K.K. Sankaranarayanan vs The Sub-Inspector of Police, Tank Factory Police Station, Avadi

Swamikkannu, J.—The petitioner has filed this petition praying for grant of anticipatory bail to him in the event of his arrest by the police in

connection with a case on the file of the Sub-Inspector of Police, Tank Factory Police Station, Avadi, Madras-54.

The contents of the affidavit filed by the petitioner, K. K. Sankaranarayanan, in support of the petition, are as follows ;-

The respondent, who is the Sub-Inspector of Police, Avadi Police Station, on an alleged complaint made by the Security Officer, Heavy Vehicles

Factory, Avadi, Madras for alleged theft of iron gate,'' is now searching and looking out for me to secure me, arrest me and to implicate me in a

case for a non-bailable offence.

I humbly submit that I am an innocent person. I have not committed any offence. I am permanently settled in Avadi, Madras. 3. I further submit

that I am married man, having 3 children to be looked after by me and my large family is depending upon me and I have to support them. 4. I

further state that if I am arrested by the police, my life and carrier will be spoiled and my family will have to suffer. 5. I am purely innocent of the

commission of the Said alleged offence. However, I apprehend that the above said respondent may arrest me at any moment. 6. I am willing to

appear and report before the S.I. of Police, Heavy Vehicles Factory at Avadi as and when required and undertake to abide by any condition that

may be imposed on me for my release in the event of arrest by the police.

Hence in the above circumstances, I pray that this honorable Court may be pleased to grant me anticipatory bail, in the event of my arrest by the

above police and render justice.

S. 438 of the Crl. P.C. dealing with anticipatory bail, reads as follows :-

Direction for grant of bail to person apprehending arrest:- (1) when any person has reason to believe that he may be arrested on an

accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section;

and that Court may, if it thinks fit, direct that in the event of such arrest,, he shall be released on bail.

(2) When the High Court or the Court of Session makes a direction under Sub-S.(l). it may include such conditions in such directions in the light of

the facts of the particular case, as it may think fit, including-

(i) a condition that the person shall make himself available for interrogation by a Police officer as and when required;

(ii) a condition that the person shall not directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the

case so as to dissuade him from disclosing such facts to the Court or to any police officer;

(iii) A condition that the person shall not leave India without the previous permission of the Court;

(iv) such other condition as may be imposed under Sub-S.(3)of S. 437, as if the bail were granted under that section.

(3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the

time of arrest or at any time while in the custody of such released on bail; and if a Magistrate taking cognizance of such offence decides that a

warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under

Sub-s.(l).

Reiterating the contents of the affidavit, Learned Counsel for the petitioner submits that the petitioner may be released on bail in the event of his

arrest by the respondent/police in connection with any case that is registered or going to be registered against him.

Learned Government Advocate No. III submits that no case has been registered against the petitioner by the respondent/police and therefore

the petition for grant of anticipatory bail may be dismissed.

Learned Counsel for the petitioner submits that if there is no case registered against the petitioner herein he has to submit that he sails in the same

boat that has been launched on behalf of the state.

It is really strange as to how applications of this nature when filed with very assertive allegations against police officers, could be dismissed on

the representation made on behalf of the State that there is no case registered against the petitioner in the respondent police station.

As a general rule, the State should, unless very sure about getting material during investigation, not stand very much in the way of the petitioner

getting the benefits of Ss. 437 and 438 of the Crl. P.C. As a matter of fact, S. 438, Crl. P.C., is an outcome of a feeling among the citizens of India

that they should not be unnecessarily proceeded with especially when they are innocent, on the basis of some false complaint emanating out of

motive.

In respect of non-bailable offences, all the conditions imposed by S. 437, Crl. P.C., are implicitly contained in S. 438, Crl. P.C., as well.

Hence, in order to successfully invoke the jurisdiction under S. 438, Crl. P.C., the petitioner charged with a non-bailable offence, apart from

satisfying the conditions under S. 437, Cr. P.C., must, in addition, make out a special case for securing an order of anticipatory bail, which is of an

exceptional type. He must prove that the charge leveled against him is mala fide and stems from ulterior motive. Mere allegation of mala fides by an

offender and a fervent claim of inn ocence put forward by him are manifestly insufficient for arriving at such a conclusion by the Court. These are all

principles enunciated by the Supreme Court of India in several decisions which have to be taken as guidance so far as grant of anticipatory bail is

concerned.

this Court is going to incorporate those vital principles laid down by the Supreme Court for guidance of this Court in case of discussing the

point that arises for consideration in a petition for grant of anticipatory bail because here are certain allegations made by the petitioner herein in an

assertive manner against the respondent/police. This Court does not indulge in discussing the truth or otherwise of such allegations, because this

Court is now to consider whether at this stage, the petition for anticipatory bail is to be dismissed or not.

