Practice Of Limiting The
Duration Of Anticipatory Bail And Obtaining Regular Bail Within The Said
Duration Uniformly In All Cases- Not Supported By Law.
By
Asim
Pandya[1]
Section 438 of the Criminal Procedure Code, 1973
(hereafter in short referred to as “Cr.PC) 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 power of the court
to grant anticipatory bail is very wide. Parliament has in its wisdom not
circumscribed the power to grant anticipatory bail and left it to the
discretion of the judge. The power to grant anticipatory bail can be exercised
at any stage of investigation. It can be exercised even after the submission of
the charge-sheet. In other words as long as the person having a reasonable
belief that he might be arrested with reference to any non-bailable offence is
not arrested; his application for anticipatory bail can be entertained. It is
pertinent to note that while enacting S.438 Cr.PC, Parliament has not provided
that the duration of anticipatory bail should be limited in point of time or
that the anticipatory bail is of a transient nature until regular bail is
obtained. Further, the language of S.438 Cr.PC is absolutely clear and it does
not leave room for applying the principles of statutory interpretation.
S.438(2) Cr.PC permits the High Court or the Sessions Court to include such conditions in the order granting
anticipatory bail in the light of the
facts of the particular case as it may think fit including other general
conditions provided in that Sub-section. Thus, no condition of universal application
can be prescribed by judicial interpretation. Despite the unequivocal language of
S.438 Cr.PC, courts have since the year 1996 evolved a uniform procedure of
limiting the duration of anticipatory bail and the requirement of obtaining
regular bail during the said limited duration. This practice has as such no
legal sanction. How this practice got back-door entry in the judge made law has
been discussed in detail in this article. This article also suggests an
alternate procedure that strikes just balance between the personal liberty of a
person and the privilege of the investigation officer to investigate crime
without any judicial interference.
1. Anticipatory bail has all
legal consequences and effects of “bail” as understood
in law:
The expression 'anticipatory bail' has not been
defined in the Code. But as observed in Balchand Jain v. State of M.P.
2. Different stages at which
anticipatory bail can be granted:
The 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 founded on a reasonable belief is sufficient even if an FIR
is not filed for moving an application for anticipatory bail. Anticipatory bail
can be granted even after FIR is filed so long as the applicant is not
arrested. Anticipatory bail can be granted even after filing of the
charge-sheet or taking cognizance by the court. Rrefer to Bharat Chaudhary v.
State of Bihar
Thus, there are broadly above mentioned three stages
where an application for anticipatory bail is usually filed. The 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. The order that can be passed in the event anticipatory
bail is to be granted would differ depending
upon the stage at which such bail is granted.
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 which
must enter into the judicial verdict.[9]
3. Limited duration of
anticipatory bail and the requirement of obtaining regular bail within the said
duration- a procedure not envisaged by law:
(3.1) Plain and literal interpretation of Section 438:
It is a golden rule of statutory interpretation that
when the language of a particular statutory provision is clear, such provision
should be interpreted in its plain and natural sense except where the plain and
natural interpretation leads to absurdity.
The rule stated by Tindal, C.J. in Sussex Peerage case[10],
still holds the field. The aforesaid rule is to the effect:
"If the words of the statute are in
themselves precise and unambiguous, then no more can be necessary than to
expound those words in their natural and ordinary sense. The words themselves
do alone in such cases best declare the intent of the lawgiver."
Recourse to construction or interpretation of statute
is necessary when there is ambiguity, obscurity, or inconsistency therein and
not otherwise…True meaning of a provision of law has to be determined on the
basis of what provides by its clear language, with due regard to the scheme of
law. Scope of the legislation on the intention of the legislature cannot be
enlarged when the language of the provision is plain and unambiguous. In other
words statutory enactments must ordinarily be construed according to its plain
meaning and no words shall be added, altered or modified unless it is plainly
necessary to do so to prevent a provision from being unintelligible, absurd,
unreasonable, unworkable or totally irreconcilable with the rest of the
statute.[11]
The plain and literal meaning of S.438 does
not provide for obtaining bail twice that is to say first anticipatory bail and
then regular bail. By no canon of interpretation such a procedure of universal
application can be read in to the provisions of S.438.
