Gurbaksh Singh Sibbia & Ors. vs. State of Punjab, 1980

• Mr. Gurbaksh Singh Sibbia, the appellant, was the Minister of Irrigation and Power in the Government of Punjab under the Congress regime. He and a few others were facing serious accusations of corruption and undue use of power. The minister along with the other appellants apprehends arrest.
• The appellants applied for anticipatory bail under Section 438 of the code. in the High Court of Punjab and Haryana. They prayed for the HC to direct the appellants to be released on bail in the event of arrest on the basis of the above-stated charges.
• The application was dismissed by the full bench of the High Court but on special leave to appeal, the application was allowed by the Supreme Court.

Whether the full bench of the Hon’ble High Court was justified in rejecting the anticipatory bail of the appellant. 

The appeals and special leave applications before the Supreme Court were disposed off. The Supreme Court held that the discretion of granting Anticipatory bail must be used more objectively and the higher courts have the power to correct this discretion if the need arises. A dual protection has been provided to this system so that there is no misuse of the discretion and the process. The constitutional bench set aside the judgement of the Full Bench and laid down the following guidelines for exercise of discretionary power:

1. The power of ‘extraordinary character’ does not justify its use in exceptional cases. Due care, caution and circumspection must be used while exercising such powers.
2. The Individual applying for anticipatory bail must have a reasonable apprehension of getting arrested for a non-bailable offence, which can be objectively examined by the court.
3. Anticipatory bail must not be denied in cases where the accused is suspected to have committed an offence punishable in the form of death penalty or life imprisonment. Anticipatory bail must not be denied in cases where the accused is suspected to have committed an offence punishable in the form of death penalty or life imprisonment unless the court has sufficient evidence before it to justify the refusal.
4. Blanket or protective orders of bail should not be passed. Also, for efficient investigation, certain conditions can be imposed under Section-438(2) such as on discovery of a material or evidence in regards to the case.
5. Filing of FIR is not a condition precedent to the grant of anticipatory bail under section 438 and the individual can be granted bail as long as no arrest has been made.
6. The provisions under Section 438 cannot be invoked after the arrest has been made.
7. Under Section 438, interim bail order can be passed without issuing a notice to the Public Prosecutor but it should be mandatorily issued to him afterwards. The court has the discretionary powers to impose suitable conditions in case of such interim bails.
8. The court has the power to limit the operation of anticipatory bail orders until after the FIR is filed. The applicant may be asked to obtain a bail order under Sections 437 or 439 of Cr.P.C. after the filing of FIR has taken place.

The five judges’ bench was of the view that the discretionary power conferred upon the High courts and Sessions Courts, by the legislature can be accounted for by the fact that the criminal justice system cannot be engulfed in a straight jacket formula and the exercise of these powers depend upon the facts and circumstances of the different cases. And as no two cases have similar facts, the courts must be provided with a free hand to exercise their powers accordingly. 

According to Justice Chandrachud, the society has a vital interest in the right to personal liberty and the investigational power of the police even though their importance depends upon the political conditions of the state at any given point of time. He highlighted that it was the court’s task to figure out how to strike a balance between the two and determine the scope of the Section 438 under the Code of Criminal Procedure, 1973.

Justice Chandrachud has also pointed out the term “reason to believe” means the apprehension must be founded upon reasonable grounds and not just a mere ‘belief’ or fear’. The reason for this is that if an application for anticipatory bail is applied without any ground for the apprehension of arrest, the court gets overburdened with unnecessary cases and applications. This hampers the efficient working of the judicial system. 

The Full Bench’s decision of limiting section 438’s use only to exceptional cases citing its extraordinary character was hampering the deliverance of Justice and equality before the law. A person wrongly accused of a non-bailable offence would have no respite if such a limitation or restriction was put on the exercise of discretionary powers under Section-438. Also, there was ambiguity regarding the term ‘exceptional cases’ as the full bench did not specify under what exceptions was the use of powers conferred under Section 438 allowed. Thus, the Constitutional bench’s decision of setting aside this argument was logical and promoted equity.

The guidelines regarding Interim bail and limitation on the operation of an anticipatory bail give the courts a free hand to make decisions according to their discretion and curtail generalisation of laws which frustrates the working of the criminal justice system.

Anticipatory bail is a matter which is taken to court on mere presumption of threat of arrest. The matter is not of any kind of criminal nature yet. This does not allow the Investigating officers and/or agency, the scope to work on the case and defeats the purpose of granting investigative authority to these agencies or officers. This will result in the court interfering with the powers and work of the police.