bail-is-a-rule-jail-is-exception

Bail is a rule and jail is an exception

It is often said that ‘bail is the rule and jail is the exception’. This basically implies that a person who is accused of an offence must be set free on bail, unless there is an apprehension that such person might abscond if not detained or arrested. The primary object of arrest or detention is to ensure the smooth functioning of the legal proceedings and the availability of the accused whenever required during the proceedings. However, more often than not, we have witnessed various instances where people may be arrested or detained just to harass them or exert any undue influence. In the context of the same, the Hon’ble Supreme Court laid down certain guidelines for granting anticipatory bail to balance the interests of the accused as well as those of the prosecution in the criminal justice system. This case has been elaborately discussed in the present article hereafter, in light of the relevant legal provisions and judicial precedents.

Details of Gurbaksh Singh Sibbia v. State of Punjab (1980)

Case Name: Gurbaksh Singh Sibbia & Ors. v. State of Punjab
Equivalent Citations: (1980) 2 SCC 565, 1980 SCC (Cri) 465, 1980 Cri LJ 1125, AIR 1980 SC 1632
Court: Hon’ble Supreme Court of India
Bench: Justice Y.V. Chandrachud, Justice P.N. Bhagwati, Justice N.L. Untwalia, Justice R.S. Pathak, and Justice O. Chinnappa Reddy
Appellants: Gurbaksh Singh Sibbia, Sarbajit Singh
Respondent: State of Punjab
Date of the judgement: April 09, 1980
Legal provision involved: Section 438 of the Code of Criminal Procedure, 1973

Facts of Gurbaksh Singh Sibbia v. State of Punjab (1980)

The case is related to the Minister of Irrigation and Power of the Punjab Government, Gurbaksh Singh Sibbia. He, along with other ministers, was accused of grave corruption. Anticipating their arrest, the ministers filed applications before the Hon’ble Punjab and Haryana High Court for anticipatory bail under Section 438 of the CrPC. Realising the importance of the matter, the single judge referred the case to the full bench of the High Court. The High Court dismissed the applications on the ground that the powers of the High Court to grant anticipatory bail were limited and had to be guided by Section 437 of the CrPC. These powers could be exercised only under certain special circumstances. Aggrieved by the decision of the High Court, the applicants preferred an appeal through a Special Leave Petition before the Hon’ble Supreme Court of India under Article 136 of the Indian Constitution.

Issue raised before the Supreme Court

The issue before the Supreme Court was whether a straight-jacket formula could be applied to Section 438 of the CrPC, which has to be followed by the Court while granting anticipatory bail.

Contentions on behalf of the appellants

The first contention on behalf of the appellants was that denial of bail to a person who has not been convicted of an offence amounts to deprivation of his personal liberty. Thus, the Court should not lean towards unnecessary conditions being imposed on granting anticipatory bail under Section 438 of the CrPC. It was further contended that the legislative intention behind Section 438 was not to impose any unnecessary restrictions.

Another important argument raised by the appellants was that even if there were any restrictions imposed under Section 438 of the CrPC, it would have been struck down as being violative of Article 21 of the Indian Constitution. Any unreasonable restriction on the power to grant bail would be violative of the personal liberty of the person seeking bail. Such a person has to be presumed innocent until proven guilty.

Contentions on behalf of the respondents

The primary contention on behalf of the respondents was that anticipatory bail should be granted in exceptional cases wherein the applicant is able to prove that the arrest is anticipated for frivolous or malicious grounds. It was further argued that anticipatory bail is an extraordinary remedy, and therefore, whenever it appears that the proposed accusations are prima facie plausible, the applicant should be left to the ordinary remedy of applying for bail under Section 437 or Section 439 of the CrPC after he is arrested.

Decision of the High Court

The Full Bench of the Punjab and Haryana High Court rejected the applications of the appellants after summarising the provisions of Section 438 of the CrPC. The summary was provided in the following manner:

The power to grant anticipatory bail is of extraordinary character and must be used rarely;
No provision of the CrPC empowers the court to grant blanket bail against all offences that are not committed or for which accusations are pressed against the person;
All the limitations imposed under Section 437 of the CrPC are to be read into Section 438;
In addition to these limitations, the applicant must prove a special case for the grant of anticipatory bail;
The power under Section 438 cannot be exercised if a sufficient case for remand of the accused to the police custody or custody of the investigating authority is made under Section 167(2) of CrPC, or a reasonable case of collecting incriminating material from the accused under Section 27 of the Indian Evidence Act, 1872 is made;
The discretion under Section 438 cannot be exercised with regard to offences punishable with death or imprisonment for life unless the court at that very stage is satisfied that such a charge appears to be false or groundless;
The discretion under Section 438 shall also not be exercised in cases of public importance, such as corruption, by using political powers; and
The Court shall be satisfied that the accusations against the applicant are mala fide on the face of it in order to exercise the discretion provided under Section 438.