(3.2) Gurubaksh Singh’s case para 38 and 39:
In Gurubaksh Singh v. State of Punjab[12]
case a Constitutional Bench of the Supreme Court disapproved imposition of
unnecessary restrictions on the scope of the Section 438, 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.[13]
The Supreme Court in paragraph 38 of Gurubaksh Singh’s
case ibid made it clear that the
operation of anticipatory bail should not ordinarily be limited in point of
time. The relevant observations made by the court are extracted hereunder:
"38. 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 F.I.R.
in respect of the matter covered by the order. The applicant may in such cases
be directed to obtain an order of bail under S.437 or 439 of the Code within a
reasonably short period after the filing of the F.I.R. 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.
39. 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 S.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 S.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 F.I.R.
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. "
(Emphasis of the writer)
Paragraph 38 of the judgment of the Supreme Court of
India in Gurubaksh Singh’s case makes it abundantly clear that the normal rule
in respect of the order of anticipatory bail is not to limit its operation in
relation to a period of time. The court in that case had considered the issue
of filing an application for anticipatory bail even prior to the filing of FIR.
In that context the court said that if the court granting anticipatory bail
finds reason to do so it can limit the duration of the order of anticipatory
bail up to specified period from the filing of FIR. The said observations do
not apply to cases where anticipatory bail is granted after filing of FIR. In
paragraph 39 of the said decision the Supreme Court has merely taken note of
the practice adopted by the Supreme Court in some cases. The observation in the
said paragraph is not the law enunciated by the court and it cannot be exalted
to the status of precedent.
(3.3)Practice prevailing in Gujarat
High Court post Somabahi’s case and the effect of Gurubaksh Singh’s case on the
said practice:
In order to strike a proper balance between the
personal liberty of an individual and the rights of investigation officer, the
Gujarat High Court had evolved the procedure of limiting the duration of
anticipatory bail in Somabahi Chaturbhai Patel v. State[14].
In that case the court held:
“The order for anticipatory bail would not
be allowed to come in the way of a fuller consideration of the question when
the investigation is complete. The order may therefore provide that it will
exhaust itself on or will remain operative only till the expiry of say ten days
from the date of the arrest and the accused will have to obtain a fresh order
in usual course…To avoid complications, instead of passing an order of
unlimited duration the order may provide that it will become inoperative if no
arrest is made say within 90 days of the order.”
The judgments of various High Courts prior to the year
1977 show that the duration anticipatory bail orders was not ordinarily limited
in point of time. In the year 1977 only the High Court of Gujarat in Somabhai
Chaturbhai Patel v. State stressed the desirability of limiting the duration of
anticipatory bail up to certain time period. However, in view of the judgment
of the Supreme Court of India in Gurubaksh Singh v. State of Punjab
From the year 1974 until year 1996 hardly there was
any court except the Gujarat High Court that had limited the duration of
anticipatory bail in usual course. The courts never insisted the accused to
obtain regular bail during the limited duration of anticipatory bail during
those years.
(3.4) Pre Salauddin scenario in different high courts
and the Supreme Court
After Gurubaksh Singh’s case ibid and before the year
1996 i.e. prior to the decision of the Supreme Court in Salauddin Abdulsamad
Shaikh v. State of Maharashtra India
“It is clear that while it is not obligatory for the High Court
to limit an order of anticipatory bail in point of time, there is no
prohibition in Section 438 of the Code for imposing such condition also. Therefore, the question as to whether
anticipatory bail should be limited in point of time, is a matter to be
considered by the Court in each case
having due regard to the importance of the personal freedom of the individual
and the public duty and power of the Police to investigate into an offence
fully which is in public interest, which is equally important.”
This judgment has also noted that it is not obligatory
for the high court to limit the duration of anticipatory bail in every case. In
a given case it may become necessary to impose such a condition but it does not
justify imposition of that condition uniformly in all cases.
(3.5)Post Salauddin distortions:
The practice of limiting the duration of anticipatory bail
got backdoor entry inadvertently when the Supreme Court while disposing of SLP
in the case of Salauddin’s case made the following observations:
“Anticipatory bail is granted in
anticipation of arrest in non-bailable cases, but that does not mean that
the regular court which is to try the offender is to be bypassed. It is
therefore, necessary that such anticipatory bail orders 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 an appreciation of evidence placed before it
after the investigation has made progress or the chargesheet is submitted.”
If the entire order in Salauddin’s case is read it
shows that some observations were made by the Supreme Court on the provisions
of Section 438 of CrPC while disposing of the Special Leave Petition. These
observations have unfortunately become the law of the land inadvertently. The
following underlined observations have no statutory support or backing of any
judicial pronouncement.
“Anticipatory bail is granted in
anticipation of arrest in non-bailable cases, but that does not mean that
the regular court which is to try the offender is to be bypassed.”
