Hon'ble KOTHARI, J. - (1.) HEARD learned counsel for the parties.
(2.) THIS application has been filed on behalf petitioner for modification of the order dated 25.1.2011 granting anticipatory bail. By way of this application, the applicant petitioner has prayed for deleting the condition imposed in the order dated 25.1.2011, which reads as under: "The applicant will surrender before the trial Court on the date of filing of challan and move a regular bail." Learned counsel for the petitioner relying on the decision of Hon'ble the Supreme Court in the case of Siddharam Satlingappa Mhetre vs. State of Maharashtra & Ors., reported in 21 2010: AIR 2011 SC 312, submitted that the said condition deserves to be deleted. The Hon'ble Supreme Court in the aforesaid case over -ruling the previous decision in the case of Salauddin Abdulasamad Shaikh vs. State of Maharashtra, reported in (1996) 1 SCC 667 and following the earlier Constitution Bench decision in the case of Gurbaksh Singh Sibbia & Ors. vs. State of Punjab reported in : (1980) 2 SCC 565, held as under: 100. The Constitution Bench in the same judgment also observed that a person seeking anticipatory bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints and conditions on his freedom, by the acceptance of conditions which the court may deem fit to impose, in consideration of the assurance that if arrested, he shall enlarged on bail. 101. The proper course of action ought to be that after evaluating the averments and accusation available on record if the court is inclined to grant anticipatory bail then an interim bail be granted and notice be issued to the public prosecutor. After hearing the public prosecutor the court may either reject the bail application or confirm the initial order of granting bail. The court would certainly be entitled to impose conditions for the grant of bail. The public prosecutor or complainant would be at liberty to move the same court for cancellation or modifying the conditions of bail any time if liberty granted by the court is misused. The bail granted by the court should ordinarily be continued till the trial of the case. 103. The order granting anticipatory bail for a limited duration and thereafter directing the accused to surrender and apply before a regular bail is contrary to the legislative intention and the judgment of the Constitution Bench in Sibbia's case (supra). 105. The court which grants the bail has the right to cancel the bail according to the provisions of the General Clauses Act but ordinarily after hearing the public prosecutor when the bail order is confirmed then the benefit of the grant of the bail should continue till the end of the trial of that case. 106. The judgment in Salauddin Abdulsamad Shaikh (supra) is contrary to legislative intent and the spirit of the very provisions of the anticipatory bail itself and has resulted in an artificial and unreasonable restriction on the scope of enactment contrary to the legislative intention. 107. The restriction on the provision of anticipatory bail under Section 438 Code of Criminal Procedure limits the personal liberty of the accused granted under Article 21 of the Constitution. The added observation is nowhere found in the enactment. It would not stand the test of fairness and reasonableness which is implicit in Article 21 of the Constitution after the decision in Maneka Gandhi's case (supra) in which the court observed 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. 108. Section 438 Code of Criminal Procedure has not mention anything about the duration to which a direction for release on bail in the event of arrest can be granted. The order granting anticipatory bail is a direction specifically to release the accused on bail in the event of his arrest. Once such a direction of anticipatory bail is executed by the accused and he is released on bail the concerned court would be fully justified in imposing conditions including direction of joining investigation. 109. The court does not use the expression 'anticipatory bail' but it provides for issuance of direction for the release on bail by the High Court or the Court of Sessions in the event of arrest. According to the aforesaid judgment of Salauddin's case, the accused has to surrender before the trial court and only thereafter he/she can make prayer for grant of bail by the trial Court. The trial Court would release the accused only after he has surrendered. 110. In pursuance to the order of the Court of Sessions or the High Court, once the accused is released on bail by the trial Court, then it would be unreasonable to compel the accused to surrender before the trial Court and again apply for regular bail. 111. The court must bear in mind that at time the applicant would approach the court for grant of anticipatory bail on mere apprehension of being arrested on accusation of having committed a non -bailable offence. In fact, the investigating or concerned agency may not otherwise arrest that applicant who has applied for anticipatory bail but just because he makes an application before the court and gets the relief from the court for a limited period and thereafter he has to surrender before the trial Court and only thereafter his bail application can be considered and life of anticipatory bail comes to an end. This may lead to disastrous and unfortunate consequences. The applicant who may not have otherwise lost his liberty loses it because he chose to file application of anticipatory bail on mere apprehension of being arrested on accusation of having committed a non -bailable offence. No arrest should be made because it is lawful for the police officer to do so. The existence of power to arrest is one thing and the justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so. This finding of the said judgment (supra) is contrary to the legislative intention and law which has been declared by a Constitution Bench of this Court in Sibbia's case (supra). 