IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CRIMINAL) …. CRLMP. NO(S) 23724

IN THE MATTER OF:

K.M.Hema Mishra ……Petitioner

Versus

State of U.P. & Ors. ……Respondent

A.K.Sikri, J.

1. Bail is broadly used to refer to the release of a person charged with an offence, on his

providing a security that will ensure his presence before the court or any other authority

whenever required. Krishna Iyer J., remarked that the subject of bail “….. Belongs to

the blurred area of criminal justice system and largely hinges on the hunch of the bench,

otherwise called judicial discretion. The Code1 is cryptic on this topic and the Court

prefers to be tacit, be the order custodial or not. And yet, the issue is one of liberty,

justice, public safety and burden of public treasury all of which insist that a developed

jurisprudence of bail is integral to a socially sensitized judicial process.”2

2. The law lexicon3 defines bail as the security for the appearance of the accused person on

which he is released pending trial or investigation .i.e., to procure the release of a person

from legal custody, by undertaking that he shall appear at the time and place designated

and submit himself to the jurisdiction and judgment of the court. The black’s law

dictionary defines bail as, To set at liberty a person arrested or imprisoned, on security

being taken for his appearance on a day and a place certain, which security is called

“bail,” because the party arrested or imprisoned is delivered into the hands of those who

bind themselves for his forthcoming, (that is, become bail for his due appearance when

required, in order that he may be safely protected from prison.4

3. In the Gita Lord Krishna said to Arjun :

Which means "for a self-respecting man, death is preferable to

dishonour". (See Gita 2: 34).

These words quoted from Gita, explain the mindset that we have as of now. If a person

has the apprehension that he might be arrested then he should have the right to demand

anticipatory bail, as the honor once lost is difficult to regain.

1 The code of criminal procedure 1973 ,herein after read as Cr.p.c2 Gudikanti Narasimhulu V. Public Prosecutor,  AIR 1978 SC 4303 Law lexicon by Ramanth Iyer, (3rd ed4 3 Black's Law Dictionary 177 (4th ed.)

4. Supreme Court Bench, headed by  the then Chief Justice Y V Chandrachud laid down

first  principles of granting anticipatory bail in the Gurbaksh Singh v. State of Punjab5,

reemphasizing that liberty… – ‘A person who has yet to lose his freedom by being

arrested asks for freedom in the event of arrest. That is the stage at which it is imperative

to protect his freedom, in so far as one may, and to give full play to the presumption that

he is innocent.’

5.  In Joginder Kumar v. State of U.P. and others, 1994 Cr LJ 1981, the Supreme Court

observed:

"No arrest can be made because it is lawful for the police officer to

do so. The existence of the power to arrest is one thing. 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. Arrest and detention in police lock-up of a person can cause

incalculable harm to the reputation and self esteem of a person. No

arrest can be made in a routine manner on a mere allegation of

commission of an offence made against a person. It would be

prudent for a police officer in the interest of protection of the

constitutional rights of a citizen and perhaps in his own interest

that no arrest should be made without a reasonable satisfaction

reached after some investigation as to the genuineness of a

complaint and a reasonable belief both as to the person's

complicity and even so as to the need to effect arrest."

6. Anticipatory bail under section 438, CrPC 1973 by its very nature is granted if the court

deems it fit. The use of expression “reasons to believe” shows that the apprehension of

the petitioner that he 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 someone is going to make an accusation

against him in pursuance of which he may be arrested. The jurisdiction of high court and

court of session under section 439, CrPC being concurrent, as matter of practice, the bail

applicants are required ordinarily to approach the court of sessions in the first instance

and if relief was denied, they approach the High Court under section 439 itself is not as a

superior court sitting in appellate or revisional jurisdiction over the order of the court of

session, but because the superior court can still exercise its own jurisdiction

independently unaffected by the result of exercise by the court of session because the

latter is an inferior court though vested with concurrent jurisdiction.

7. In our country unfortunately whenever an FIR of a cognizable offence is lodged the

police go and arrest the accused. This practice in our opinion is illegal as it is against the

decision of the Supreme Court in Joginder Kumar's case, and it is also in violation of

5 1980 Cri LJ417(P&H)

Article 21 of the Constitution as well as Section 157(1), CrPC gives a police officer

discretion to arrest or not, but this discretion cannot be exercised arbitrarily, and it must

be exercised in accordance with the principles laid down in Joginder Kumar's case

(supra). The view of Hon'ble Palok Basu, J. in this connection is hence clearly incorrect.

8. It may be mentioned that the provision for anticipatory bail has been deleted by an

amendment in U.P. It is well known that in U.P. criminal trials often take a long time and

hence the question arises is that if an accused is found innocent after this long interval

who will restore these five years or so of life to him if he is not granted bail?