In Gurubaksh Singh’s case no where it is stated that
after obtaining anticipatory bail, the person in whose favour such an order is
passed will have to approach under Section 439 for regular bail except in the
cases where a person approaches the High court or the Sessions Court at pre-FIR
stage. Neither the Report of the Law Commission which recommended provision for
anticipatory bail to be introduced in the statute nor the objects and reasons
for introducing this provision provides such a procedure to be followed. In
Salauddin’s case the Supreme Court without referring to the constitutional
bench’s judgment in Gurubaksh Singh made the above quoted observations. These
observations are per incurium and
secondly they were made while disposing of SLP without detail arguments on the
subject. It is therefore doubtful if the said observations would constitute a precedent
within the meaning of Article 141 of the Constitution.
It has been held in Union of India v. Manik Lal
Banerjee[18]
that:
“Only because this Court dismissed the
special leave petition, the same would not mean that any law within the meaning
of Article 141 of the Constitution was laid down thereby. It is well-settled
that a decision is an authority for what it decides and not what can logically
be deduced therefrom.”
It appears that the above observations have been made
by the bench headed by a Judge who was elevated from Gujarat High Court who
carried the impression that the duration of anticipatory bail should be limited
due the law laid down in the case of Somabahi Cahaturbahi Patel v State supra. K.L.Varma’s judgment was also
rendered by the bench headed by the same Judge.
In K.L.Varma v. State[19]
the Supreme Court said:
“An order of anticipatory bail does not
enure till the end of the trial but it must be of limited duration as the
regular court cannot be bypassed. The 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 regular court for bail and to give regular court
sufficient time to determine the bail application. In other words, till the
bail application is disposed of one way or the other the Court may allow the
accused to remain on anticipatory bail. To put it differently, anticipatory
bail may be granted for a duration which may extend to the date on which the
bail application is disposed of or even
a few days thereafter to enable the accused persons to move the higher Court,
if they so desire.”
In fact, after the Constitution Bench Judgment in
Guraubaksh Singh’s case the entire law on the subject stood clarified and hence
the law enunciated in Somabhai’s case did not hold the field when observations
were made in Salauddin’s case. Thus, the decision in Salauddin case was
undoubtedly per incuriam. Rule of per incuriam can be applied where a Court
omits to consider a binding precedent of the same Court or the superior Court
rendered on the same issue or where a Court omits to consider any statute while
deciding that issue.[20]
Once a decision has been held to have been rendered per incuriam, it cannot be said to have laid down a good law.
"Incuria" literally means "carelessness". In practice per
incuriam is taken to mean per ignoratium. English Courts have developed this
principle in relaxation of the rule of stare
decisis. The "quotable in law", as held in Young v. Bristol
Aeroplane Co. Ltd.[21],
is avoided and ignored if it is rendered, "in ignoratium of a statute or other binding authority".
Same has been accepted, approved and adopted by the Supreme Court while
interpreting Article 141 of the Constitution of India, 1950 which embodies the
doctrine of precedents as a matter of law. To perpetuate an error is no
heroism. To rectify it is the compulsion of the judicial conscience.[22]
"It is revolting", wrote Mr. Justice Holmes in characteristically
forthright language, "to have no better reason for a rule of law than it
was so laid down in the time of Henry IV. It
is still more revolting if the grounds upon which it was laid down have
vanished long since, and the rule simply persists from blind imitation of
the past". The doctrine of stare decisis should not deter the
Court from overruling an earlier decision, if it is satisfied that such
decision is manifestly wrong or proceeds upon a mistaken assumption in regard
to the existence or continuance of a statutory provision or is contrary to
another decision of the Court. It was Jackson, J. who said in his dissenting
opinion in Massachusetts United States
The Supreme Court and other high courts are bound by
the decision of the Constitution Bench in Gurubaksh singh’s case. However,
almost all the courts have failed to take note of paragraph 38 and 39 while
limiting the duration of anticipatory bail.
In Sallauddin’s case the SC said that the regular
court which is to try cannot
be bypassed. These observations are made in perfunctory manner without
appreciating that the court trying the case is not necessarily the court
legally entitled to grant bail. Sessions
Courts and High Courts have also concurrent jurisdiction to exercise the bail
jurisdiction. Thus, it does not stand to logic as to why a Sessions Court or a
High Court exercising power of anticipatory bail is not considered as regular
court? It appears that by the said
observations the court meant that the provision of regular bail could not be
bypassed.