On the aforementioned grounds, the Punjab and Haryana High Court rejected the application for anticipatory bail.

Decision of the Supreme Court

The Supreme Court refused to accept the contentions raised by the Respondents as well as the conditions laid down by the Punjab and Haryana High Court, which it considered to be the true meaning of Section 438. It was held that it could not be accepted that there was a legislative oversight while drafting the provision of Section 438, as it is not an ordinary provision of law. It entails one of the most important rights of a person, the right to be presumed innocent until proven guilty. If the legislature intended to impose any restrictions on the power of granting anticipatory bail, it would have included the same under the provision itself.

Moreover, it was stated that the legislature was not penning down the provision on a clean slate. It relied on Section 437 and Section 439 while drafting Section 438. Moreover, the Parliament also relied upon the 41st Law Commission Report, wherein the power of a court to grant anticipatory bail was duly considered. The report concluded with the connotation that the court must have the discretionary power to grant anticipatory bail and ought not to be fettered with unnecessary conditions.

According to the Court, the legislature conferred wide powers of granting anticipatory bail on the Courts of Sessions and the High Courts for two reasons. Firstly, it would be very difficult to determine fixed conditions to be pursued by the courts to grant anticipatory bail. Secondly, to grant ample discretion to the courts to exercise such power.

The Court also held that anticipatory bail is different from bail under Section 437 of the CrPC. A bail is important to protect the personal liberty of an individual and the presumption of his innocence. An anticipatory bail protects liberty at the time of arrest, whereas a bail under Section 437 can be granted after the arrest has taken place and the data is provided to the court. It is based on this data that the court can accept or reject the application for bail for a non-bailable offence. Whereas in the case of anticipatory bail, the court has the power to protect the liberty of an individual in the event of an arrest.

The Court also clarified that it is not the case that an anticipatory bail has to be granted without imposing any conditions whatsoever. Section 438(2) of the CrPC gives the courts the power to impose such conditions as they may deem necessary while granting anticipatory bail.

Thus, the Supreme Court overturned the decision of the High Court and provided certain guidelines to be followed by the High Courts and the Courts of Session while granting anticipatory bail under Section 438, which have been discussed hereunder.

Guidelines issued by the Court

The Supreme Court issued certain guidelines regarding the scope of powers under Section 438 of the CrPC. The guidelines have been summarised as follows:

Section 438 of the CrPC cannot be invoked on vague and unclear accusations. The provision can only be invoked when the applicant has the ‘reasons to believe’ that he may be arrested. Mere fear cannot be equated with the belief of the applicant. Thus, the applicant must bear in mind that the grounds on which anticipatory bail is prayed for are of such nature as can be objectively analysed by the Court. Mere accusations without due cause could not entitle a person to apply for an anticipatory bail.
The object of Section 438 is to grant discretionary powers to the High Court or the Court of Session, as the case may be. Thus, such a court cannot leave the question to be decided by a Magistrate as stipulated under Section 437 of the CrPC. Such an action would defeat the very purpose of the provision.
The filing of an FIR before the application for anticipatory bail is not a condition precedent. It may be applied for even if the applicant has concrete reasons to anticipate an arrest.
Even if an FIR has been filed against such a person, he can still be granted an anticipatory bail, provided that he has not been arrested.
If the person has been arrested, he is not entitled to be granted anticipatory bail. In such a case, the person has to apply for bail either under Section 437 or Section 439 of the CrPC, as the case may be.
Apart from these guidelines, the Supreme Court accepted one view of the High Court, i.e., a blanket anticipatory bail cannot be granted in cases wherein the person has no proper reason to believe or anticipate an arrest. A blanket anticipatory bail means an order that serves as blanket protection against arrest for any offence whatsoever. Such an order would cause grave injustice to the power of the investigating agency and, hence, would be against the public interest. Thus, blanket anticipatory bail cannot be issued.