9. It may be mentioned that a person's reputation and esteem in society is a valuable asset,

just as in civil law it is an established principle that goodwill of a firm is an intangible

asset. In practice, if a person applies for bail he has to surrender in Court, and normally

the bail application is put up for hearing after a few days and in the meantime he has to

go to jail. Even if he is subsequently granted bail or is acquitted, his reputation is

irreparably tarnished in society. Often false and frivolous FIRs are filed yet the innocent

person has to go to jail, and this greatly damages his reputation in society.

10. It is pertinent to explain the need for anticipatory bail. This type of bail is granted before

the arrest is affected. The object of this provision is to relieve a person from being

disgraced by trumped up charges so that liberty of the subject is not put in jeopardy on

frivolous grounds at the instance of the unscrupulous or irresponsible persons who may

be in charge of the prosecution.6 An order of anticipatory bail does not in any way,

directly or indirectly; take away for the police their right to investigate into charges made

or to be made against the person released on bail.

11. The purposes for which the provisions of anticipatory bail are made are quite obvious.

One of the purposes of the arrest is that the accused should be available to the

investigating machinery for further investigation and questioning whenever he is

required. Another purpose is that the trial should not be jeopardized and for this purpose

the restrictions on the movements of the accused are necessary.7 The genuineness of the

alleged need for police custody has to be examined and it must be balanced against the

duty of courts to upholdthe dignity of every man and to vigilasntly guard the right to

liberty without jeopardizing the state objective of maintenance of law and order.

12. The main object of section 438 of CrPC was to prevent undue harassment of the accused

persons by pre-trial arrest and detention. The fact, that a court has either taken cognizance

of the complaint or the investigating agency has filed a charge sheet, would not by itself,

in opinion of the Supreme Court, prevent the concerned courts from granting anticipatory

bail in appropriate cases. The gravity of offence is an important factor to be taken into

consideration while granting anticipatory bail. Section 438 of Cr PC is widely worded

and does not engraft any limitations on the power of the court in case a person who has

reason to believe that he may be arrested on an accusation of having committed a non-

bailable offence makes an application invoking the powers of the court for a direction

6 Vinod Tiwari (Dr.) v. State of M.P., 1995 JLJ 7817 State of Maharasthra v. Abdul Wahab, 1987 Mah LR 1003 (Bom).

granting anticipatory bail. Even so, the powers have to be exercised in a judicial manner

with the end in view that whilst the object of the provision is served the pitfalls inherent

in the situation are eschewed. The main purpose of anticipatory bail was to prevent

innocent persons for being unnecessarily harassed by being arrested in connection with

frivolous cases initiated by motivated persons.

13. Section 438 of CrPC is not applicable in the state of Uttar Pradesh. The U.P. legislature

having withdrew Section 438 by section 9 of the Criminal Procedure (Uttar Pradesh)

Amendment Act, 1976 in its application to the state of UP. A question arises whether

Article 226 of the constitution can be applied to give pre-arrest protection to an

individual.

14. It is pertinent to mention that an attempt was made to re-introduce section 438, Cr. P.C.

in the state of UP by the Criminal Procedure (Uttar Pradesh) Amendment Bill, 2010,

which had been passed by the state legislature and was reserved by the governor for

consideration of the president. In the absence of S.438 of Cr.P.C. a practice has

developed in U.P. where the high court grants protection to the accused from arrest in

non-bailable offences whenever one invokes article 226 of the constitution. The

applicability of Article 226 of the constitution was subject to a number of judgments in

this regard. Reference may be made to Satya Pal v. state of U.P (2000 Cri. L.J. 569),

Ajeet Singh v. State of U.P. (2007 Cri. L.J. 170) amongst others, wherein it has been

held that the stay of arrest as in interim measure is within the scope of article 226 of the

constitution of India.

15. In Maneka Gandhi v. Union of India. AIR 1978 SC 597 a Seven Judges Constitution

Bench held that the procedure to deprive a person of life or liberty must be fair,

reasonable and just. Thus the expression "procedure established by law" in Article 21 has

been judicially construed as meaning a procedure which is reasonable, fair and just.

Subsequent to Maneka Gandhi's case in a series of decisions the Supreme Court has

considerably expanded the scope of Article 21 of the Constitution, and has held that the

word 'life' in Article 21 means a life of dignity as a civilized human being and not just

animal survival.8

16. At the outset of this judgment I would like to reproduce certain paragraphs from Kartar

Singh and Ors. V. State of Punjab, wherein Justice K. Ramaswamy discussed the

importance of life and liberty.

a. The foundation of Indian political and social democracy, as

envisioned in the preamble of the Constitution, rests on justice,

equality, liberty, and fraternity in secular and socialist republic in

which every individual has equal opportunity to strive towards

excellence and of his dignity of person in an integrated egalitarian

Bharat. Right to justice and equality and stated liberties which

include freedom of expression, belief and movement are the means

8 [vide Francis Coralie Mullin v. Administrator, 1981 (1) SCC 608; Unnikrishnan v. State of A.P., JT 1993(1) SC 474; Sunil Batra v.