Subsequent judgments of the Supreme Court in the cases
of Nirmal Jeet Kaur, Sunita Devi and Adri Dharan Dass infra have rather than clarifying the law on the subject multiplied
the confusion as in those cases the Supreme Court has relied upon Salauddin’s
case. In these cases though apparently the court tried to clarify the concept
of “custody” in the context of S.439, has not clearly answered as to whether
person on anticipatory bail could be said to be in “custody” for the grant of
regular bail under S.439. The Court did not approve the observations of the
Supreme Court in K.L.Varm’s case to the effect that protection granted by
anticipatory bail can be even continued for some days after the rejection of
regular bail. Therefore, Nirmal Jeet Kaur’s case and Sunita Devi’s case must be
understood in the light of the above said observations disapproving K.L.Verma’s
case. The judgment in the case of Sunita Devi cannot be read to have laid down
the law that before entertaining regular bail application within the limited
duration of anticipatory bail, the person released on anticipatory bail must
surrender himself to the court. In writer’s view the person released on
anticipatory bail is to be presumed in the constructive custody of the court
that grants such bail.
In Nirmal Jeet Kaur v. State of MP
The decision in Nirmal Jeet Kaur’s case was followed
in Sunita Devi’s case though strictly no such issue was there in Sunita Devi’s
case. In Sunita Devi v. State of Bihar
“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… 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 upto higher Courts, the requirements of Section 439 become dead
letter. No part of a statute can be rendered redundant in that manner…
Therefore the order of the High Court granting unconditional protection is clearly untenable and is set
aside. However the petitioner is granted a month's time from today to apply for
regular bail after surrendering to custody before the concerned Court which
shall deal with the application in accordance with law.”
It is necessary to note that in Sunita Devi’s case the
High Court had not granted the blanket order. The persons were released on
anticipatory bail in connection with Sirdala P.S Case No. 15/2002 subject to
the conditions laid down in S438(2). The operation of the anticipatory bail in
the said case was not limited in point of time as that was not the requirement
of law. On the contrary the order of the High Court was in tune with paragraph
38 of Gurubaksh Sing’s case. In para 23 of Sunita Devi’s case the court said
that granting of unconditional protection was untenable. This led other courts
to believe that if anticipatory bail is not limited in point of time, it would
be termed as an unconditional or a blanket order. What a distortion of the clear law? For instance of such distortion
refer to the recent decision of the Supreme Court in HDFC v. J.J. Mannan.[27]
Unfortunately many paragraphs form the
judgment in Nirmal Jeet Kaur’s case were reproduced in Sunita Devi’s decision.
Same paragraphs from Sunita Devi’s case have been reproduced in Adri Dharan Das
v. State of WB AIR 2005 SC 1057, Naresh Kumar Yadav AIR 2005 SC 218, D.K
.Ganesh Babu AIR 2007 SC 1450, Parvinderjit Singh v. State (U. T. Chandigarh)
AIR 2009 SC 502, Vaman Narain Ghiya v. State of Rajasthan AIR 2009 SC 1362. The
above stated reproduction of paragraphs from earlier judgments was out of
context in almost each case. A close reading of the facts of each of the above
referred cases will show that the reproduction of paragraphs form previous
judgments was uncalled for and besides the point in issue. This type of
verbatim reproduction of paragraphs from previous judgments in mechanical
manner has blurred the clear law.
4. Initial anticipatory bail
should be of interim nature only-a new procedure suggested:
In fact Madhya Pradesh High Court in Ramsewak v. State of M. P.
“Again there is nothing in Sec. 438 of the
Code to suggest that the order of anticipatory bail shall be effective up to a
particular stage or till the filing of challan. As soon as a person is enlarged
on bail on the directions of anticipatory bail order, granted under Section
438, it would be deemed by implication as if the bail was granted under Section
437 (1) of the Code. Consequently, the bail shall be effective till the
conclusion of trial, unless it is cancelled by the Court taking action under
Section 437 (5) or under Section 439 (2) of the Code on the grounds known to
law and filing of challan in the Court is by itself no ground to cancel the
bail…The words of sub-secs. (1) and (3) of Sec. 438 of the Code are clear and
unambiguous. That being so, according to the elementary rule of interpretation
of statutes, the grammatical and natural meaning must be given to the words.
Moreover the view we take also accords with the scheme and intention if Section
438 of the Code. Therefore, merely filing of challan cannot circumvent the
extraordinary powers and the benefit conferred by the provisions of Section 438
of the Code.. In the result the bail granted under Section 438 of the Code will
be valid and operative for those offences only for which the bail has been
granted which would last till the conclusion of the trial, unless it is
cancelled under Section 437 (5) of the Code if it is so necessary to do so.”
