Agarwal & Ors. Vs. State of Maharashtra & ANR.  INSC 1199 (10
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NOS.
1178-1179 OF 2009 (Arising out of S.L.P. (Criminal) Nos. 5563-5564 of 2008)
SAVITRI AGARWAL & ORS. -- APPELLANT (S) VERSUS
Challenge in these two appeals is to the judgment and order dated
2nd July, 2008 passed by the High Court of Judicature at Bombay, Nagpur Bench,
Nagpur in Criminal Applications No.250 and 2081 of 2008, whereby the said two
applications filed by the State and the 2 complainant respectively, have been
allowed and the protection granted to the appellants by the Sessions Judge,
Amravati vide order dated 18th December, 2007 in terms of Section 438 of the
Code of Criminal Procedure, 1973 (for short `the Code') has been withdrawn.
appellants herein are the mother-in-law, father-in-law, husband and the younger
brother of the father-in-law of the deceased-Laxmi.
accused of having committed offences punishable under Sections 498A, 304-B read
with Section 34 of the Indian Penal Code, 1860 (for short `the IPC') and
Sections 3 and 4 of the Dowry Prohibition Act, 1961.
Material facts, leading to the filing of these appeals, are as
deceased-Laxmi got married to appellant No.3 on 26th January, 2006. On 13th
October, 2006, they were blessed with a baby boy. On 6th December, 2007 at
about 4.30 p.m., appellant No.2 (father-in-law) is stated to have heard the
cries of Laxmi and when he rushed to the second floor of the house, he saw her
burning. He tried to douse the fire. Laxmi told him that her son was lying in
the bathroom. He rushed to the bathroom and found that the child also had
burns. Laxmi and her child were removed to the hospital. At 3 about 6.40 p.m.,
her statement was recorded by the Executive Magistrate wherein she stated that
she and her son caught fire when she was pouring kerosene oil in the lamp which
accidentally fell down; the oil got spilled over and both of them got burnt. At
about 10.55 p.m., the minor child expired. On receiving the intimation, parents
of Laxmi reached the hospital at about 11.30 p.m. the same night. On 7th
December, 2007, at about 1.40 p.m. another statement of Laxmi was recorded by
the Executive Magistrate wherein again she reiterated that she had got burnt
On 8th December, 2007, father of Laxmi lodged a complaint with
Police Station City Kotwali, Amravati against the appellants, inter alia,
alleging that after the marriage of his daughter on 26th January, 2006, the
appellants were torturing her for not meeting dowry demand of Rs.2 lakhs and
earlier on 15th July, 2006, due to torture she had left the matrimonial home,
intending to commit suicide but due to intervention of the relatives, she
returned back to Amravati. On the said complaint, the police registered an FIR
against the appellants for offences under Section 498A read with Section 34,
IPC and Sections 3 and 4 of the Dowry Prohibition Act, 1961.
On 6th December, 2007 the appellants applied for grant of
anticipatory bail before the Sessions Judge, Amravati, who, vide order dated
10th December, 2007, initially granted interim protection to them from arrest
till the next date of hearing i.e. 17th December, 2007. On 16th December, 2007,
Laxmi expired and offence under Section 304-B IPC came to be added against the
appellants. On 18th December, 2007, after hearing both sides and upon taking
into consideration the said two dying declarations made by the deceased -
Laxmi, statements of the complainant and witnesses and after perusing the case
diary, the learned Sessions Judge confirmed the anticipatory bail granted to
Aggrieved, the State of Maharashtra and the complainant filed
petitions before the High Court for cancellation of anticipatory bail granted
to the appellants. As noted earlier, by the impugned order, the High Court has
cancelled the anticipatory bail granted to the appellants, on the ground that
the Sessions Judge had failed to apply his mind to certain vital circumstances
viz. - absence of mention of lantern and match stick in the panchnama;
necessity of lantern and its lighting at 4 p.m. in the afternoon when the house
was equipped with an inverter; the daughter-in-law doing such risky work with
one 5 year old child, particularly when elders in the family were present in
the house and had everything been well in the house, there was no occasion for
the parents of the deceased to implicate her in-laws.
alia, observing that the evidence, which directly involved the appellants, had
been ignored, rendering the order passed by the Sessions Judge perverse, as
noted above, the High Court has set aside the said order. The High Court has
also noted that the offences complained of, being of serious nature, there was
no ground to grant anticipatory bail to the appellants. Being aggrieved, the
appellants are before us in these appeals.
