Onkar Nath Mishra and Ors Vs State (NCT of Delhi) and Anr on 14 December, 2007

Posted on September 28, 2018 by ShadesOfKnife

In this landmark quash judgment, Hon’ble Apex Court held that IPC 406 and IPC 498A is not made out on the parents of the husband and as such the case on them is quashed.

Highlights

Knife Name: Neetu
Husband Name: Ashutosh Misra

He gave me no money for expenditure. When I left Bijnore he gave me only Rs.1/- only. I did not receive any phone from him till 7th November, 1994.
He told me that he has no time to go to Cell and to bring me to Bijnore.
talk to your father to give you Rs.50,000/- and VCR to bring with you.
If you come here alone with the child, we will give you good beatings.
Almost 2 weeks ago, Hira Lal informed me that my husband took away all my belongings with him at 4 A.M.
she stated that, my father-in-law and sister-in-law clearly warned him that till the time I will not bring Rs.50,000/- cash and V.C.R. they will not keep me.
In the charge-sheet, it has been recorded that despite issue of notice under Section 160 Cr.P.C. to the complainant and her father by the ASI, neither the complainant nor her father turned up to take back her Stridhan , which was alleged to be with the appellants. It has been noted that the complainant does not want to take back her Stridhan.

Law point from Para 10,

It is trite that at the stage of framing of charge the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclosed the existence of all the ingredients constituting the alleged offence. At that stage, the court is not expected to go deep into the probative value of the material on record. What needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out. At that stage, even strong suspicion founded on material which leads the court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged would justify the framing of charge against the accused in respect of the commission of that offence.

From Para 19,

Section 498A I.P.C. was introduced with the avowed object to combat the menace of dowry deaths and harassment to a woman at the hands of her husband or his relatives. Nevertheless, the provision should not be used as a device to achieve oblique motives.

Onkar Nath Mishra & Ors Vs State (Nct Of Delhi) & Anr on 14 December, 2007

Citations: [2007 SUPREME 8 405], [2008 SCC 2 561], [2008 CRLJ 0 1391], [2008 AIR SC 204], [2008 RCR CRI 1 336], [2008 SCC 1 65], [2007 STPL LE 0 39378], [2008 SCC CRI 1 507], [2008 AD SC 2 398], [2008 BLJR 56 753], [2008 MADLW CRL 2 955], [2008 ACC 60 694], [2008 SCC CRL 1 507], [2008 JT 1 20], [2008 LW CRL 2 955], [2008 ALL MR CRI 1360], [2008 ALT CRI 3 83], [2008 AIR SC 96], [2008 MAHLJ CRI 2 550], [2008 SCC CR 1 507], [2008 CRIMES 1 42], [2008 DRJ 100 3], [2008 UJ 1 107], [2008 MLJ CRI 2 686], [2008 SLT 1 329], [2007 AIOL 1302], [2008 ANJ SC 1 124], [2008 CRLJ SC 1351], [2007 SCALE 14 403], [2007 SCR 13 716], [2008 AIC SC 62 155], [2008 CRI LJ 1391]

Other Source links: https://indiankanoon.org/doc/1907093/ and https://www.casemine.com/judgement/in/5609ae46e4b01497114135e4

Thota Venkateswarlu Vs State Of Andhra Pradesh And Another on 2 September, 2011

Posted on September 28, 2018 by ShadesOfKnife

Hon’ble Supreme Court has held in this judgment that,

Having regard to the above, while we see no reason to interfere with the High Court’s decision to reject the petitioner’s prayer for quashing of the proceedings in Complaint Case No.307 of 2007, we also make it clear that the learned Magistrate may proceed with the trial relating to the offences alleged to have been committed in India. However, in respect of offences alleged to have been committed outside India, the learned Magistrate shall not proceed with the trial without the sanction of the Central Government as envisaged in the proviso to Section 188 Cr.P.C.

