberty does not exist. They are the essence of
liberty. The great problem of the democratic process is not to strip men of restraints
merely because 'they are restraints.
The great problem is to
design a system of restraints which will nurture the maximum development of man's
capabilities, not in a massive globe of faceless animations but as a perfect
realization, of each separate human mind, soul and body; not in mute, motionless
meditation but in flashing, thrashing activity.”
the cherished idea of liberty in mind, the fathers of our Constitution
engrafted in its Preamble: "Liberty of thought, expression, belief, faith
and worship." After a lot of debate in the Constituent Assembly, Article
21 of the Constitution came into existence in the present form laying down in
categorical terms that no person shall be deprived of his life and personal
liberty except according to the procedure established by law.
have begun with the aforesaid prologue, as the seminal question that falls for
consideration in these appeals is whether the High Court, despite the value
attached to the concept of liberty, could afford tovaporise the statutory
mandate enshrined under Section 438 of the Code of Criminal Procedure (for
short ‘the Code’).
It is not to be forgotten
that liberty is not an absolute abstract concept. True it is, individual liberty
is a very significant aspect of human existence but it has to be guided and
governed by law. Liberty is to be sustained and achieved when it sought to be
taken away by permissible legal parameters. A court of law is required to be
guided by the defined jurisdiction and not deal with matters being in the realm
of sympathy or fancy.
to the narration. In these two appeals arising out of SLP No. 7281 of 2011 and
7286 of 2011, the challenge is to the orders dated22.07.2011 and 05.08.2011 in
BLAPL No. 13036 of 2011 and 12975 of 2011respectively passed by the High Court
of Judicature of Orissa at Cuttack in respect of five accused persons under
Section 438 of the Code pertaining to offences punishable under Section
341/294/506 and 302 read with Section 34of the Indian Penal Code (for short “the
IPC”) in connection with Binjharpur PS Case No. 88/2011 corresponding to GR Case
No. 343 of 2011pending in the Court of learned SDJM, Jajpur.
present appeals have been preferred by the sister of the deceased and the
complainant, an eye witness, seeking quashing of the orders on the foundation
that the High Court has extended the benefit of Section 438 (1)of the Code in
an illegal and impermissible manner.
facts that had formed the bedrock in setting the criminal law in motion need
not be stated, for the nature of orders passed by High Court in both the cases
have their own peculiarity. If we allow ourselves to saythey have the enormous potentiality
to create colossal puzzlement as regards the exercise of power under Section
438 of the Code.
dealing with the case of accused Uttam Das and Ranjit Das, videorder dated
22.07.2011 the High Court, as stated, perused the case file and passed the
following order. “Considering the facts and circumstances of the case and the materials
available on record, this Court is not inclined to grant anticipatory bail to
This court directs that
if petitioner No. 1 Uttam Das surrenders before the learned S.D.J.M., Jajpur
and moves an application for bail in the aforesaid case, in such event the
learned S.D.J.M. shall release him on bail on such terms and conditions as he
may deem fit and proper.
So far as petitioner
No. 2 Ranjit Das is concerned, this court directs him to surrender before the learned
S.D.J.M., Jajpur and move an application for bail in connection with the aforesaid
case, in such event his application shall be considered by the learned
S.D.J.M., on its own merits. The Bail Application is accordingly disposed of.” [Underlining
the case of the other accused persons, namely, Abhimanyu Das, Murlidhar Patra
and Bhagu Das the High Court on 05.08.2011 passed the order on following terms.
“Considering the facts and circumstances of the case this Court is not inclined
to grant anticipatory bail to the petitioners. Since there are some materials
against Bhagu Das @ Sanjit Kumar Das petitioner No. 3, this Court directs that in
case petitioner No. 3 surrenders before the leaned S.D.J.M., Jajpur and moves
an application for bail, the learned S.D.J.M. shall consider and dispose of the
same on its own merit in accordance with law.