Delhi Administration, AIR 1978 SC 1675 and AIR 1980 SC 1579, etc.]

for excellence. The right to life with human dignity of person is a

fundamental right of every citizen for pursuit of happiness and

excellence. Personal freedom is a basic condition for full

development of human personality. . Article 21 of the Constitution

protects right to life which is the most precious right in a civilized

society. The trinity i.e. liberty, equality and fraternity always

blossoms and enlivens the flower of human dignity. One of the gifts

of democracy to mankind is the right to personal liberty. Life and

personal freedom are the prized jewels under Article 19 conjointly

assured by Articles 20(3), 21 and 22 of the Constitution and

Article 19 ensures freedom of movement. Liberty aims at freedom

not only from arbitrary restraint but also to secure such conditions

which are essential for the full development of human personality.

Liberty is the essential concomitant for other rights without which

a man cannot be at his best. The essence of all civil liberties is to

keep alive the freedom of the individual subject to the limitations of

social control envisaged in diverse articles in the chapter of

Fundamental Rights Part III in harmony with social good

envisaged in the Directive Principles in Part IV of the

Constitution. Freedom cannot last long unless it is coupled with

order. Freedom can never exist without order. Freedom and order

may coexist. It is essential that freedom should be exercised under

authority and order should be enforced by authority which is

vested solely in the executive. Fundamental rights are the 716

means and the directive principles are essential ends in a welfare

State. The evolution of the State from police State to a welfare

State is the ultimate measure and accepted standard of democratic

society which is an avowed constitutional mandate. Though one of

the main functions of the democratic Government is to safeguard

liberty of the individual, unless its exercise is subject to social

control, it becomes anti-social or undermines the security of the

State. The Indian democracy wedded to rule of law aims not only

to protect the fundamental rights of its citizens but also to establish

an egalitarian social order. The individual has to grow within the

social confines preventing his unsocial or unbridled growth which

could be done by reconciling individual liberty with social control.

Liberty must be controlled in the interest of the society but the

social interest must never be overbearing to justify total

deprivation of individual liberty. Liberty cannot stand alone but

must be paired with a companion virtue; liberty and morality;

liberty and law; liberty and justice; liberty and common good;

liberty and responsibility which are concomitants for orderly

progress and social stability. Man being a rational individual has

to live in harmony with equal rights of others and more differently

for the attainment of antithetic desires. This intertwined network is

difficult to delineate within defined spheres of conduct within

which freedom of action may be confined. Therefore, liberty would

not always be an absolute license but must arm itself within the

confines of law. In other words there can be no liberty without

social restraint. Liberty, therefore, as a social conception is a right

to be assured to all members of a society. Unless restraint is

enforced on and accepted by all members of the society, the liberty

of some must involve the oppression of others. If liberty be

regarded a social order, the problem of establishing liberty must

be a problem of organising restraint which society controls over

the individual. Therefore, liberty of each citizen is borne of and

must be subordinated to the liberty of the greatest number, in other

words common happiness as an end of the society, lest lawlessness

and anarchy will tamper social weal and harmony and powerful

courses or forces would be at work to undermine social welfare

and order. Thus the essence of civil liberty is to keep alive the

freedom of the individual subject to the limitation of social control

which could be adjusted according to the needs of the dynamic

social evolution.

b. The modem social evolution is the growing need to keep individual

to be as free as possible, consistent with his correlative obligation

to the society. According to Dr Ambedkar in his closing speech in

the Constituent Assembly, the principles of liberty, equality and

fraternity are not to be treated as separate entities but in a trinity.

They form the union or trinity in the sense that to divorce one from

the other is to defeat the very purpose of democracy. Liberty

cannot be divorced from equality. Equality cannot be divorced

from liberty. Nor can equality and liberty be divorced from

fraternity. Without equality, liberty would produce supremacy of

law. Equality without liberty would kill individual initiative.

Without fraternity, liberty and equality would not become a natural

course of things. Courts, as sentinel on the qui vive, therefore must

strike a balance between the changing needs of the society for

peaceful transformation with orders and protection of the rights of

the citizen. (Para 374)

17. In my opinion, Justuce K. Ramaswamy was right in his approach when he

stated that the High Courts under Article 226 had the right to entertain writ

petitions for quashing of FIR and granting of interim protection from

arrest. And also discuss the scope of article 226 of the constitution.