Thota Venkateswarlu Vs State Of Andhra Pradesh And Another on 2 September, 2011

Anita Kushwaha Vs Pushap Sudan on 19 July, 2016

Posted on September 27, 2018 by ShadesOfKnife

This is a judgment from Apex Court wherein it held, it has power to transfer of case across states and that include transfer to/from Jammu & Kashmir State of India.

Anita Kushwaha Vs Pushap Sudan on 19 July, 2016

K.D. Sharma Vs Steel Authority Of India Ltd. and Ors. on July 09, 2008

Posted on September 19, 2018 by ShadesOfKnife

Another authority from a division bench of the Supreme Court wherein it was held that,

From Para 24 and 26,

24. The jurisdiction of the Supreme Court under Article 32 and of the High Court under Article 226 of the Constitution is extraordinary, equitable and discretionary. Prerogative writs mentioned therein are issued for doing substantial justice. It is, therefore, of utmost necessity that the petitioner approaching the Writ Court must come with clean hands, put forward all the facts before the Court without concealing or suppressing anything and seek an appropriate relief. If there is no candid disclosure of relevant and material facts or the petitioner is guilty of misleading the Court, his petition may be dismissed at the threshold without considering the merits of the claim.
26. A prerogative remedy is not a matter of course. While exercising extraordinary power a Writ Court would certainly bear in mind the conduct of the party who invokes the jurisdiction of the Court. If the applicant makes a false statement or suppresses material fact or attempts to mislead the Court, the Court may dismiss the action on that ground alone and may refuse to enter into the merits of the case by stating “We will not listen to your application because of what you have done”. The rule has been evolved in larger public interest to deter unscrupulous litigants from abusing the process of Court by deceiving it.

From Paras 28 and 29,

28. The above principles have been accepted in our legal system also. As per settled law, the party who invokes the extraordinary jurisdiction of this Court under Article 32 or of a High Court under Article 226 of the Constitution is supposed to be truthful, frank and open. He must disclose all material facts without any reservation even if they are against him. He cannot be allowed to play `hide and seek’ or to `pick and choose’ the facts he likes to disclose and to suppress (keep back) or not to disclose (conceal) other facts. The very basis of the writ jurisdiction rests in disclosure of true and complete (correct) facts. If material facts are suppressed or distorted, the very functioning of Writ Courts and exercise would become impossible. The petitioner must disclose all the facts having a bearing on the relief sought without any qualification. This is because, “the Court knows law but not facts”.
29. If the primary object as highlighted in Kensington Income Tax Commissioners is kept in mind, an applicant who does not come with candid facts and `clean breast’ cannot hold a writ of the Court with `soiled hands’. Suppression or concealment of material facts is not an advocacy. It is a jugglery, manipulation, maneuvering or misrepresentation, which has no place in equitable and prerogative jurisdiction. If the applicant does not disclose all the material facts fairly and truly but states them in a distorted manner and misleads the Court, the Court has inherent power in order to protect itself and to prevent an abuse of its process to discharge the rule nisi and refuse to proceed further with the examination of the case on merits. If the Court does not reject the petition on that ground, the Court would be failing in its duty. In fact, such an applicant requires to be dealt with for contempt of Court for abusing the process of the Court.

From final para,

the appellant has not come forward with all the facts. He has chosen to state facts in the manner suited to him by giving an impression to the Writ Court that an instrumentality of State (SAIL) has not followed doctrine of natural justice and fundamental principles of fair procedure. This is not proper. Hence, on that ground alone, the appellant cannot claim equitable relief.

K.D. Sharma Vs Steel Authority Of India Ltd. and Ors. on July 09, 2008

Citations : [2008 SUPREME 5 287], [2008 AIOL 783], [2008 SCC 12 481], [2008 JT SC 8 57]

Other Sources :

https://indiankanoon.org/doc/1007946/

https://www.casemine.com/judgement/in/5609ae87e4b01497114140b2

Gudavalli Murali Krishna And Ors. Vs Gudavalli Madhavi And Anr. on 30 January, 2001

Posted on September 19, 2018 by ShadesOfKnife

Hon’ble High Court of AP has held that, the High Court, by exercising its inherent powers can quash the F.I.R. or Investigation in appropriate cases following the tests laid down in Bhajanlal’s case by exercising its inherent jurisdiction under Section 482 of the Cr.P.C.