So far as the prayer
for bail of petitioner Nos. 1 and 2 is concerned since one of the co-accused
namely, Uttam Das has been released on bail in pursuance of order dated 02.07.2011
passed by this Court in BLAPL No. 13036 of 2011 and petitioner Nos. 1 and 2
stands on similar footing with co-accused Uttam Das, this Court directs that in
case petitioner Nos. 1 and 2 surrender before the learned S.D.J.M., Jajpur and move
an application for bail, the learned S.D.J.M., shall release them on bail on
such terms and conditions as he may deem fit and proper with further condition
that petitioner Nos. 1 and 2 shall give an undertaking before the Court below
that they will not commit any similar type of offence. In case any complaint is
received against them that will amount to cancellation of bail” [Emphasis
a perusal of both the orders it is perceivable that the commonality in both the
orders is that while the High Court had expressed its opinion that though it is
not inclined to grant anticipatory bail to the petitioners yet it has directed
on their surrender some of the accused petitioners would be enlarged on bail on
such terms and conditions as maybe deemed fit and proper by the concerned Sub Divisional
Judicial Magistrate and cases of certain accused persons on surrender shall be dealt
with on their own merits.
learned counsel for the petitioner has contended that the High Court has
gravely flawed in passing such kind of orders in exercise of power under
Section 438 of the Code which the law does not countenance and, therefore, they
deserved to be lancinated. It is his further submission that when the accused
persons are involved in such serious offences the High Court could not have dealt
with them by taking recourse to an innovative method which has no sanction in
learned counsel for the respondent made a very feeble attempt to support the
pivotal issue that emanates for consideration is whether the orders passed by
the High Court are legitimately acceptable and legally sustainable within the
ambit and sweep of Section 438 of the Code. To appreciate the defensibility of
the order it is condign to refer to Section438 of the Code which reads as
follows. “438. Direction for grant of bail to person apprehending arrest.-
any person has reason to believe that he may be arrested on 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 in the event of such arrest
he shall be released on bail; and that Court may, after taking into consideration,
inter alia, the following factors, namely:-
nature and gravity of the accusation;
antecedents of the applicant including the fact as to whether he has previously
undergone imprisonment on conviction by a Court in respect of any cognizable
possibility of the applicant to flee from justice; and
the accusation has been made with the object of injuring or humiliating the applicant
by having him so arrested, either reject the application forthwith or issue an interim
order for the grant of anticipatory bail:
Provided that, where
the High Court or, as the case may be, the Court of Session, has not passed any
interim order under this sub-section or has rejected the application for grant of
anticipatory bail, it shall be open to an officer in-charge of a police station
to arrest, without warrant the applicant on the basis of the accusation
apprehended in such application.
the Court grants an interim order under sub-section (1), it shall forthwith
cause a notice being not less than seven days notice, together with a copy of
such order to be served on the Public Prosecutor and the Superintendent of
Police, with a view to give the Public Prosecutor a reasonable opportunity of being
heard when the application shall be finally heard by the Court.
presence of the applicant seeking anticipatory bail shall be obligatory at the time
of final hearing of the application and passing of final order by the Court, if
on an application made to it by the Public Prosecutor, the Court considers such
presence necessary in the interest of justice.
the High Court or the Court of Session makes a direction under sub-section (1),
it may include such conditions in such directions in the light of the facts of the
particular case, as it may thinks fit, including –
condition that the person shall make himself available for interrogation by a
police officer as and when required;
condition that the person shall not, directly or indirectly, make any
inducement, threat or promise to any person acquainted with the facts of the case
so as to dissuade him from disclosing such facts to the court or to any police
condition that the person shall not leave India without the previous permission
of the court;
other condition as may be imposed under sub- section (3) of section 437, as if the
bail were granted -under that section.
such person is thereafter arrested without warrant by an officer in charge of a
police station on such accusation, and is prepared either at the time of arrest
or at any time while in the custody of such officer to give bail, he shall be released
on bail, and if a Magistrate taking cognizance of such offence decides that a warrant
should issue in the first instance against that person, he shall issue a bailable
warrant in conformity with the direction of the court under sub-section (1).”
aforesaid provision in its denotative compass and connotative expanse enables
one to apply and submit an application for bail where one anticipates his
arrest in a non-bailable offence. Though the provision does not use the
expression anticipatory bail, yet the same has come in vogue by general usage
and also has gained acceptation in the legal world.