Justice K. Ramaswamy, in Kartar Singh & ors v. State of Punjab (para

427):

From this scenario, the question emerges whether the High Court

under Article 226 would be right in entertaining proceedings to

quash the charge-sheet or to grant bail to a person accused of an

offence under the Act or other offenses committed during the

course of the same transaction exclusively triable by the

Designated Court. Nothing is more striking than the failure of law

to evolve a consistent jurisdictional doctrine or even elementary

principles, if it is subject to conflicting or inconceivable or

inconsistent result which lead to uncertainty, incongruity and

disbelief in the efficacy of law. The jurisdiction and power of the

High Court under Article 226 of the Constitution is undoubtedly

constituent power and the High Court has untrammeled powers

and jurisdiction to issue any writ or order or direction to any

person or authority within its territorial jurisdiction for

enforcement of any of the fundamental rights or for any other

purpose. The legislature has no power to divest the court of the

constituent power engrafted under Article 226. A superior court is

deemed to have general jurisdiction and the law presumes that the

court has acted within its jurisdiction. This presumption is denied

to the inferior courts. The judgment of a superior court

unreservedly is conclusive as to all relevant matters thereby

decided, while the judgment of the inferior court involving a

question of jurisdiction is not final. The superior court, therefore,

has jurisdiction to determine its own jurisdiction, may be rightly or

wrongly. Therefore, the court in an appropriate proceeding may

erroneously exercise jurisdiction. It does not constitute want of

jurisdiction, but it impinges upon its propriety in the exercise of the

jurisdiction. Want of jurisdiction can be 747 established solely by

a superior court and that in practice no decision can be impeached

collaterally by an inferior court. However, acts done by a superior

court are always deemed valid wherever they are relied upon. The

exclusion thereof from the rule of validity is indispensable in its

finality. The superior courts, therefore, are the final arbiters of the

validity of the acts done not only by other inferior courts or

authorities, but also their own decisions. Though they are immune

from collateral attack, but to avoid confusion the superior court's

decisions lay down the rules of validity; are not governed by those

rules. The valid decision is not only conclusive, it may affect, but it

is .also conclusive in proceedings where it is sought to be

collaterally impeached. However, the term conclusiveness may

acquire other specific meanings. It may mean that the finding upon

which the decision is founded as distinct or it is the operative part

or has to be conclusive or these findings bind only parties on

litigated disputes or that the organ which has made the decision is

itself precluded from revoking, rescinding or otherwise altering it.

18. It would be pertinent to mention here that in light of above mentioned statements and

cases, the High Court would not be incorrect or acting out of jurisdiction if it exercises

its power under Article 226 to issue appropriate writ or direction or order in exceptional

cases at the behest of a person accused of an offence triable under the Act or offence

jointly triable with the offenses under the Act.

19. It is pertinent to mention here that article 20 and 21 of the constitution are not suspended

even during emergency and a person can invoke extra-ordinary jurisdiction of the courts

under article 226 or 32 as the case may be to seek protection from arbitrary arrest and

detention. Reference may be made to Additional District Magistrate, Jabalpur v.

Shivakant Shukla9.

20. The high court enjoys a wide power under article 226 of the constitution, the apex court

in the case of U.P. State Cooperative Land Development Bank Ltd. v. Chandra

Bhan Dubey & Ors.10, held that no limit could be put on the jurisdiction of high courts.

When any citizen or person is wronged, the high court will step in to protect him, be that

be a wrong done by the state, an instrumentality of the state, a company, or a

cooperative society, or association or body of individuals, whether incorporated or not,

or even an individual. Similarly the high court of Allahabad is not erred in granting

interim relief to the persons who file writ petitions against quashing of FIR, if the basic

elements of the case have been construed closely.

21. It is pertinent to mention here that the provision of anticipatory bail shall be re-

introduced in the state of U.P. so as to deter the people from taking recourse to article

226, thereby reducing pressure and burden on courts, which are anyways burdened with

pendency. If the provision is not re-introduced then the recourse taken by people, i.e.

filing a writ petition under article 226, is correct and cannot be disputed. The importance

of anticipator bail has already been discussed above and for sake of brevity is not being

reproduced herein.

22. It is pertinent to mention that though the High Courts have very wide powers under

Article 226, the very vastness of the powers imposes on it the responsibility to use them

with circumspection and in accordance with the judicial consideration and well

9 (1976) 2 SCC 521 : AIR 1976 SC 120710 AIR 1999 SC 753

established principles, so much so that while entertaining writ petitions for granting

interim protection from arrest, the court does not go on to the extent of including the

provision of anticipatory bail as a blanket provision.

23. It may be noted that the power of quashing the criminal proceedings has to be exercised

very cautiously, though the court in my opinion would be justified in embarking upon

an enquiry as to the reliability or genuineness or otherwise of allegations made in the

F.I.R. or complaint. The provisions of Article 226, are a device to advance justice and

not to frustrate it, it must be exercised to prevent the miscarriage of justice and to

prevent the abuse of process of law by the authorities.

Note: one or two points still left. Need to discuss with you sir.