112. The validity of the restrictions imposed by the Apex Court, namely, that the accused released on anticipatory bail must submit himself to custody and only thereafter can apply for regular bail. This is contrary to the basic intention and spirit of Section 438 Code of Criminal Procedure. It is also contrary to Article 21 of the Constitution. The test of fairness and reasonableness is implicit under Article 21 of the Constitution of India. Directing the accused to surrender to custody after the limited period amounts to deprivation of his personal liberty. 113. It is settled legal position crystallized by the Constitution Bench of this Court in Sibbia's case (supra) that the courts should not impose restrictions on the ambit and scope of Section 438 Code of Criminal Procedure which are not envisaged by the legislature. The court cannot rewrite the provisions of the statute in the garb of interpreting it. 115. The Apex Court in Salauddin's case (supra) held that anticipatory bail should be granted only for a limited period and on the expiry of that duration it should be left to the regular court to deal with the matter is not the correct view. The reason quoted in the said judgment is that anticipatory bail is granted at a stage when an investigation is incomplete and the court is not informed about the nature of evidence against the alleged offender. 116. The said reason would not be right as the restriction is not seen in the enactment and bail orders by the High Court and Sessions Court are granted under Sections 437 and 438 also at such stages and they are granted till the trial. 117. The view expressed by this Court in all the above referred judgments have to be reviewed and once the anticipatory bail is granted then the protection should ordinarily be available till the end of the trial unless the interim protection by way of grant of anticipatory bail is our tailed when the anticipatory bail is our tailed when the anticipatory bail granted by the court is cancelled by the court on finding fresh material or circumstances or on the ground of abuse of indulgence by the accused." The Hon'ble Supreme Court in the case of Shri Gurbaksh Singh Sibbia & Ors. vs. State of Punjab, reported in (1980) 2 SCC 565 in para 42 of the judgment had laid down that operation of order passed under Section 438(1) need not be necessarily limited in the point of time. The Court may, if there are reasons for doing so, limit the operation of the order to a short period until after filing of an 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 reasonably short period after the filing of the FIR as aforesaid. But this need not be followed as an invariable rule. The normal rule should be not to limit the operation of the order in relation to a period of time. The relevant discussion made in para Nos. 35 to 43 of the said judgment are reproduced herein below for ready reference: "35. Section 438 (1) of the Code lays down a condition which has to be satisfied before anticipatory bail can be granted. The applicant must show that he has "reason to believe" that he may be arrested for a non -bailable offence. The use of 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 "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 a non -bailable offence, 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 arrest. Otherwise, the number of applications for anticipatory bail will be as large as, at any rte, the adult populace. Anticipatory bail is a device to secure the individual's liberty; it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations, likely or unlikely. 36. 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 Code, as and when an occasion arises. Such a course will defeat the very object of Section 438. 37. 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 FIR is not yet filed. 38. Fourthly, anticipatory bail can be granted even after an FIR is filed, so long as the applicant has not been arrested. 39. 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 under arrest involves a contradiction in terms, insofar as the offence or 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 offence of offences for which he is arrested. 40. We have said that there is one proposition formulated by the High Court with which we are inclined to agree. That is proposition (2). We agree that a 'blanket order' of anticipatory bail should not generally 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 believe" that he may be arrested. A belief can be said to 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." That is what is meant by a 'blanket order' of anticipatory bail, an order which serves as 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 Sec. 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 applicant to draw up his application 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 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. 41. Apart from the fact that the very language of the statute compels this construction, 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 them can be avoided. A blanket order of anticipatory bail is bound to cause serious interference 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 applicant and when, an order of bail which comprehends allegedly unlawful activity of any description whatsoever, will prevent the police from arresting the applicant even if he commits, say, a murder in the presence of the public. Such an order can then become a charter of lawlessness and a weapon to stifle prompt investigation into offences which could not possible be predicated when the order was passed. Therefore, the court which grants anticipatory bail must take care to specify the offence or offences in respect of which alone the order will be effectively. The power should not be exercised in a vacuum. 