Gudavalli Murali Krishna And Ors. Vs Gudavalli Madhavi And Anr. on 30 January, 2001

Inder Mohan Goswami & Another Vs State Of Uttaranchal & Others on 9 October, 2007

Posted on September 18, 2018 by ShadesOfKnife

This is the landmark judgment regarding the inherent powers of High Court

Powers of Court under CrPC 482

Inherent power under section 482 Cr.P.C. can be exercised:
(i) to give effect to an order under the Code;
(ii) to prevent abuse of the process of court, and
(iii) to otherwise secure the ends of justice.

Reference made to available here R.P. Kapur v. State of Punjab AIR 1960 SC 866.

In R.P. Kapur v. State of Punjab AIR 1960 SC 866, this court summarized some categories of cases where inherent power can and should be exercised to quash the proceedings:
(i) where it manifestly appears that there is a legal bar against the institution or continuance of the proceedings;
(ii) where the allegations in the first information report or complaint taken at their face value and accepted in their entirety do not constitute the offence alleged;
(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly

Reference made to Perjury

The court noticed that the tendency of perjury is very much on the increase. Unless the courts come down heavily upon such persons, the whole judicial process would come to ridicule. The court also observed that chagrined and frustrated litigants should not be permitted to give vent to their frustration by cheaply invoking jurisdiction of the criminal court.

And law is explained in regards to IPC 415 and 420 Cheating case.

On a reading of the aforesaid section, it is manifest that in the definition there are two separate classes of acts which the person deceived may be induced to do. In the first class of acts he may be induced fraudulently or dishonestly to deliver property to any person. The second class of acts is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases, the inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but need not be fraudulent or dishonest. Therefore, it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had a fraudulent or dishonest intention at the time of making the promise. From his mere failure to subsequently keep a promise, one cannot presume that he all along had a culpable intention to break the promise from the beginning.

And the forgery

The following ingredients are essential for commission of the offence under section 467 IPC:
1. the document in question so forged;
2. the accused who forged it.
3. the document is one of the kinds enumerated in the aforementioned section.

when to issue non-bailable warrants for arresting an individual.

Before parting with this appeal, we would like to discuss an issue which is of great public importance, i.e., how and when warrants should be issued by the Court? It has come to our notice that in many cases that bailable and non-bailable warrants are issued casually and mechanically. In the instant case, the court without properly comprehending the nature of controversy involved and without exhausting the available remedies issued non-bailable warrants.

And… When non-bailable warrants should be issued,

Non-bailable warrant should be issued to bring a person to court when summons of bailable warrants would be unlikely to have the desired result. This could be when:
* it is reasonable to believe that the person will not voluntarily appear in court; or
* the police authorities are unable to find the person to serve him with a summon; or
* it is considered that the person could harm someone if not placed into custody immediately.
As far as possible, if the court is of the opinion that a summon will suffice in getting the appearance of the accused in the court, the summon or the bailable warrants should be preferred. The warrants either bailable or non-bailable should never be issued without proper scrutiny of facts and complete application of mind, due to the extremely serious consequences and ramifications which ensue on issuance of warrants. The court must very carefully examine whether the Criminal Complaint or FIR has not been filed with an oblique motive.
In complaint cases, at the first instance, the court should direct serving of the summons along with the copy of the complaint. If the accused seem to be avoiding the summons, the court, in the second instance should issue bailable warrant. In the third instance, when the court is fully satisfied that the accused is avoiding the court\022s proceeding intentionally, the process of issuance of the non-bailable warrant should be resorted to. Personal liberty is paramount, therefore, we caution courts at the first and second instance to refrain from issuing non-bailable warrants.