In Sajjan Kumar v. State[29]
interim anticipatory bail was granted to the petitioner by the Delhi High Court
while issuing notice in the petition to the investigation agency to show cause
as to why the anticipatory bail should not be confirmed. Similar practice can
be adopted at the initial stage of the proceeding for anticipatory bail filed
after the registration of FIR or complaint when investigation is at nascent stage.
It is suggested that in every such case ordinarily the court should issue an
order of interim anticipatory bail with all usual conditions and any specific
condition that may be required to be imposed in the facts of the case. The
interim order of anticipatory bail should be made final only after conclusion
of investigation and perusal of a charge-sheet or the inquiry report. The format of the order that may be passed on
an application for anticipatory bail is set out hereunder to make the point
clear:
“The petitioner/accused is directed to be
released on an interim anticipatory bail in the event of his arrest with
reference to FIR CR No.______/ Complaint No____ subject to conditions mentioned
in Section 438(2) till further order that may be passed by this court after
filing of the charge-sheet/inquiry report or expiry of 60/90 days hereafter,
whichever is earlier. The IO concerned is directed to intimate the date of
filing of the charge-sheet/inquiry report to the Public Prosecutor within three
days of its filing in the court concerned. The Public Prosecutor in turn is
directed to intimate the fact of filing of the charge-sheet/inquiry report to
the Registry of this court. Upon such written intimation being filed the PP in
the Registry of this court, the matter is directed to be listed on the board
within two days thereafter for passing appropriate further order.
Notwithstanding the above
stated direction the matter should be listed without fail on the board after
expiry of 60/90 days hereafter if, the charge-sheet/inquiry report or
intimation as stated above is not filed earlier. It will be open to the PP to
move an application for modifying or vacating the order of interim anticipatory
bail even prior to filing of the charge-sheet or prior to expiry of 60/90 days
as stated above if IO gathers sufficient material [other than the material
available at the time of passing the interim order] in a shorter period of time
showing prima facie involvement of the petitioner/accused with the commission
of the offences alleged against the petitioner/accused. ”
The new procedure suggested in this article does not
offend the clear language of S.438 and the legislative intent. This procedure prevents
filing of a regular bail application in most of the cases and there by reduces
litigation at the level of Sessions Court and also in High Courts. It also saves
precious time of the court and legal expense to the benefit of the litigant. In
view of this it is desirable to keep the application for anticipatory bail
pending until the completion of investigation or inquiry.
Conclusions:
(i) The practice of limiting the duration of anticipatory bail and
requiring the accused to obtain regular bail within that limited duration
cannot be followed uniformly in all cases. Such uniform practice has no legal
sanction. It amounts to impermissible legislative act by judiciary.
(ii) The normal rule to be followed while granting anticipatory bail
is not to limit the duration of such bail
(iii) The nature of the order of anticipatory bail
and the procedure to be followed depend on the facts of each case. If
anticipatory bail is to be granted before the registration of FIR or criminal
complaint, the anticipatory bail will be usually of a short duration and would
be limited up to some period after actual registration of the FIR or criminal
complaint.
If anticipatory bail is granted after
registration of FIR or a criminal complaint, the initial order of anticipatory
bail should be of interim nature which would be subject to further order that
may be passed after the filing of charge-sheet under S.173 or report under
S.202 of CrPC. This procedure is most convenient as the court retains its power
to modify or vacate the interim order upon perusal of the charge-sheet papers
or inquiry report. In this type of cases there will be no need to file an
application for regular bail.
Where anticipatory bail is granted after the
conclusion of investigation and submission of a charge-sheet or an inquiry
report, the anticipatory bail should not be limited in point of time. In such
cases filing of application for regular bail under S.437 or 439 is out of
question. Refer to the judgment of the Supreme Court in Ravindra Saxena v.
State of Rajasthan AIR 2010 SC 1225 where no such time limit was imposed as it
was a case of granting anticipatory bail after charge-sheet.
Thus, the question of limiting the final
order of anticipatory bail and obtaining regular bail would arise only in those
cases where an application for anticipatory bail is filed before registration
of FIR or a criminal complaint upon reasonable belief formed on the basis of
some objective material that the applicant would be arrested with regard to a non-bailable
offence.
(iv) Anticipatory bail is also “bail” with all is consequences and
effects. There is no substantial difference between regular bail and
anticipatory bail except that the former is a post arrest legal process whereas
the latter is a pre-arrest legal process to secure the freedom of a person.
