Grant of bail is the rule and refusal is the exception: Supreme Court's Constitution Bench

In Gurbaksh Singh Sibbia vs. State of Punjab (1980), the Supreme Court's Constitution Bench of Chief Justice Y.V Chandrachud and Justices P.N. Bhagwati, N.L. Untwalia, R.S. Pathak and O. Chinnappa Reddy set aside the substantial part of the judgment of the Full Bench of the Punjab and Haryana High Court. The High Court had rejected the appellants’ applications for anticipatory bail and provided eight propositions underlining the true legal position. The Supreme Court disagreed with seven out of the eight propositions of the High Court. It agreed only with proposition no. 2 formulated by the High Court which stated that "a ’blanket order’ of anticipatory bail should not generally be passed." The Judgment of the Supreme Court was delivered by Chief Justice Chandrachud on April 9, 1980. 

The Criminal Appeal arose out of a judgment dated September 13, 1977 delivered by the Punjab and Haryana High Court. The appellant was Gurbaksh Singh Sibbia, a Minister of Irrigation and Power in the Congress Ministry of the Government of Punjab. He had filed for anticipatory bail in the event of their arrest in the context of grave allegations of political corruption against him.

The Supreme Court recalled the recommendations of the Law Commission of India, in its 41st Report dated September 24, 1969 which pointed out the necessity of introducing a provision in the Cr.P.C. to enable the High Court and the Court of Session to grant "anticipatory bail" in paragraph 39.9 of its report (Volume I). It was meant to be an enabling provision.

The Court drew on the decision in Gudikanti Narasimhulu vs. Public Prosecutor, High Court of Andhra Pradesh, wherein Justice V. R. Krishna Iyer observed that "the issue of bail is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process. After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of procedure established by law. The last four words of Article 21 are the life of that human right."

The Court's judgement reads: We find a great deal of substance in Mr. Tarkunde’s (V.M. Tarkunde) submission that since denial of bail amounts to deprivation of personal liberty, the Court should lean against the imposition of unnecessary restrictions on the scope of Section 438, especially when no such restrictions have been imposed by the legislature in the terms of that section. Section 438 is a procedural provision which is 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 overgenerous infusion of constraints and conditions which are not to be found in Section 438 can make its provisions constitutionally vulnerable since the right to personal freedom cannot be made to depend on compliance with unreasonable restrictions. The beneficient provision contained in Section 438 must be saved, not jettisoned. No doubt can linger after the decision in Maneka Gandhi 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. Section 438, in the form in which it is conceived by the legislature, is open to no exception on the ground that it prescribes a procedure which is unjust or unfair. We ought, at all costs, to avoid throwing it open to a Constitutional challenge by reading words in it which are not be found therein."

It relied on the decision in Nagendra vs. King Emperor (1924), wherein the Calcutta High Court observed that the object of bail is to secure the attendance of the accused at the trial, that the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial and that it is indisputable that bail is not to be withheld as a punishment. In two other cases which, significantly, are the ’Meerut Conspiracy cases’ observations are to be found regarding the right to bail which observe a special mention. 

It also drew on the decision in K. N. Joglekar vs. Emperor wherein, while dealing with Section 498 which corresponds to the present Section 439 of the Code, that it conferred upon the Sessions Judge or the High Court wide powers to grant bail which were not handicapped by the restrictions in the preceding Section 497 which corresponds to the present Section 437. It was observed by the Court that there was no hard and fast rule and no inflexible principle governing the exercise of the discretion conferred by Section 498 and that the only principle which was established was that the discretion should be exercised judiciously. 

It also recalled the decision in Emperor vs. H. L. Hutchinson where it was said that it was very unwise to make an attempt to lay down any particular rules which will bind the High Court, having regard to the fact that the legislature itself left the discretion of the Court unfettered. According to the High Court, the variety of cases that may arise from time to time cannot be safely classified and it is dangerous to make an attempt to classify the cases and to say that in particular classes a bail may be granted but not in other classes. It was observed that the principle to be deduced from the various sections in the Cr.P.C was that grant of bail is the rule and refusal is the exception. An accused person who enjoys freedom is in a much better position to look after his case and to properly defend himself than if he were in custody. As a presumably innocent person he is therefore entitled to freedom and every opportunity to look after his own case. A presumably innocent person must have his freedom to enable him to establish his innocence.

The Court concluded that the conditions mentioned in Sections 437 and 439 of Cr.P.C cannot be read into the provisions of Section 438. It observed: "We do not see why the provisions of Section 438 should be suspected as containing something volatile or incendiary, which needs to be handled with the greatest care and caution imaginable. A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hall mark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail."

The Court observed that the filing of a First Information Report (F.I.R.) 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 F.I.R. is not yet filed. The anticipatory bail can be granted even after an F.I.R. is filed, so long as the applicant has not been arrested. An order of bail be passed under that section without notice to the public prosecutor. 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 operation of an order passed under Section 438(1) need not necessarily be limited in point of time.The normal role should be not to limit the operation of the order in relation to a period of time.