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Tag: Siddharam Satlingappa Mhetre Vs State Of Maharashtra And Others

Bhadresh Bipinbhai Sheth Vs State of Gujarat and Anr on 1 Sep 2015

Posted on January 2, 2021 by ShadesOfKnife

Another wonderful judgment around anticipatory bail.

From Para 23,

23. The principles which can be culled out, for the purposes of the instant case, can be stated as under:
(i) The complaint filed against the accused needs to be thoroughly examined, including the aspect whether the complainant has filed a 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 taken against him in accordance with law. If the connivance between the complainant and the investigating officer is established then action be taken against the investigating officer in accordance with law.
(ii) The gravity of charge and the exact role of the accused must be properly comprehended. Before arrest, the arresting officer must record the valid reasons which have led to the arrest of the accused in the case diary. In exceptional cases, the reasons could be recorded immediately after the arrest, so that while dealing with the bail application, the remarks and observations of the arresting officer can also be properly evaluated by the court.
(iii) It is imperative for the courts to carefully and with meticulous precision evaluate the facts of the case. The discretion to grant bail must be exercised on the basis of the available material and the facts of the particular case. In cases where the court is of the considered view that the accused has joined the investigation and he is fully cooperating with the investigating agency and is not likely to abscond, in that event, custodial interrogation should be avoided. A great ignominy, humiliation and disgrace is attached to 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.
(iv) There is no justification for reading into Section 438 CrPC the limitations mentioned in Section 437 CrPC. The plentitude of Section 438 must be given its full play. There is no requirement that the accused must make out a “special case” for the exercise of the power to grant anticipatory bail. This virtually, reduces the salutary power conferred by Section 438 CrPC to a dead letter. A person seeking anticipatory bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints and conditions on his freedom, by the acceptance of conditions which the court may deem fit to impose, in consideration of the assurance that if arrested, he shall be enlarged on bail.
(v) The proper course of action on an application for anticipatory bail ought to be that after evaluating the averments and accusations 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 anticipatory bail application or confirm the initial order of granting bail. The court would certainly be entitled to impose conditions for the grant of anticipatory bail. The Public Prosecutor or the complainant would be at liberty to move the same court for cancellation or modifying the conditions of anticipatory bail at any time if liberty granted by the court is misused. The anticipatory bail granted by the court should ordinarily be continued till the trial of the case.
(vi) It is a settled legal position that the court which grants the bail also has the power to cancel it. The discretion of grant or cancellation of bail can be exercised either at the instance of the accused, the Public Prosecutor or the complainant, on finding new material or circumstances at any point of time.
(vii) In pursuance of the order of the Court of Session or the High Court, once the accused is released on anticipatory 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.
(viii) Discretion vested in the court in all matters should be exercised with care and circumspection depending upon the facts and circumstances justifying its exercise. Similarly, the discretion vested with the court under Section 438 CrPC should also be exercised with caution and prudence. It is unnecessary to travel beyond it and subject the wide power and discretion conferred by the legislature to a rigorous code of self-imposed limitations.
(ix) No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail because all circumstances and situations of future cannot be clearly visualised for the grant or refusal of anticipatory bail. In consonance with legislative intention, the grant or refusal of anticipatory bail should necessarily depend on the facts and circumstances of each case.
(x) We shall also reproduce para 112 of the judgment wherein the Court delineated the following factors and parameters that need to be taken into consideration while dealing with anticipatory bail:
(a) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
(b) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence;
(c) The possibility of the applicant to flee from justice;
(d) The possibility of the accused’s likelihood to repeat similar or other offences;
(e) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;
(f) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;
(g) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution, because over-implication in the cases is a matter of common knowledge and concern;
(h) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to free, fair and full investigation, and there should be prevention of harassment, humiliation and unjustified detention of the accused;
(i) The Court should consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
(j) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused in entitled to an order of bail.

