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Report No. 87

6. Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565 (586).

In this case, the Supreme Court, while determining the scope of section 438 of Code of Criminal Procedure, 1973 (anticipatory bail) and while discussing the question how best to balance the interests of personal liberty and the investigative powers of the police, said that section 438 was a procedural provision 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. The right to personal freedom cannot be made to depend on compliance with unreasonable restrictions1.

The beneficent provision contained in section 438 must be saved, not jettisoned. After the decision in Maneka Gandhi's case, no doubt can survive that in order to meet the challenge of Article 21, the procedure "established by law" for depriving a person of his liberty must be fair, just and reasonable.

1. Emphasis added.

Identification of Prisoners Act, 1920 Back

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