Mr. Uday U. Lalit, learned senior counsel appearing for the
appellants contended that the High Court has failed to appreciate the factual
background of the case, particularly the fact that in both the dying
declarations recorded by the Executive Magistrate, the deceased had not
levelled any allegation against the appellants for demanding any dowry or for
torturing her for any other purpose. It was strenuously urged that the second
dying declaration recorded on 7th December, 2007 at about 1.40 p.m. was in the
presence and perhaps at the instance of the father of the deceased, who
admittedly had arrived in the hospital on 6th December, 2007 at 11.30 p.m., yet
6 the deceased did not level any allegation against the appellants.
counsel argued that the anticipatory bail having been granted by the Sessions
Judge upon consideration of the relevant material placed before him by the
prosecution, viz. the dying declarations, the statements recorded by the
investigating officer and the case diary, in the absence of any complaint by
the Investigating Officer that the appellants were not cooperating in the
investigations after the grant of interim protection on 10th December, 2007, or
that they had misused the anticipatory bail granted to them, there was no other
overwhelming circumstance before the High Court, warranting interference with
the judicial discretion exercised by the Sessions Judge and cancellation of
Per contra, Mr. Sekhar Naphade, learned senior counsel, appearing
on behalf of the State strenuously urged that the circumstances relied upon by
the High Court in its order cancelling the anticipatory bail point a needle of
suspicion at the appellants and therefore, to elicit the truth custodial
interrogation of the appellants would be necessary.
the fact that the deceased had left her matrimonial home on 15th July, 2006
intending to commit suicide because of torture by the appellants and had
returned back to her matrimonial home on 7 being persuaded by the relatives of
both sides on the assurance by the appellants that she would not be harassed,
the incident in question raises presumption against the appellants in terms of
Section 304-B IPC. Learned counsel for the complainant, supporting the orders
passed by the High Court, submitted that since order granting anticipatory bail
had been passed by the Sessions Judge by ignoring evidence and material on
record and the nature of offence, in the High Court was justified in cancelling
Before examining the merits of the rival contentions, we deem it
appropriate to re-capitulate the background in which Section 438 was inserted
in the Code and the broad parameters to be kept in view while dealing with an
application under the said provision because despite plethora of case law on
the subject including a decision of the of Punjab2 certain misgivings in regard
to the concept and scope of the said provision still seem to prevail.
6 SCC 338 2 (1980) 2 SCC 565 8
Section 438 of the Code confers on the High Court and the Court of
Session, the power to grant `anticipatory bail' if the applicant has `reason to
believe' that he may be arrested on accusation of having committed a
non-bailable offence. The expression `anticipatory bail' has not been defined
in the Code. But as observed in Balchand Jain arrest'. The expression
`anticipatory bail' is a misnomer inasmuch as it is not as if bail is presently
granted by the Court in anticipation of arrest. When a competent court grants
`anticipatory bail', it makes an order that in the event of arrest, a person
shall be released on bail.
no question of release on bail unless a person is arrested and, therefore, it
is only on arrest that the order granting anticipatory bail becomes operative.
The Court went on to observe that the power of granting `anticipatory bail' is
somewhat extraordinary in character and it is only in `exceptional 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 may be exercised.
being rather unusual in nature, it is entrusted only to the 3 (1976) 4 SCC 572
9 higher echelons of judicial service, i.e. a Court of Session and the High
Court. Thus, the ambit of power conferred by Section 438 of the Code was held
to be limited.
Historically, the Code of Criminal Procedure, 1898 (old Code) did
not contain specific provision corresponding to Section 438 of the present Code
of 1973. Under the old Code, there was a sharp difference of opinion amongst
various High Courts on the question whether a Court had inherent power to make
an order of bail in anticipation of arrest. The preponderance of view, however,
was that it did not have such power. The Law Commission of India considered the
question and vide its 41st Report, recommended introduction of an express
provision in this behalf.
The suggestion of the Law Commission was accepted by the Central
Government and in the Draft Bill of the Code of Criminal Procedure, 1970,
Clause 447 conferred an express power on the High Court and the Court of
Session to grant anticipatory bail.