Constitution Bench in Gurbaksh Singh Sibbia etc. v. The State of Punjab, has
drawn a distinction between an order of ordinary bail and order of anticipatory
bail by stating that the former is granted when the accused is in custody and,
therefore, means release from the custody of the Police, and the latter is
granted in anticipation of arrest and hence, effective at the very moment of
It has been held therein,
an order of anticipatory bail constitutes, so to say, an insurance against Police
custody falling upon arrest for offences in respect of which the order is
issued. Their Lordships clarifying the distinction have observed that 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 be released on
Constitution Bench partly accepted the verdict in Balchand Jain v State of
Madhya Pradesh  by stating as follows:- “We agree, with respect, that the
power conferred by S. 438 is of an extraordinary character in the sense indicated
above, namely, that it is not ordinarily resorted to like the power conferred
by Ss. 437 and 439. We also agree that the power to grant anticipatory bail
should be exercised with due care and circumspection.”
the larger Bench referred to the concept of liberty engrafted in Article 21 of
the Constitution, situational and circumstantial differences from case to case
and observed that 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 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. However, 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; and equally, that anticipatory bail must be granted if there is no fear
that the applicant will abscond.
Bench also opined the Court has to take into consideration the combined effect
of several other considerations which are too numerous to enumerate and the
legislature has endowed the responsibility on the High Court and the Court of
Session because of their experience.
Constitution Bench proceeded to state the essential concept of exercise of
jurisdiction under Section 438 of the Code on following terms:- “Exercise of
jurisdiction under Section 438 of Code of Criminal Procedure is extremely
important judicial function of a judge and must be entrusted to judicial
officers with some experience and good track record. Both individual and society
have vital interest in orders passed by the courts in anticipatory bail applications.”
Savitri Agarwal v. State of Maharashtra and Anr., the Bench culled out the
principles laid down in Gurbaksh Singh (supra). Some principles which are
necessary to be reproduced are as follows:- “ (i) Before power under Sub-section
(1) of Section 438 of the Code is exercised, the Court must be satisfied that the
applicant invoking the provision has reason to believe that he is likely to be
arrested for a non-bailable offence and that belief must be founded on
is not belief, for which reason, it is not enough for the applicant to show
that he has some sort of vague apprehension that someone 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 a non-bailable
offence, must be capable of being examined by the Court objectively. Specific
events and facts must be disclosed by the applicant in order to enable the Court
to judge of the reasonableness of his belief, the existence of which is the
sine qua non of the exercise of power conferred by the Section. ii) The
provisions of Section 438 cannot be invoked after the arrest of the accused.
After arrest, the
accused must seek his remedy under Section437 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. viii) An interim bail order can be passed under Section 438 of the
Code without notice to the Public Prosecutor but notice should be issued to the
Public Prosecutor or to the Government advocate forthwith and the question of bail
should be re- examined in the light of respective contentions of the parties. The
ad-interim order too must conform to the requirements of the Section and suitable
conditions should be imposed on the applicant even at that stage.”
this juncture we may note with profit that there was some departure in certain
decisions after the Constitution Bench decision. In Salauddin Abdulsamad Shaikh
v. State of Maharashta, it was held that it was necessary that under certain
circumstances anticipatory bail order should be of a limited duration only and
ordinarily on the expiry of that duration or extended duration the Court granting
anticipatory bail should leave it to the regular court to deal with the matter on
appreciation of material placed before it.
K. L. Verma v. State and Anr. , it was ruled that limited duration must be
determined having regard to the facts of the case and the need to give the
accused sufficient time to move the court for regular bail and to give the
regular court sufficient time to determine the bail application. It was further
observed therein that till the bail application is disposed of one way or the
other, the Court may allow the accused to remain on anticipatory bail.
Nirmal Jeet Kaur v. State of M. P. and Another, the decision in K. L. Verma’s
case (supra) was clarified by stating that the benefit of anticipatory bail may
be extended few days there after to enable the accused persons to move the High
Court if they sodesire.
Adri Dharan Das v. State of West Bengal , a two-Judge Bench while accepting
for grant of bail for limited duration has held that arrest is a part of the process
of investigation intended to secure several purposes. The accused may have to
be questioned in detail regarding various facets of motive, preparation,
commission and aftermath of the crime and the connection of other persons, if any,
in the crime.