Inder Mohan Goswami & Another Vs State Of Uttaranchal & Others on 9 October, 2007

Indiakanoon.org link: https://indiankanoon.org/doc/855018/ or https://www.casemine.com/judgement/in/5609ae56e4b01497114137d5

Citation: [2008 AIR 251], [2007 (10) SCR 847], [2007 (11) JT 499], [2007 (12) SCALE 15], [2007 JT 11 499], [2008 SCC CRI 1 259], [2007 AIOL 1021], [2007 SCR 10 847], [2007 SCC 12 1], [2008 AIR SC 251], [2007 DLT 144 257], [2007 AIC SC 59 30], [2008 ALLLJ 1 40]

Index here.

Vimalben Ajitbhai Patel Vs Vatslabeen Ashokbhai Patel And others on 14 March, 2008

Posted on September 18, 2018 by ShadesOfKnife

A landmark judgment from Hon’ble Apex Court which has seen many twists and turn of events spearheaded by the cunning knife who is an Advocate and filed a large number of cases against her husband and in-laws.

Filing of false 498A in Ahmedabad, that got transferred to Baroda and later dismissed
Another criminal proceeding against the appellants and their family members under Sections 323, 452, 427, 504, 506 and 114 of the Indian Penal Code, the same proceeding has also been dismissed as withdrawn.
Another criminal case was initiated by her against appellant No.2, his son and another under Section 406, 420, 468 and 114 of the Indian Penal Code, which is still pending.
Another case, being No.2338 of 2006 was filed by her under Section 500 of the Indian Penal Code.
Another case under Section 406 of the Indian Penal Code being Case No.2145 of 1993 was filed against the appellants.
Petitions filed for cancellation of bail granted to appellants, at magistrate, District and High Courts

At the end, the cunning foxy knife bit the dust and had to put her tail between her legs.

Another important aspect is the following from Para 24:

24. Section 4 provides for a non obstante clause. In terms of the said provision itself any obligation on the part of in-laws in terms of any text, rule or interpretation of Hindu Law or any custom or usage as part of law before the commencement of the Act, are no longer valid. In view of the non obstante clause contained in Section 4, the provisions of the Act alone are applicable. Sections 18 and 19 prescribe the statutory liabilities in regard to maintenance of wife by her husband and only on his death upon the father-in-law, Mother-in-law, thus, cannot be fastened with any legal liability to maintain her daughter-in-law from her own property or otherwise.

Vimalben Ajitbhai Patel Vs Vatslabeen Ashokbhai Patel And others on 14 March, 2008

Citations: [AIR 2008 SUPREME COURT 2675], [2008 AIR SCW 4475], [2008 (5) SRJ 92], [(2008) 1 CRILR(RAJ) 259], [(2008) 6 ALLMR 75 (SC)], [(2008) 2 MARRILJ 376], [(2008) 2 JCC 1127 (SC)], [2008 CRILR(SC&MP) 259], [(2008) 65 ALLINDCAS 38 (SC)], [2008 CRILR(SC MAH GUJ) 259], [2008 (65) ALLINDCAS 38], [2008 (4) SCALE 601], [2008 (4) SCC 649], [2008 (2) CALCRILR 1], [2008 (2) JCC 1127], [2008 (2) MARR LJ 376], [2008 (6) ALL MR 75 NOC], [(2008) 3 CIVILCOURTC 570], [(2008) 2 MAD LJ(CRI) 1111], [(2008) 4 RAJ LW 3440], [(2008) 2 RECCRIR 699], [(2008) 2 WLC(SC)CVL 93], [(2008) 3 ALLCRILR 9], [(2008) 2 ALL WC 1636, (2009) 1 GUJ LR 200], [(2008) 4 SCALE 601], [(2008) 71 ALL LR 482], [(2008) 5 BOM CR 441]

Other Sources:

https://indiankanoon.org/doc/913087/

https://www.casemine.com/judgement/in/5609ae92e4b01497114142ed

https://www.courtkutchehry.com/Judgement/Search/AdvancedV2?docid=302265

Index of judgments under HAMA 1956 are here.