(v) It is doubtful whether the order passed in Salauddin’s or K.L.Verma’s case could be elevated to the
status of a precedent on the aspect of interpretation of S.438. Those orders
were passed by the Supreme Court without adverting to paragraph 38 of Gurubaksh
Singh’s case. Hence, the orders in Salauddin’s and K.L.Varma’s case are per
incurium.
(vi) All those decisions of the Supreme Court viz. Sunita Devi v.
State of Bihar AIR 2005 SC498, Adri Dharan Das v. State of WB AIR 2005 SC 1057,
Naresh Kumar Yadav AIR 2005 SC 218, D.K .Ganesh Babu AIR 2007 SC 1450,
Parvinderjit Singh v. State (U. T. Chandigarh) AIR 2009 SC 502, Vaman Narain
Ghiya v. State of Rajasthan AIR 2009 SC 1362, where the courts have followed
Salauddin’s or K.L.Varma’s case is also liable to be ignored for the same
reasons as mention in Conclusion No.5.
(vii) Even while amending S.438 in the year 2005
Parliament has thought it fit not to incorporate the requirement of limiting
the duration of anticipatory bail and obtaining regular bail within such
limited duration. Though, the amended provision has not come in to force, it is
relevant for the purpose of understanding the legislative intent. The new
provision makes it mandatory at initial stage to pass an interim anticipatory
bail only. The procedure suggested in this article is to some extent akin to
the procedure mentioned under the amended S.438. The suggested procedure takes
care of the liberty of a person and the power of the police to investigate
without outside interference and is also in conformity with common sense and
logic.
[1] Advocate
Gujarat High Court,A-14 Shakti Enclave, Near
Judges’ Bungalows, Bodakdev, Ahmedabad. E.mail: pandyaasim@yahoo.co.in
[2] Balchand Jain v. State of M.P.
[3] Savitri Agrawal V. State of Maharshtra AIR
2009 SC 3173
[4] Pijush Kanti v. State 1985 CRI. L. J.
1664 (Cal) (DB): 1985 (2) CalHN
279:1985 (2) Crimes 724
[5] Ramsewak v. State of M. P.
[6] V. Chinna Reddy v. N. Vidyasagar Reddy1982
CRI. L. J. 2183 (AP): 1982 (2) AndhLT
442
[7] Devidas Raghu Naik v. State1989 CRI. L. J.
252
[8] Bharat Chaudhary v. State of Bihar AIR
2003 SC 4662: 2003 AIR SCW 5092 (para
7), 2003 Cr.L.J 2815 (FB) (Cal M.
P.
[9] Savitri Agrawal v. State of Maharashtra
[10] Sussex Peerage case, (1844) 11 Cl and F 85
[11] Bhavnagar
University v. Palitana
Sugar Mill Pvt. Ltd. AIR 2003 SCOURT 511: 2002 AIR SCW 4939
[12] Gurubaksh Singh v. State of Punjab
[13] Savitri Agrawal v. State of Maharashtra
[14] Somabhai v. State of Gujarat1977
[15] Gurubaksh Singh v. State of Punjab
[16] Salauddin Abdulsamad Shaikh v. State of Maharashtra
[17] I.Y. Chanda Earappa v. State of Karnataka1989
[18] Union of India
[19] K.L.Varma v. State 1998(9)
SCC 348:1998 (8) JT 521: 1998 SCC (Cri) 1031
[20] Government. of Andhra Pradesh v. B. Satyanarayana Rao AIR 2000 SC
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[21] Young v. Bristol Aeroplane Co. Ltd. (1944) 2 All ER 293
[22] Sunita Devi v. State of Bihar
[23] Massachusetts
v. United States
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611
[24] Ostime v. Australian Mutual Provident Society, (1960) AC 459
[25] Nirmal Jeet Kaur v. State of MP
(2004) 7 SCC 558
[26] In Sunita Devi v. State of Bihar AIR 2005 SUPREME COURT 498: 2004
AIR SCW 7116: 2005 (1) SCC 608:2005 (3) SCJ 134: 2005 Scc(Cri) 435:2004 (8)
Supreme 760
[27] HDFC v. J.J. Mannan AIR 2010 SC 618 (para 11,14)
[28] Ramsewak v. State of M.
P. 1979 CRI.
L. J. 1485(DB)
[29] Sajjan Kumar v. State 1991 CRI. L. J. 645 (Del)
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