There may be circumstances
in which the accused may provide information leading to discovery of material
facts. It may be necessary to curtail his freedom in order to enable the investigation
to proceed without hindrance and to protect witnesses and persons connected
with the victim of the crime, to prevent his disappearance to maintain law and
order in the locality. For these or other reasons, arrest may become inevitable
part of the process of investigation.
The legality of the
proposed arrest cannot be gone into in an application under Section 438 of the
Code. The role of the investigator is well-defined and the jurisdictional scope
of interference by the Court in the process of investigation is limited. The
Court ordinarily will not interfere with the investigation of a crime or with
the arrest of accused in a cognizable offence. An interim order restraining arrest,
if passed while dealing with an application under Section 438 of the Code will amount
to interference in the investigation, which cannot, at any rate, be done under
Section 438 of the Code.
analysing the ratio in the cases of Salauddin Abdulsamad Shaikh(supra), K. L.
Verma (supra), Nirmal Jeet Kaur (supra), Niranjan Singh and Anr. v. Prabhakar
Rajaram Kharote and Ors. the Bench opined thus:- “14. After analyzing the
crucial question is when a person is in custody, within the meaning of Section
439 of the Code, it was held in Nirmal Jeet Kaur's case (supra) and Sunita Devi's
case (supra) that for making an application under Section 439 the fundamental requirement
is that the accused should be in custody.
As observed in
Salauddin's case (supra) the protection in terms of Section 438 is for a
limited duration during which the regular Court has to be moved for bail.
Obviously, such bail is bail in terms of Section 439 of the Code, mandating the
applicant to be in custody. Otherwise, the distinction between orders under
Sections 438 and 439 shall be rendered meaningless and redundant. 15. If the
protective umbrella of Section 438 is extended beyond what was laid down in
Salauddin's case (supra) the result would be clear bypassing of what is
mandated in Section 439 regarding custody. In other words, till the applicant
avails remedies up to higher Courts, the requirements of Section 439 become dead
letter. No part of a statute can be rendered redundant in that manner.”
Union of India v. Padam Narain Agarwal this Court while dealing with an
order wherein the High Court had directed that the respondent therein shall
appear before the concerned customs authorities in responseto the summons
issued to them and in case the custom authorities found anon-bailable against
the accused persons they shall not arrest without ten days prior notice to
The two-Judge Bench
relied on the decisions in Gurbaksh Singh Sibbia (supra), Adri Dharan Das (supra),
and State of Mahrashtra v. Mohd. Rashid and Anr. and eventually held thus:-
“In our judgment, on the facts and in the circumstances of the present case,
neither of the above directions can be said to be legal, valid or in consonance
Firstly, the order passed
by the High Court is a blanket one as held by the Constitution Bench of this
Court in Gurbaksh Singh and seeks to grant protection to respondents in respect
of any non-bailable offence. Secondly, it illegally obstructs, interferes and curtails
the authority of Custom Officers from exercising statutory power of arrest a
person said to have committed a non- bailable offence by imposing a condition of
giving ten days prior notice, a condition not warranted by law. The order
passed by the High Court to the extent of directions issued to the Custom
Authorities is, therefore, liable to be set aside and is hereby set aside.”
it noted, the principle of grant of anticipatory bail for a limited duration in
cases of Salauddin Abdulsamad Shaikh (supra), K. L. Verma (supra), Adri Dharan
Das (supra), Sunita Devi v. State of Bihar & Anr. was held to be
contrary to the Constitution decision in Gurbaksh Singh Sibbia’s case (supra)
by a two-Judge Bench in Siddharam Satlingappa Mhetre v. State of Maharashtra and
Ors. and accordingly the said decisions were treated as per in curium.