Social Action Forum for Manav Adhikar and another Vs Union of India on 14 September, 2018

Posted on September 15, 2018 by ShadesOfKnife

Correcting few directions given in Rajesh Sharma judgment here, a Full Bench of Hon’ble Supreme Court has issued this judgment.

Shutter Down of Family Welfare Committees

From Para 18,
18. It was submitted by the learned Amicus Curiae that the decision in Rajesh Sharma (supra) requires reconsideration, for the said judgment confers powers on the Family Welfare Committee to be constituted by the District Legal Services Authority which is an extra-judicial committee of para legal volunteers/social workers/retired persons/wives of working officers/other citizens to look into the criminal complaints under Sections 498-A IPC in the first instance and further, there has been a direction that till such time a report of the committee is received, no arrest should be made. It is urged that the constitution of FWC to look into the criminal complaints under Section 498-A IPC is contrary to the procedure prescribed under the Code of Criminal Procedure.

From Para 33,

33. On a perusal of the aforesaid paragraphs, we find that the Court has taken recourse to fair procedure and workability of a provision so Sahara India Real Estate Corporation Limited v. Securities and Exchange Board of India : (2012) 10 SCC 603, Para 52; SCBA v. Union of India : (1998) 4 SCC 409, Para 47; Union of India v. Raghubir Singh (d) by Lrs. : (1989) 2 SCC 754, Para 7; Dayaram v. Sudhir Batham : (2012) 1 SCC 333 State of Punjab v. Dalbir Singh : (2012) 3 SCC 346, Paras 46, 52 & 85 Gian Singh v. State of Punjab : (2012) 10 SCC 303, Para 61 that there will be no unfairness and unreasonableness in implementation and for the said purpose, it has taken recourse to the path of interpretation. The core issue is whether the Court in Rajesh Sharma (supra) could, by the method of interpretation, have issued such directions. On a perusal of the directions, we find that the Court has directed constitution of the Family Welfare Committees by the District Legal Services Authorities and prescribed the duties of the Committees. The prescription of duties of the Committees and further action therefor, as we find, are beyond the Code and the same does not really flow from any provision of the Code. There can be no denial that there has to be just, fair and reasonable working of a provision. The legislature in its wisdom has made the offence under Section 498-A IPC cognizable and non-bailable. The fault lies with the investigating agency which sometimes jumps into action without application of mind. The directions issued in Arnesh Kumar (supra) are in consonance with the provisions contained in Section 41 CrPC and Section 41-A CrPC. Similarly, the guidelines stated in Joginder Kumar (supra) and D.K. Basu (supra) are within the framework of the Code and the power of superintendence of the authorities in the hierarchical system of the investigating agency. The purpose has been to see that the investigating agency does not abuse the power and arrest people at its whim and fancy.

From Para 35,

However, the directions pertaining to Red Corner Notice, clubbing of cases and postulating that recovery of disputed dowry items may not by itself be a ground for denial of bail would stand on a different footing. They are protective in nature and do not sound a discordant note with the Code. When an application for bail is entertained, proper conditions have to be imposed but recovery of disputed dowry items may not by itself be a ground while rejecting an application for grant of bail under Section 498-A IPC. That cannot be considered at that stage. Therefore, we do not find anything erroneous in direction Nos. 19(iv) and (v). So far as direction No. 19(vi) and 19(vii) are concerned, an application has to be filed either under Section 205 CrPC or Section 317 CrPC depending upon the stage at which the exemption is sought.

