The power of a court to grant anticipatory bail cannot be limited solely on grounds of how serious the alleged offence is: Supreme Court of India

Anticipatory bail is a provision under Section 438(1) of the Criminal Procedure Code, which allows a person to request bail when he has good reason to expect to be accused or arrested for a non-bailable offence. The court has the discretion to decide in which cases it is appropriate to grant anticipatory bail and this discretion extends to all cases irrespective of how serious the offence is.  This issue was addressed clearly in the judgement passed by a constitutional bench of the Supreme Court of India consisting of Justice Y.V.  Chandrachud, Justice Bhagwati, Justice Untwalia, Justice Pathak, Justice O Reddy and Justice Chinaappa in the case of Gurbaksh Singh Sibbia v State of Punjab [1980 AIR 1632, 1980 SCR (3) 383] on 9th April 1980.

The petitioner, Mr Gurbaksh Singh Sibbia was Punjab’s Minister of Irrigation and Power. Allegations of high level corruption and misuse of power were levelled against Mr Singh and some of his colleagues. As a reaction to this, he filed applications in the High Court of Punjab and Haryana under Section 438 of the Criminal Procedure Code. The petitioner prayed that they be granted anticipatory bail by the High Court in the event that they were arrested for the alleged offences mentioned above. The High Court dismissed the petitioner’s application on the grounds that the alleged offence in question under Section 409 of the Indian Penal Code was very serious in nature and punishable with life imprisonment. The High Court also added that the high stature the petitioner had as a minister, would lead to a public opinion that he was given preferential treatment had he been granted anticipatory bail.

The application was later allowed before a constitutional bench of the Supreme Court of India, where it was noted that Section 438 of the Code of Criminal Procedure allows the Court to grant anticipatory bail to a person who reasonably apprehends arrest on the accusation or suspicion of committing of a non-bailable offence. It was added that just because the offence that this person was being accused of was serious in nature and could lead to life imprisonment, the discretion of the Court to grant anticipatory bail would not be limited so long as other conditions in Section 437 and 438 were satisfied. The Supreme Court however concluded that anticipatory bail was designed for the purpose of serving as a defence against someone attempting to disgrace another person’s reputation in a false case or getting them detained in jail for a few days and the present case did not seem to be of such nature. The case of Balchand Jain v State of Madhya Pradesh was cited where it was held that “the power of granting ‘anticipatory bail’ is somewhat extraordinary in character and it is only in exceptional cases where it appears that a person might be falsely implicated, or a frivolous case might be launched against him, or “there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail” that such power is to be exercised”.

As result the appeals and special leave applications before the Supreme Court were disposed of and it was concluded by the constitutional bench that “The various appeals and Special Leave petitions before us will stand disposed of in terms of this Judgment. The judgment of the Full Bench of the Punjab and Haryana High Court, which was treated as the main case under appeal, is substantially set aside as indicated during the course of this Judgment”.

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