It has been observed by the Supreme Court in State of Rajasthan, Jaipur v. Balchand alias Baliay as follows :

It is true that the gravity of the offence involved is likely to induce the petitioner to avoid the course of justice and must weigh with us when

considering the question of jail. So also the heinousness of the crime. Even so the record of the petitioner in this case is that, while he has been on

bail throughout in the trial Court and he was released after the judgment of the High Court, there is nothing to suggest that he has abused the trust

placed in him by the Court, his social circumstances also are not so unfavorable in the sense of his being a desperate character or unsocial element

who is likely to betray the confidence that the Court may place in him to turn up to take justice at the hands of the Court. He is stated to be a

young man of 27 years with a family to maintain. The circumstances and the social milieu do not militate against the petitioner being granted bail at

this stage. At the same time any possibility of the abscission or evasion or other abuse can be taken care of by a direction that the petitioner will

report himself before the police station at Baren once every fortnight.

It is also laid down in Balachand Jain v. State of Madhya Pradesh A I.R. 1977 S.C. 356 : 1977 Cri. L.J 225 : 1977 L.W. Cri. 98, as follows

:-

On a reading of S. 438, Crl. P.C., and R. 184, it can be laid down; (1) that S. 438, of the Code has not been repealed or over-ruled by R. 184 of

the Rules but the two have to be read harmoniously without interfering with the spheres contemplated by each of those provisions. In fact, R. 184

of the Rules is only supplemental to S. 438 of the Code and contains the guidelines which have to be followed by the Court in passing orders for

anticipatory bail in relation to cases covered by R. 184 of the Rules. (2) that there is no real inconsistency between S. 438 of the Code and R. 184

of the Rules: (3) that S. 438 of the Code is an extraordinary remedy and should be resorted to only in special cases. It would be desirable if the

Court before passing an order under S. 438 of the Code issues notice to the prosecution to get a clear picture of the entire situation; and (4) that in

cases cowered by R. 184 of the Rules the Court exercising power under S. 436 or S. 438 of the Code has got to comply with the conditions

mentioned in Cls.(a) and (b) of R. 184 and only after the Court has complied with those conditions that an order under any of these sections of the

Code in respect of such offence* could be passed.

There does not appear to be any direct conflict between the provisions of R. 184 of the Rules and S. 438 of the Code. However, the conditions

required by R. 184 of the Rules must be impliedly imported in S. 438 of the Code so as to form the main guidelines which have to be followed

while the Court exercises its power under S. 438 of the Code in offences contemplated by R. 184 of the Rules. Such an interpretation would meet

the ends of justice, avoid all possible anomalies and would at the same time ensure and protect the liberty of the subject which appears to be the

real intention of the Legislature in enshrining S. 438 as a new provision for the first time in the Code. There is no real inconsistency between S. 438

of the Code and R. 184 of the Rules and, therefore, the non obstinate clause cannot be interpreted in a manner so as to repeal or override the

provisions of S. 438 of the Code in respect of cases where R. 184 of the Rules applies.

The scope of R. 184 of the Rules is wider than that of S. 438 of the Code inasmuch as while S. 438 can be invoked only in cases of non-bailable

offences and not in cases of bailable offences, R. 184 of the Rules would apply not only to non-bailable ""offences but also to bailable offences and

in these circumstances, therefore, the conditions mentioned in R. 184 would have to be impliedly imported into S. 436 of the Code which deals

with orders for bail regarding bailable offences. In other words, the position is that where a person who is an accused for offence contemplated by

R. 184 of the Rules and which are bailable, yet be cannot get bail as a matter of right under S. 436 of the Code unless the Court complies with the

conditions laid down in R. 184 Cls. (a) and (b). So far as the question of anticipatory bail is concerned that does not apply to bailable offences at

all.

The rule of prudence requires that notice should be given to the other side before passing a final order for anticipatory kail so that wrong order of

anticipatory bail is not obtained by a party by placing incorrect or misleading facts or suppressing material facts. In future the Courts will exercise

this power keeping these observations in view. In emergent cases the Courts may make an interim order of anticipatory bail before issuing notice to

the other side. It is clear that the intention of the Legislature in enshrining the salutary provision in S. 438 of the Code which applies only to non-

bailable offences was to see that the liberty of the subject is not put in jeopardy on frivolous grounds at the instance of unscrupulous or

irresponsible persons or officers who may sometimes be in charge of prosecution.