13.The Law Commission again considered the issue and stated;
Bill introduces a provision for the grant of anticipatory bail. This is
substantially in accordance with the recommendation made by the previous
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.
further of the view that in order to ensure that the provision is not put to
abuse at the instance of unscrupulous 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.
also be convenient to provide that notice of the interim order as well as of
the final orders will be given to the Superintendent of Police forthwith".
Commission of India, Forty-eighth Report, para 31]
Keeping in view the reports of the Law Commission, Section 438 was
inserted in the Code. Sub-section (1) of Section 438 enacts that when any
person has reason to believe that he may be arrested on an accusation of having
committed a non-bailable offence, he may apply to the High Court or to the
Court of Session for a direction that in the event of his arrest he shall be
released on bail, and the Court may, if it thinks fit, direct that in the event
of such arrest he shall be 1 released on bail. Sub-section (2) empowers the
High Court or the Court of Session to impose conditions enumerated therein.
Sub- section (3) states that if such person is thereafter arrested without
warrant by an officer in charge of a police station on such accusation, he
shall be released on bail.
In Gurbaksh Singh Sibbia (supra), the Constitution Bench was
called upon to consider correctness or otherwise of principles laid down by the
Full Bench of High Court of Punjab & Haryana in High Court summarized the
law relating to anticipatory bail as reflected in Section 438 of the Code and
laid down eight principles which were to be kept in view while exercising
discretionary power to grant anticipatory bail.
The Constitution Bench while disagreeing in principle with the
constraints which the High Court had engrafted on the power conferred by
Section 438 of the Code, inter alia, observed that the Legislature has
conferred a wide discretion on the High Court and the Court of Session to grant
anticipatory bail since it felt, firstly, that it would be difficult to
enumerate the conditions under which 4 AIR 1978 P&H 1 : 1978 Crl LJ 20 (FB)
1 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 matter of grant of relief in the nature of anticipatory bail. The Court
on matters which rest on discretion and the attempt to discover formulae of
universal application when facts are bound to differ from case to case
frustrate the very purpose of conferring discretion. No two cases are alike on
facts and therefore, Courts have to be allowed a little free play in the 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 orders are not final but are
open 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 hand, 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
The Court felt that wide discretionary power conferred by the
Legislature on the higher echelons in the criminal justice delivery system
cannot be put in the form of straight-jacket rules for universal application as
the question whether to grant bail or not depends for its answer upon a variety
of circumstances, the cumulative effect of 1 which must enter into the judicial
verdict. A circumstance which, in a given case, turns out to be conclusive, may
or may not have any significance in another case. While cautioning against
imposition of unnecessary restrictions on the scope of the Section, because, in
its opinion, over generous infusion of constraints and conditions, which were
not to be found in Section 438 of the Code, could make the provision
constitutionally vulnerable, since the right of personal freedom, as enshrined
in Article 21 of the Constitution, cannot be made to depend on compliance with
unreasonable restrictions, the Constitution Bench laid down the following
guidelines, which the Courts are required to keep in mind while dealing with an
application for grant of anticipatory bail:
the power conferred under Section 438 of the Code can be described as of an
extraordinary character, but this does not justify the conclusion that the
power must be exercised in exceptional cases only because it is of an
extraordinary character. Nonetheless, the discretion under the Section has to
be exercised with due care and 1 circumspection depending on circumstances
justifying its exercise.
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 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 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 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 1 is the sine qua non of the exercise of power conferred by
observations made in Balchand Jain's case (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 be
treated as conclusive on the point. There is no warrant for reading into
Section 438, the conditions subject to which bail can be granted under Section
437(1) of the Code and therefore, anticipatory bail cannot be refused in respect
of offences like criminal breach of trust for the mere reason that the
punishment provided for 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.
blanket order of bail should be passed and the Court which grants anticipatory
bail must take care to specify the offence or the offences in respect of which
alone the order will be effective. While granting relief under Section 438(1)
of the Code, appropriate conditions can be imposed under Section 438(2) so as
to ensure an uninterrupted investigation. One such condition 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 recovery.
such an order can become a charter of lawlessness and a weapon to stifle prompt
investigation into offences which could not possibly be predicated when the
order was passed.
filing of First Information Report (FIR) is not a condition precedent to the
exercise of power under Section 438. The imminence of a likely arrest 1 founded
on a reasonable belief can be shown to exist even if an FIR is not yet filed.
anticipatory bail can be granted even after an FIR is filed so long as the
applicant has not been arrested.
provisions of Section 438 cannot be invoked after the arrest of the accused.