It is worth noting though
the Bench treated Adri Dharan Das (supra) to be per incuriam, as far as it pertained
to grant of anticipatory bail for limited duration, yet it has not held that the
view expressed therein that the earlier decisions pertaining to the concept of deemed
custody as laid down in Salauddin Abdulsamad Shaikh (supra) and similar line of
cases was per incuriam. It is so as the introversy involved in Siddharam Satlingappa
Mhetre (supra) did not relate to the said arena.
have referred to the aforesaid pronouncements to highlight how the Constitution
Bench in the case of Gurbaksh Singh Sibbia (supra) had analyzed and explained
the intrinsic underlying concepts under Section 438of the Code, the nature of
orders to be passed while conferring the said privilege, the conditions that
are imposable and the discretions to be used by the courts.
On a reading of the said
authoritative pronouncement and the principles that have been culled out in
Savitri Agarwal (supra) there is remotely no indication that the Court of
Session or the High Court can pass an order that on surrendering of the accused
before the Magistrate he shall be released on bail on such terms and conditions
as the learned Magistrate may deem fit and proper or the superior court would impose
conditions for grant of bail on such surrender.
When the High Court in
categorical terms has expressed the view that it not inclined to grant anticipatory
bail to the accused petitioners it could not have issued such a direction which
would tantamount to conferment of benefit by which the accused would be in a position
to avoid arrest.
It is in clear violation
of the language employed in the statutory provision and in flagrant violation
of the dictum laid down in the case of Gurbaksh Singh Sibbia (supra) and the
principles culled out in the case of Savitri Agarwal(supra). It is clear as
crystal the court cannot issue a blanket order restraining arrest and it can
only issue an interim order and the interim order must also conform to the requirement
of the section and suitable conditions should be imposed. In the case of
Gurbaksh Singh Sibbia (supra) the Constitution Bench has clearly observed that exercise
of jurisdiction under Section 438 of the Code is an extremely important judicial
function of a judge and both individual and society have vital interest in the orders
passed by the court in anticipatory bail applications.
this context it is profitable to refer to a three-Judge Bench decision in Dr.
Narendra K. Amin v. State of Gujarat and another . In the said case a
learned Judge of the Gujarat High Court cancelled the bail granted to the
appellant therein in exercise of power under Section 439(2) of the Code. It was
contended before this Court that the High Court had completely erred by not
properly appreciating the distinction between the parameters for grant of bail
and cancellation of bail.
The Bench referred to
the decision in Puran v. Rambilas and another wherein it has been noted
that the concept of setting aside an unjustified, illegal or perverse order is
totally different from the cancelling an order of bail on the ground that the accused
has mis conducted himself or because of some supervening circumstances
warranting such cancellation. The three-Judge Bench further observed that when
irrelevant materials have been taken into consideration the same makes the order
granting bail vulnerable.
In essence, the
three-Judge Bench has opined that if the order is perverse, the same can be set
at naught by the superior court. In the case at hand the direction to admit the
accused persons to bail on their surrendering has no sanction in law and, in
fact, creates a dent in the sacrosanctity of law. It is contradictory in terms
and law does not countenance paradoxes. It gains respectability and
acceptability when its solemnity is maintained. Passing such kind of orders the
interest of the collective at large and that of the individual victims is
jeopardised. That apart, it curtails the power of the regular court dealing
with the bail applications.
this regard it is to be borne in mind that a court of law has to act within the
statutory command and not deviate from it. It is a well settled proposition of
law what cannot be done directly, cannot be done indirectly. While exercising a
statutory power a court is bound to act within the four corners thereof. The
statutory exercise of power stands on a different footing than exercise of
power of judicial review. This hasbeen so stated in Bay Berry Apartments (P) Ltd.
and Anr. v. Shobha and Ors. and U.P. State Brassware Corporation Ltd. and
Anr. v. Uday Narain Pandey .
on the foundation of aforesaid well settled principles, their resistible
conclusion is that the impugned orders directing enlargement of bail of the accused
persons, namely, Uttam Das, Abhimanyu Das and Murlidhar Patra by the Magistrate
on their surrendering are wholly unsustainable and bound to founder and
accordingly the said directions areset aside. Consequently the bail bonds of
the afore named accused persons are cancelled and they shall be taken into
custody forthwith. It needs no special emphasis to state that they are entitled
to move applications for grant of bail under Section 439 of the Code which shall
be considered on their own merits.
appeals are accordingly disposed of.
[K. S. Radhakrishnan]