It was laid down in Mahanthagouda v. State of Karnataka, ILR 1978 Karnataka serious 905 as follows;-

On the ground that the name of the first petitioner is not in the complaint and the F.I.R. and the second petitioner could not have committed the

alleged offence as he was being treated by a doctor on the date of offence, the petitioners claimed anticipatory bail.

S. 438 of the Crl. P.C. is an extraordinary remedy and should be resorted to only in special cases. It is desirable if the Court before passing an

order under the section issues notice to the prosecution to get a dear picture of the entire situation. S. 438 should be read in conjunction with other

provisions of law and the grant of blanket anticipatory bail cannot be read into the provision. The said power is not unguided or uncanalised, but all

the limitations imposed in S. 437 are implicit therein and must be read into S. 438 as well. In addition to the limitations imposed in S. 437, the

petitioner must further make out a special case for the exercise of the power to grant anticipatory bail. He must prove that the recharge leveled

against him is mala fide and stems from ulterior motive. Mere allegation of mala fides by an offender and a vehement claim of innocence put

forward by him are manifestly insufficient at such a conclusion by the Court. The burden of establishing the mala fides is on the person alleging it

and it is for him to prima facie substantiate his allegation that the charge of serious non-bailable offence against him has been leveled mala fide.

In respect of non-bailable offences, all the conditions imposed by S. 437 of the Code are implicitly contained in S. 438 as well. Where the nature

of the charge is so serious as to be punishable with death or imprisonment for life, it would normally be inapt to exercise the power of the grant of

anticipatory bail at the very threshold of the investigation unless the Court at that very stage is satisfied that such a charge is false or groundless.

Where the person is charged with an offence punishable with death or imprisonment for life and he does not establish that the said charge is

groundless or that it is inspired by mala fides, bail cannot be granted normally under S. 437, Crl. P.C. and, therefore, anticipatory bail cannot be

granted so such a person.

In Gurbaksh Singh Sibia v. State of Punjab, ILR 1978 (1) P&H Series 109 it was held as follows :-

The normal application of the provisions of S. 438 of the Code would be cases where the charge itself is of frivolous nature. A case of this kind

would be a fit to one exercise to jurisdiction in order to needlessly prevent the humiliation of the offender. Similarly, the source from which such a

charge stems has been considered as of significance and where it has been leveled by unscrupulous or irresponsible persons, that would itself be a

ground for consideration in the exercise of the power. Where the Court can on adequate material come to a firm conclusion that the charge is

totally false, it may nevertheless resort to S. 438, however, serious be the nature of the crime. S. 438 of the Cede is in the nature of a shield for

protecting entirely innocent persons from malicious humiliation, if the necessary conditions for its exercise are satisfied. Care has to be taken that

this provision does not become a sword in the hands of the unscrupulous persons to gain time for destroying the incriminating evidence against

them and to mock at the legitimate investigative processes authorised by the lave.

the power under S. 438 is not to be exercised a vacuum, but only on the satisfaction of the conditions spelled out in the section itself. The

jurisdictional fact for the exercise of the power under S. 438 is the co-existence of the two conditions, namely, an existing accusation (or in any

case an accusation which reasonably arises from the existing facts) and a reasonable apprehension of arrest on the basis of such an accusation. It is

thus plain that the exercise of power under S. 438 is with regard to a specific accusation and cannot be extended in a blanket fashion to caver all

offences with which the petitioner may come to be charged. Therefore, no question of the grant of anticipatory bail can arise with regard to an

accusation not yet leveled or in respect of an offence yet not committed.