42. 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 passed under the 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 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 section 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, if there are reasons for doing so, limit the operation of the order to a short period until after the filing of an 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 reasonably short period after the filing of the FIR as aforesaid. But this need not be followed as an invariable rule. The normal rule should be not to limit the operation of the order in relation to a period of time. 43. During the last couple of years this Court, while dealing with appeals against orders passed 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 Section 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 FIR in respect of matters covered by the order. These orders, on the whole, have worked satisfactorily, causing the least inconvenience to the individuals concerned and least interference with the investigational rights of the police. The court has attempted 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 have long since been released by this Court under Section 438(1) of the Code." The Full Bench of Madras High Court in the case of Palanikumar & nr. vs. State reported in 1 (2008) CCR 234 (FB) also discussed this issue and as submitted by Mr. Suresh Kumbhat, Amicus Curiae, the Court held that the onstitution Bench's decision in the case of Gurbakash Singh Sibbia's case (1980) 2 SCC 565) will prevail over the later five decisions of the Supreme ourt, which expressed the view to the contrary as held in the case of Salauddin Abdulasamad Shaikh ((1996) 1 SCC 667) and thus answered the reference in the following terms: "8A. From a reading of the judgments of the Supreme Court last referred to above, it is clear that the High Court has to follow the procedure indicated therein. If that procedure is followed, then this Court has no doubt at all that it has to follow the Constitution Bench judgment of the Supreme Court reported in Shri Gurubaksh Singh Sibbia vs. State of Punjab 1980 SCC (Cri.) 465. The Supreme Court in Gurubakash Singh Sibbia's case had emphasized that the normal rule should be not to limit the operation of the order in relation to period of time. Paragraph Nos. 40, 41 and 42 in Gurubaksh Singh Sibbia's case, in our respectful opinion, should be understood in the context of reason No. 2 mentioned in that judgment, which weighted with the Punjab & Haryana High Court. The reason given therein is whether a blanket anticipatory bail order could be granted for offences not yet committed or with regard to the accusations not so far levelled. In Gurubaksh Singh Sibbia's case, the Supreme Court had also highlighted as to what is meant by blanket order. Under these circumstances we hold that the High Court and the Court of Sessions in this State should have the principles enumerated in Gurubaksh Singh Sibbia's case and in particular paragraph 42 of the judgment whenever an Application under Section 438 of the Code of Criminal Procedure comes up for consideration. 9. The Reference is, therefore, answered as hereunder: "The High Court and the Court of Sessions in this State has to follow the Constitution Bench judgement of the Supreme Court reported in Gurubaksh Singh Sibbia's case, 1980 SC (Cri.) 465: (1980) 2 SCC 565 in preference to the judgments of the Supreme Court reported in Salauddin's case, (1996) SC (Cri.) 198; K.L. Verma's case. 1998 SCC (Cri.) 1931; Sunitha Devi's case, 2005 SCC (Cri.) 435; Adri Dharan Das' case, 2005 SCC (Cri.) 933, and D.K. Ganesh Babu's case, (2007) 1 MWN (Cri.) 170 (SC)." In view of aforesaid recent decisions of the Apex Court, the condition imposed in the order dated 25.1.2011 granting anticipatory bail to the petitioner deserves to be deleted. However, in view of law laid down by the Apex Court, it is also be kept in mind that if the anticipatory bail is granted during the investigation; and during such investigation, if the investigating agency/officer comes to the conclusion that a more serious or graver offence is committed by the petitioner, who has been given such liberty or bail, then not only the prosecution will be liberty to apply to the concerned Court for cancellation of bail of the petitioner but in such cases, the Court can also impose such further conditions in such order granting anticipatory bail as considered appropriate, as held in para 42 of Sibbia's judgment (supra) by the Apex Court. It is needless to add that cancellation of bail can be applied by the prosecution or any other concerned person including the complainant even if the person given such liberty or bail misuses such liberty or does not comply with other usual conditions imposed as enumerated in Section 438, Cr.PC., and such misuse or abuse is brought to the notice of the Court.
(3.) ACCORDINGLY, the present criminal misc. application seeking modification in the order by deleting the aforesaid condition is allowed and the condition, as reproduced above, mentioned in the order dated 25.1.2011 (supra) is deleted. However, the prosecution/complainant will be liberty to apply for cancellation of bail in appropriate circumstances, as indicated above.;