Bhadresh Bipinbhai Sheth Vs State of Gujarat and Anr on 1 Sep 2015

Citations : [2016 ALT CRL AP 1 122], [2016 GLR 1 798], [2016 SCC 1 152], [2015 AIR SC 3090], [2015 ACR SC 3 3013], [2015 AD SC 9 511], [2015 ALLCC 91 215], [2015 ALLMR CRI 4116], [2015 BOMCR CRI 4 412], [2015 CCR SC 3 453], [2015 CRIMES SC 4 298], [2015 JCC 4 2603], [2015 JLJR 4 57], [2015 NCC 3 104], [2015 PLJR 4 218], [2015 RCR CRIMINAL 4 199], [2015 RLW SC 4 3551], [2015 SCALE 9 403], [2015 SCJ 9 734], [2015 UC 3 1761], [2016 SCC CRI 1 240], [2015 SCC ONLINE SC 771], [2015 GUJ LH 3 165], [2015 AIC 154 1]

Other Sources :

https://indiankanoon.org/doc/180463386/

https://www.casemine.com/judgement/in/5790b344e561097e45a4e3ca

https://www.indialaw.in/blog/blog/criminal/bhadresh-sheth-v-state-of-gujarat/

Posted in Supreme Court of India Judgment or Order or Notification | Tagged 2-Judge (Division) Bench Decision Bhadresh Bipinbhai Sheth Vs State of Gujarat and Anr Catena of Landmark Judgments Referred/Cited to CrPC 438 - Anticipatory Bail Granted CrPC 438 - Valid Duration For Anticipatory Bail Gurbaksh Singh Sibbia Etc Vs State Of Punjab Issued or Recommended Guidelines or Directions or Protocols to be followed Landmark Case Legal Procedure Explained - Interpretation of Statutes Reportable Judgement or Order Siddharam Satlingappa Mhetre Vs State Of Maharashtra And Others | Leave a comment

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.

Posted in Supreme Court of India Judgment or Order or Notification | Tagged Article 14 - Equality before law Article 19 - Protection of certain rights regarding freedom of speech etc Article 21 - Protection of life and personal liberty CrPC 438 - Anticipatory Bail Granted CrPC 438 - Direction for grant of bail to person apprehending arrest CrPC 438 - Valid Duration For Anticipatory Bail Justice Dalveer Bhandari Landmark Case Legal Procedure Explained - Interpretation of Statutes Siddharam Satlingappa Mhetre Vs State Of Maharashtra And Others | Leave a comment

Sushila Aggarwal and Ors Vs State (NCT of Delhi) on 15 May, 2018

Posted on September 9, 2018 by ShadesOfKnife

In this order, Hon’ble Apex Court has referred a matter regarding the valid time period of an anticipatory bail, to larger bench. The landmark pronouncement came on 29 January 2020 by a 5-judge bench here. The landmark precedent from an 1980 constitution bench is available here.

Sushila Aggarwal & Ors Vs State (NCT of Delhi) on 5 May, 2018

It was earlier mentioned in Supreme Court on 19 September, 2018 in the court of 3 judges bench led by CJI and was directed to be listed after a week before appropriate Bench as per roster, subject to removal of defects, if any.

Sushila Aggarwal and Ors Vs State (NCT of Delhi) on 19 September, 2018

Recently, it was heard by 5-judge bench on 23 October, 2019 and the judgment was reserved, after the arguments were concluded.

Sushila Aggarwal and Ors Vs State (NCT of Delhi) on 23 October, 2019

The final status of the case [Case No. SLP(Crl) No. 007281 – 007282 / 2017], is available here.


An detailed analysis is available here.

Posted in Supreme Court of India Judgment or Order or Notification | Tagged CrPC 438 - Valid Duration For Anticipatory Bail Gurbaksh Singh Sibbia Etc Vs State Of Punjab Referred to Large Bench Siddharam Satlingappa Mhetre Vs State Of Maharashtra And Others Sushila Aggarwal and Ors Vs State (NCT of Delhi) | Leave a comment

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