From Para 38,

38. In the aforesaid analysis, while declaring the directions pertaining to Family Welfare Committee and its constitution by the District Legal Services Authority and the power conferred on the Committee is impermissible. Therefore, we think it appropriate to direct that the investigating officers be careful and be guided by the principles stated in Joginder Kumar (supra), D.K. Basu (supra), Lalita Kumari (supra) and Arnesh Kumar (supra). It will also be appropriate to direct the Director General of Police of each State to ensure that investigating officers who are in charge of investigation of cases of offences under Section 498-A IPC should be imparted rigorous training with regard to the principles stated by this Court relating to arrest.
39. In view of the aforesaid premises, the direction contained in paragraph 19(i) as a whole is not in accord with the statutory framework and the direction issued in paragraph 19(ii) shall be read in conjunction with the direction given hereinabove.
40. Direction No. 19(iii) is modified to the extent that if a settlement is arrived at, the parties can approach the High Court under Section 482 of the Code of Criminal Procedure and the High Court, keeping in view the law laid down in Gian Singh (supra), shall dispose of the same.
41. As far as direction Nos. 19(iv), 19(v) and 19(vi) and 19(vii) are concerned, they shall be governed by what we have stated in paragraph 35.

So, in summary, the following are the currently active guidelines from SC modified from Rajesh Sharma, apart from Arnesh Kumar.

From Para 19 of Rajesh Sharma Judgment:

iv) If a bail application is filed with at least one clear day’s notice to the Public Prosecutor/ complainant, the same may be decided as far as possible on the same day. Recovery of disputed dowry items may not by itself be a ground for denial of bail if maintenance or other rights of wife/minor children can otherwise be protected. Needless to say that in dealing with bail matters, individual roles, prima facie truth of the allegations, requirement of further arrest/ custody and interest of justice must be carefully weighed;
v) In respect of persons ordinarily residing out of India impounding of passports or issuance of Red Corner Notice should not be a routine;
vi) It will be open to the District Judge or a designated senior judicial officer nominated by the District Judge to club all connected cases between the parties arising out of matrimonial disputes so that a holistic view is taken by the Court to whom all such cases are entrusted; and
vii) Personal appearance of all family members and particularly outstation members may not be required and the trial court ought to grant exemption from personal appearance or permit appearance by video conferencing without adversely affecting progress of the trial. (On filing an application u/s 205 CrPC or 317 CrPC;Judgments here)

Social Action Forum for Manav Adhikar and another Vs Union of India on 14 September, 2018

Citations : [2018 SCC 10 443], [2019 SCC CRI 1 276], [2018 SCC ONLINE SC 1501], [2018 AIR SC 4273], [2018 DLT 252 175], [2018 CRIMES 3 503], [2018 GUJ LH 3 140]

Other Sources :

https://indiankanoon.org/doc/81618143/

https://www.casemine.com/judgement/in/5b9d5e5d9eff431109ed3e71

https://www.indianemployees.com/judgments/details/social-action-forum-for-manav-adhikar-and-another-versus-union-of-india-ministry-of-law-and

Source: https://www.livelaw.in/sec-498a-ipc-only-hc-can-quash-cases-on-settlement-a-third-agency-created-by-courts-cant-exercise-statutory-functionssc/

In Shivangi Bansal Vs Sahib Bansal on 22 Jul 2025, Division Bench of Apex Court restored the Family Welfare Committees.

Siddharam Satlingappa Mhetre Vs State Of Maharashtra And Others on 2 December, 2010

Posted on September 13, 2018 by ShadesOfKnife

This is the landmark judgment from my favorite judge Shri Dalveer Bhandari J on the duration of a anticipatory bail granted by a High Court of a Sessions Court.

Based on Gurbaksh Singh Sibbia case available here, it was held that once granted anticipatory bail continues to protect the accused until the end of trial.
In Sushila Aggarwal & Ors Vs State (NCT of Delhi) in 15 May, 2018 here, a reference is made to a larger bench of Supreme Court on the point of valid time period of an anticipatory bail. This was at last decided in favor this Mhetre judgment only here.