A person lawfully released on bail either on his own bond or with sureties cannot thereafter be deemed in fact or any legal fiction as being in the

custody of a police officer for the purpose of S. 27 of the Evidence Act, 1872. Mere allegation of mala fides by an offender and a vehement claim

of innocence put forward by him are manifestly insufficient for arriving at a conclusion by the Court that the charge leveled against him is mala fide

and stems from ulterior motive. There is hardly any case where a person seeking bail on a serious charge does not plead innocence and further

does not allege some reason for his alleged false implication. If the allegations by themselves are to be accepted at their face value, then virtually in

every case the power under S. 438 would have to be exercised. Therefore, what indeed is an extraordinary power for exceptional circumstances

would in fact become routine and commonplace. That is not the intent of the law. A mere claim of innocence and liberal allegations of mala fide

motives invariably laid at the door of the investigating agency by the offender is not enough. The Court has to be independently satisfied about the

prima facie falsity of the charge and the ulteriorness of the motive for leveling the same. S. 438 of the Code invariably operates at the very initial

stage of the investigation and even the most competent prosecutor may not then be in a position to put before the Court conclusive material to

bring the charge home against the person accused. To put the prosecutor to proof at the very inception of the investigation appears as running

counter to the whole scheme of investigation into cognizable cases as laid down in Chapter XII of the Code. This, indeed, is not the stage for

invoking the known maxim of the Criminal Law that the burden of proof rests upon the prosecution. That stage arrives at the end of the

investigation and in the course of the trial itself. The inception of the investigation is not a trial. Thus the petitioner must show (and the court must be

wary that mere allegations of mala fides by the petitioner are inadequate) and the court must be satisfied on materials before it that allegations of

mala fides are substantial and the accusations appear to be false and groundless.

It is difficult to unravel the crimes of corruption. It is harder to detect the same when it is committed by what is now a well known category of

white-collar criminals. However, it is the hardest to bring to book when such crime stems from the corridors of executive power and the inches of

high offices. Therefore, the courts must ever remain wary of throttling and in any way impeding the legitimate investigative process in such cases. In

cases of serious economic offences involving blatant corruption at the higher rungs of executive and political power, the larger interest of the public

and the State demand that the extraordinary power under S. 438 of the Code be not exercised in favour of the offenders at the very threshold of

the investigation.

From a reading of the relevant provisions of the Code together, it is plain that in a serious cognizable offence, the Code authorises the arrest and

detention in custody of the offender for the first twenty four hours without the interposition of the Magistracy and further Police custody upto a

period of 15 days with the authority of the Magistrate. It is clear that the arrest and interrogation in police custody for cognizable crime is not only

visualised but expressly authorised by the Code. Therefore, a mere joining of a person in the course of the investigation whilst an anticipatory bail is

no substitute for investigation in custody in all those cases where his personal interrogation may be legitimately required. There is hardly any case

where a party seeking bail would not zealously offer to join the investigation thereof and to similarly undertake not to tamper with the witnesses. If

this by itself were to be sufficient then the provisions of S. 617(2) of the Code need hardly be ever resorted to.

There is nothing in S. 438 itself or in its Legislative history which could give the least indication that the provision was intended to override the

legitimate procedure of investigation into serious crime which has been prescribed by the Code itself in Chapter XII of which S. 167(2) forms the

material part. Indeed, in the event of a conflict the discretionary grant of anticipatory bail must give way to the statutory rights and duties under S.

167(2) of the Code.

In Shri Gurbaksh Singh Sibbia v. The State of Punjab, 1930 L.W. Crl. 135 the Supreme Court has held as follows:-

No one can accuse the police of possessing a healing touch nor indeed does any one have misgivings in regard to constraints consequent upon

confinement in police custody. But, society has came to accept the acquiesce in all that follows upon a police arrest with a certain amount of

sangfroid, in so far as the ordinary rut of criminal investigation is concerned.

The legislature has conferred a wide discretion on the High Court and the Court of Session to grant anticipatory bail, because it evidently felt,

firstly, that it would be difficult to enumerate the conditions under which anticipatory bail should or should not be granted and secondly, because

the intention was to allow the higher Courts in echelon a some what free hand in the grant of relief in the nature of anticipatory bail.

It has to be borne in mind that anticipatory bail is sought when there is a mere apprehension of arrest on the accusation that the applicant has

committed a non-bailable offence. A person who has yet to lose his freedom by being arrested asks for freedom in the event of arrest. That is the

stage at which it is imperative to protect his freedom in so far as one may and to give full play to the presumption that he is innocent. In fact, the

stage at which anticipatory bail is generally sought brings about its striking dissimilarity with situation in which a person who is arrested for the

commission of a non-bailable offence asks for bail. In the latter situation, adequate data is available to the Court or can be called for by it, in the

light of which it can grant or refuse relief and while granting it, modify it by the imposition of all or any of the conditions mentioned in S. 437.