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.
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.
ad-interim order too must conform to the requirements of the Section and
suitable conditions 1 should be imposed on the applicant even at that stage.
Though it is not necessary that the operation of an order passed under Section
438(1) of the Code be limited in point of time but the Court may, if there are
reasons for doing so, limit the operation of the order to a short period until
after the filing of FIR 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 reasonable short period after the
filing of the FIR.
At this juncture, it would be appropriate to note that the view
the effect that while dealing with an application under Section 438 of the
Code, the Court cannot pass an interim order restraining arrest as it will
amount to interference in the investigation, does not appear to be in
consonance with the opinion of the Constitution Bench in Sibbia's case (supra).
Similarly, the observation that power under 5 (2005) 4 SCC 303 1 Section 438 is
to be exercised only in exceptional cases seems to be based on the decision in
Balchand's case (supra), which has not been fully approved by the Constitution
Bench. On this aspect, the Constitution Bench stated thus:
observations made in Balchand Jain 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
concluding the points which arise directly for our consideration. We agree,
with respect, that the power conferred by Section 438 is of an extraordinary
character in the sense indicated above, namely, that it is not ordinarily
resorted to like the power conferred 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 with the
observations made in Balchand Jain in an altogether different context on an
altogether different point".
It would also be of some significance to mention that Section 438
has been amended by the Code of Criminal Procedure (Amendment) Act, 2005. The
amended Section is more or less in line with the parameters laid down in
Sibbia's case (supra). However, the amended provision has not yet been brought
Having considered the case in hand on the touchstone of the
aforementioned parameters, we are of the opinion that the High 2 Court has
committed a serious error in reversing the order passed by the Additional
Sessions Judge, Amravati granting anticipatory bail to the appellants. The
learned Sessions Judge passed the order after due consideration of the facts
and circumstances of the case, in particular, the two dying declarations, one
recorded in the presence of the parents of the deceased and the statements of
the members of the Women Cell who had dealt with the case when on 15th July,
2006, the deceased had left the house with intention to commit suicide and
therefore, it cannot be said that the judicial discretion exercised in granting
anticipatory bail was perverse or erroneous, warranting interference by the
High Court. The order passed by the Sessions Judge was supported by reasons to
the extent required for exercise of judicial discretion in the matter of grant
of bail. It may be true that some of the circumstances, noticed by the High
Court in the impugned order, viz., no reference to lantern in the spot
panchnama or the necessity of cleaning the lantern at 4 p.m. and/or
availability of an inverter in the house etc., could have persuaded the
Sessions Judge to take a different view but it cannot be said that the factors
which weighed with the Sessions Judge in granting bail were irrelevant 2 to the
issue before him, rendering the order as perverse.
merely because the High Court had a different view on same set of material
which had been taken into consideration by the Sessions Judge, in our view, was
not a valid ground to label the order passed by the Sessions Judge as perverse.
It also appears to us that the High Court has overlooked the
distinction of factors relevant for rejecting bail in a non-bailable case in
the first instance and the cancellation of bail already granted. In similar
situation where the High Court had cancelled the anticipatory bail granted by
the Sessions Judge in a dowry death case, this Court had observed that
rejection of bail in a non-bailable case at the initial stage and the
cancellation of bail had to be considered or dealt with on different basis.
Very cogent and overwhelming circumstances are necessary for an order directing
the cancellation of bail already granted, which, in our opinion, were missing
in the instant case.
was brought to our notice from which it could be inferred that the appellants
have not co-operated in the investigations or have, in any manner, abused the
concession of bail granted to them. As a 6 (1995) 1 SCC 349 2 matter of fact,
Mr. Naphade, learned senior counsel representing the State, stated that after
grant of anticipatory bail to the appellants, no investigation in the case has
For the foregoing reasons, in our judgment, the impugned order
setting aside the anticipatory bail granted to the appellants by the learned
Additional Sessions Judge, cannot be sustained. Accordingly, the appeals are
allowed; impugned order is set aside and the order dated 18th December, 2007
passed by the Additional Sessions Judge confirming the ad-interim anticipatory
bail to the appellants, is restored. It goes without saying that nothing said
by the High Court or by us hereinabove shall be construed as expression of any
opinion on the merits of the case.
Both the appeals stand disposed of, accordingly.
..................................J. (D.K. JAIN)
..................................J. (R.M. LODHA)
JULY 10, 2009.
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