From Para 25,

Mr. Bhushan submitted that a plain reading of the section 438 Cr.P.C. clearly reveals that the legislature has not placed any fetters on the court. In other words, the legislature has not circumscribed court’s discretion in any manner while granting anticipatory bail, therefore, the court should not limit the order only for a specified period till the charge-sheet is filed and thereafter compel the accused to surrender and ask for regular bail under section 439 Cr.P.C., meaning thereby the legislature has not envisaged that the life of the anticipatory bail would only last till the charge-sheet is filed. Mr. Bhushan submitted that when no embargo has been placed by the legislature then this court in some of its orders was not justified in placing this embargo.

From Para 93,

Some courts of smaller strength have erroneously observed that section 438 Cr.P.C. should be invoked only in exceptional or rare cases. Those orders are contrary to the law laid down by the judgment of the Constitution Bench in Sibbia’s case (supra).

From Para 94,

The complaint filed against the accused needs to be thoroughly examined including the aspect whether the complainant has filed false or frivolous complaint on earlier occasion. The court should also examine the fact whether there is any family dispute between the accused and the complainant and the complainant must be clearly told that if the complaint is found to be false or frivolous, then strict action will be takenagainst him in accordance with law. If the connivance betweenthe complainant and the investigating officer is established then action be taken against the investigating officer in accordance with law.

From Para 97,

A great ignominy, humiliation and disgrace is attached to the arrest. Arrest leads to many serious consequences not only for the accused but for the entire family and at times for the entire community. Most people do not make any distinction between arrest at a pre-conviction stage or post-conviction stage.

From Para 101,

The proper course of action ought to be that after evaluating the averments and accusation available on the record if the court is inclined to grant anticipatory bail then an interim bail be granted and notice be issued to the public prosecutor. After hearing the public prosecutor the court may either reject the bail application or confirm the initial order of granting bail. The court would certainly be entitled to impose conditions for the grant of bail. The public prosecutor or complainant would be at liberty to move the same court for cancellation or modifying the conditions of bail any time if liberty granted by the court is misused. The bail granted by the court should ordinarily be continued till the trial of the case.

From Para 102, (VERY IMPORTANT)

The order granting anticipatory bail for a limited duration and thereafter directing the accused to surrender and apply before a regular bail is contrary to the legislative intention and the judgment of the Constitution Bench in Sibbia’s case (supra).

From Para 105, (VERY IMPORTANT)

The court which grants the bail has the right to cancel the bail according to the provisions of the General Clauses Act but ordinarily after hearing the public prosecutor when the bail order is confirmed then the benefit of the grant of the bail should continue till the end of the trial of that case.

From Para 106, (VERY IMPORTANT)

The judgment in Salauddin Abdulsamad Shaikh (supra) is contrary to legislative intent and the spirit of the very provisions of the anticipatory bail itself and has resulted in an artificial and unreasonable restriction on the scope of enactment contrary to the legislative intention.

From Para 108,

Section 438 Cr.P.C. does not mention anything about the duration to which a direction for release on bail in the event of arrest can be granted. The order granting anticipatory bail is a direction specifically to release the accused on bail in the event of his arrest. Once such a direction of anticipatory bail is executed by the accused and he is released on bail, the concerned court would be fully justified in imposing conditions including direction of joining investigation.

From Para 110,

In pursuance to the order of the Court of Sessions or the High Court, once the accused is released on bail by the trial court, then it would be unreasonable to compel the accused to surrender before the trial court and again apply for regular bail.

From Para 112,

The validity of the restrictions imposed by the Apex Court, namely, that the accused released on anticipatory bail must submit himself to custody and only thereafter can apply for regular bail. This is contrary to the basic intention and spirit of section 438 Cr.P.C. It is also contrary to Article 21 of the Constitution. The test of fairness and reasonableness is implicit under Article 21 of the Constitution of India. Directing the accused to surrender to custody after the limited period amounts to deprivation of his personal liberty.

