Bail - Anticipatory Bail - Section 438 of the Code of Criminal Procedure, 1973 (Act 2 of 1974), Scope of - Judicial balancing of personal liberty and the investigational powers of the Police, explained.

The appellant herein, Sri Gurbaksh Singh Sibbia, was a Minister of Irrigation and Power in the Congress Ministry of the Government of Punjab. Grave allegations of political corruption were made against him and others, whereupon applications were filed in the High Court of Punjab and Haryana under Section 438 of the Criminal Procedure Code, praying that the appellants be directed to be released on bail in the event of their arrest on the aforesaid charges. Considering the importance of the matter, a learned single Judge referred the applications to a Full Bench, which by its judgment dated September 13, 1977, dismissed them, after summarising what according to it is the true legal position of Section 438 of the Code of Criminal Procedure, 1973 (Act 2 of 1974) thus:

1. The power under Section 438, Criminal Procedure Code, is of an extraordinary character and must be exercised sparingly in exceptional cases only.

2. Neither Section 438 nor any other provision of the Code authorises the grant of blanket anticipatory bail for offences not yet committed or with regard to accusations not yet levelled.

3. The said power is not unguided or uncanalised but all the limitations imposed in the preceding Section 437 are implicit therein and must be read into Section 438.

4. In addition to the limitations mentioned in Section 437, the petitioner must make out a special case for the exercise of the power to grant anticipatory bail.

5. Where a legitimate case for the remand of the offender to police custody under Section 167(2) can be made out by the investigating agency or a reasonable claim to secure incriminating material from information likely to be received from the offender under Section 27 of the Evidence Act can be made out, the power under Section 438 should not be exercised.

6. 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.

7. The larger interest of the public and State demands that in serious cases like economic offences involving blatant corruption at the higher rungs of the executive and political power, the discretion under Section 438 of the Code should not be exercised.

8. Mere general allegations of mala fides in the petition are inadequate. The court must be satisfied on materials before it that the allegations of mala fides are substantial and that the accusation appears to be false and groundless.

The argument that the appellants were men of substance and position who were hardly likely to abscond and would be prepared to face trial was rejected by the Full Bench with the observation that to accord differential treatment to the appellants on account of their status would amount to a negation of the concept of equality before the law. It could hardly be contended that every man of status, who was intended to be charged with serious crimes, including those under Section 409, which is punishable with life imprisonment, was entitled to knock at the door of the Court for anticipatory bail. The possession of high status, according to the Full Bench, is not only an irrelevant consideration for granting anticipatory bail but is, if anything, an aggravating circumstance. Hence the appeals by special leave.

The appellants contended: (a) The power conferred by Section 438 to grant anticipatory bail is not limited to the contingencies summarised by the High Court; (b) The power to grant anticipatory bail ought to be left to the discretion of the Court concerned, depending on the facts and circumstances of each particular case; (c) Since the denial of bail amounts to deprivation of personal liberty, courts should lean against the imposition of unnecessary restrictions on the scope of Section 438, when no such restrictions are imposed by the legislature in the terms of that section; (d) Section 438 is a procedural provision which is concerned with the personal liberty of an individual who has not been convicted of the offence in respect of which he seeks bail and who must be presumed to be innocent. The validity of that section must accordingly be examined by the test of fairness which is implicit in Article 21. If the legislature itself were to impose an unreasonable restriction, it could have been struck down as being violative of Article 21. Therefore, while determining the scope of Section 438, the Court should not impose any unfair or unreasonable limitation on the individual's right to obtain an order of anticipatory bail. Imposition of an unfair or unreasonable limitation would be violative of Article 21, irrespective of whether it is imposed by legislation or by judicial decision.

Allowing the appeals in part, the Court...