S. 438(1) of the Code lays down a condition which has to be satisfied before anticipatory bail can be granted. The applicant must show that he has

''reason to believe'' that he may be arrested for a non-bailable offence. The use of the expression ''reason to believe'' shows that the belief that the

applicant may be so arrested must be founded on reasonable grounds. Mere ''fear'' is not ''belief, for which reason it is not enough for the applicant

to show that he has some sort of a vague apprehension that someone is going to make an accusation against him, in pursuance of which he may be

arrested. The grounds on which the belief of the applicant is based that he may be arrested for a non-bailable offence, must be capable of being

examined by the Court objectively because it is then alone that the Court can determine whether the applicant has reason to believe that he may be

so arrested. S. 438(1) therefore, cannot be invoked on the basis of vague and general allegations, as if to arm oneself in perpetuity against a

possible arrest. Otherwise, the number of applications for anticipatory bail will be as large as, at any rate, the adult populace. Anticipatory bail is a

device to secure the individual''s liberty ; it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations

likely or unlikely.

Secondly, if an application for anticipatory bail is made to the High Court or the Court of Session it must apply its own mind to the question and

decide whether a case has been made out for granting such relief. It cannot leave the question for the decision of the Magistrate concerned under

S. 437 of the Code, as and when an occasion arises. Such a course will defeat the very object of S. 438.

Thirdly, the filing of a First Information Report is not a condition precedent to the exercise of the power under S. 438. The imminence of a likely

arrest founded on a reasonable belief can be'' shown to exist even if a F.I.R. is not yet filed.

Fourthly, anticipatory bail can be granted even after an F.I.R. is filed, so long as the applicant has not been arrested.

Fifthly, the provisions of S. 438 cannot be invoked after the arrest of the accused. The grant of ''anticipatory bail'' to an accused who is under

arrest involves a contradiction in terms, in so far as the offence or offences for which he is arrested, are concerned. After arrest, the accused must

seek his remedy under S. 437 or S. 439 of the Code if he wants to be released on bail in respect of the offence or offences for which he is

arrested.

This Court has incorporated the salient features of the provision under S. 438 of the Crl. P.C. in order to appreciate the position that confronts

this Court with respect to this provision where on behalf of the State it is submitted that there has been no case registered, against the petitioners

herein under any penal law of the land, whereas certain assertive statements have been made by the petitioners in their sworn affidavits which

accompanied the petition for grant of anticipatory bail. this Court has applied its mind and wants to actually decide as to what it should do with

respect to this petition, in that, can it content itself with merely dismissing this petition by observing that ''on behalf of the State it has been

represented that there has been no case registered against the petitioners and under these circumstances, this petition may be dismissed'' or is it

necessary that there must be at least an indication in this application to the effect that this Court has applied its mind with respect to the very serious

allegations that have been made in the affidavits. In this context, I am quoting the words of Lord Chief Justice Coleridge:

As a general rule, prosecution unless far more extreme than in England in the nineteenth century is possible, is certain to be in vain. It is also true

and I cannot help asserting it that it is an easy form of virtue.

It is a more difficult form of virtue, quietly and unostentatiously to obey what we believe to be God''s will in our own lives.

It is not very easy to do it and makes much less noise on the world.

It is very easy to turn upon somebody who differs from us and in guise of zeal of God''s honor to attack somebody of a difference of opinion,

whose life may be more pleasing to God and more conducive to His Honor than our own. And when it is done by persons whose own lives are

not free from reproach and who take that particular form of zeal for God which consists in putting the criminal law in force against others that no

doubt does more to create a sympathy with the defendant than with the prosecutor.

And if it should be done by those who enjoy the wit of Voltaire and who do not tarn away from the sneers of Gibbon and rather relish the irony ''of

Hume, our feelings do not go with the prosecutors and we are rather disposed to sympathise with the defendant.

It is still worse if the person who takes such a course takes it, not from a kind of notion that God wants his assistance and that he can give it less on

his own account than by prosecuting others-but it is mixed up with anything partisan or political feeling, then nothing can be more foreign to what is

high minded or religious or noble in men''s conduct; indeed it seems to me that anyone who will do that not for the honor of God, but for the

purpose of the man, deserved the most disdainful disapprobation.

Those persons are to be deprecated who would pervert the law, even with the best intentions and do evil that good may come whose damnation

(says the apostle) is just. On Prosecution of Unpopular Causes Vide PP 63 & 64 of Balaji''s Worlds great Speeches for Senior Classes-Balaji

Publications 103, Pycrofts Road Madras-14.

Well this Court should not spend any more time over this and as such, on the representation that has emanated on behalf of the State that there

has been no case registered against the petitioner herein, the petition is dismissed.