From Paras 115, 116 (VERY IMPORTANT)

The Apex Court in Salauddin’s case (supra) held that anticipatory bail should be granted only for a limited period and on the expiry of that duration it should be left to the regular court to deal with the matter is not the correct view. The reasons quoted in the said judgment is that anticipatory bail is granted at a stage when an investigation is incomplete and the court is not informed about the nature of evidence against the alleged offender.
The said reason would not be right as the restriction is not seen in the enactment and bail orders by the High Court and Sessions Court are granted under sections 437 and 439 also at such stages and they are granted till the trial.

From Para 119, (VERY VERY IMPORTANT)

This Court in the Sibbia’s case (supra) laid down the following principles with regard to anticipatory bail:
a) Section 438(1) is to be interpreted in light of Article21 of the Constitution of India.
b) Filing of FIR is not a condition precedent to exercise of power under section 438.
c) Order under section 438 would not affect the right of police to conduct investigation.
d) Conditions mentioned in section 437 cannot be read into section 438.
e) Although the power to release on anticipatory bail can be described as of an “extraordinary” character this would “not justify the conclusion that the power must be exercised in exceptional cases only.” Powers are discretionary to be exercised in light of the circumstances of each case.
f) Initial order can be passed without notice to the Public Prosecutor. Thereafter, notice must be issued forthwith and question ought to be reexamined after hearing. Such ad interim order must conform to requirements of the section and suitable conditions should be imposed on the applicant.

From Para 128, (VERY VERY IMPORTANT)

In case, the State consider the following suggestions in proper perspective then perhaps it may not be necessary to curtail the personal liberty of the accused in a routine manner. These suggestions are only illustrative and not exhaustive.
1) Direct the accused to join investigation and only when the accused does not cooperate with the investigating agency, then only the accused be arrested.
2) Seize either the passport or such other related documents, such as, the title deeds of properties or the Fixed Deposit Receipts/Share Certificates of the accused.
3) Direct the accused to execute bonds;
4) The accused may be directed to furnish sureties of number of persons which according to the prosecution are necessary in view of the facts of the particular case.
5) The accused be directed to furnish undertaking that he would not visit the place where the witnesses reside so that the possibility of tampering of evidence or otherwise influencing the course of justice can be avoided.
6) Bank accounts be frozen for small duration during investigation.

Siddharam Satlingappa Mhetre Vs State Of Maharashtra And Others on 2 December, 2010

Citation: [(2011) 1 SCC 694], [AIR 2011 SC 312],

Indiankanoon.org or Casemine link: https://indiankanoon.org/doc/1108032/

Index of all Anticipatory Bail Matters is here.

Gurbaksh Singh Sibbia Etc Vs State of Punjab on 9 April 1980

Posted on September 8, 2018 by ShadesOfKnife

In this judgment from Hon’ble Supreme Court, it was held that,

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Should the operation of an order passed under Section 438(1) be limited in point of time? Not necessarily. The Court may, if there are reasons for doing so, limit the operation of the order to a short period until after the filing of an F.I.R. in respect of the matter covered by the order. The applicant may in such cases be directed to obtain an order of bail under Section 437 or 439 of the Code within a reasonably short period after the filing of the F.I.R. as aforesaid. But this need not be followed as an invariable rule. The normal rule should be not to limit the operation of the order in relation to a period of time.

Another set of clarifications here:

This should be the end of the matter, but it is necessary to clarify a few points which have given rise to certain misgivings.
Section 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 some one 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. Section 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 Section 437 of the Code, as and when an occasion arises. Such a course will defeat the very object of Section 438.
Thirdly, the filing of a First Information Report 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.
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 Section 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 Section 437 or Section 439 of the Code, if he wants to be released on bail in respect of the offence or offences for which he is arrested.

Gurbaksh Singh Sibbia Etc Vs State Of Punjab on 9 April, 1980

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