BAIL – CLASS:2 – ANTICIPATORY BAIL

ANTICIPATORY BAIL (or) PRE – ARREST BAIL

ANTICIPATORY BAIL – HISTORICAL BACKGROUND

Historically, the Code of Criminal Procedure, 1898 (Old Code) did not contain specific provision corresponding to Section 438 Cr.P.C 1973. Under the Old Code, there was a sharp difference of opinion amongst various High Courts on the question whether a Court had inherent power to make an order of bail in anticipation of arrest. The preponderance of view, however, was that it did not have such power. The law commission of India considered the question and vide its 41st report, recommended introduction of an express provision in this behalf. The suggestion of the Law Commission was accepted by the Central Government and in the Draft Bill of the Cr.P.C, 1970, Clause 447 conferred an express power on the High Court and the Court of Session to grant Anticipatory Bail. Keeping in view the reports of law commission, section 438 was inserted in the Code. Section 438 was inserted in the Code. Section 438 (1) Cr.P.C enacts that 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 to the Court of Session for a direction that in the event of his arrests he shall be released on bail, and the court may, if it thinks fit, direct that in the event of such arrest he shall be released on bail. Section 438 (2) Cr.P.C empowers the High Court or the Court of Session to impose conditions enumerated therein. Section 438 (3) Cr.P.C states that if such person is there after arrested without warrant by an officer-in-charge of a police station on such accusation, he shall be released on bail[1].

ANTICIPATORY BAIL – WHAT IS?

The direction which a Court can issue under Section 438 of the Code is that in the event of arrest of an accused on an accusation of committing a non-bailable offence, he shall be released on bail subject to such conditions as the Court may deem fit to impose. An application under Section 438 of the Code can be moved only by a person who has not already been arrested. Once he is arrested, his remedy is to move the concerned Court either under Section 437 or Section 439 of the Code. In the very nature of the direction which the Court can issue under Section 438 of the Code, it is clear that the direction is to be issued only at the pre-arrest stage. The direction becomes operative only after arrest. The condition precedent for the operation of the direction issued is arrest of the accused. This being so, the irresistible inference is that while dealing with an application under Section 438 of the Code the Court cannot restrain arrest[2].

ANTICIPATORY BAIL – NON-BAILABLE OFFENCES

Resultantly, the question of granting anticipatory bail to the appellants under Section 438 of the Code of Criminal Procedure cannot and does not arise for an offence under Section 10 of the Act is bailable; and a direction under the former can be issued only in respect of a non-bailable offence[3].

ANTICIPATORY BAIL – ALL NON-BAILABLE OFFENCES

It is apparent that learned single judge has chosen to exercise the discretion envisaged in Section 438 of the Code on the ground that the offences involved are not punishable with death or imprisonment for life. It must be remembered that Section 438 of the Code applies to all non-bailable offences and not merely to offences punishable with death or imprisonment for life. It is also to be remembered that applicability of the Section is not confined to offences triable exclusively by the Court of Sessions. There is no indication in Section 438 of the Code for justifying a hiatus to be made among non-bailable offences vivisecting those punishable with death or imprisonment for life and those others punishable with less than life imprisonment. No doubt such a classification is indicated in Section 437(1) of the Code, but that Section is concerned only with post-arrest bail and non pre-arrest bail. Learned single judge seems to have telescoped considerations contemplated in Section 437 into the amplitude of the discretion envisaged in Section 438 of the Code[4].

DEFINITION

Anticipatory Bail means that the accused anticipates that some non – bailable offence may be levelled against him and he may be arrested and in that expectation, he goes to a magistrate and moves for bail. No question of Anticipation arises when a non – bailable offence has been registered against him and he is an accused in the fullest sense of term. A person accused of a crime is always under the shadow of fear and that is a sufficient restraint on his movements, entitling him to move for bail[5]. The facility which S – 438 Cr.P.C gives is generally referred to as ‘anticipatory bail’. This expression which was used by the Law Commission in its 41st report is neither used in the section nor in its marginal note. But the expression ‘anticipatory bail’ is a convenient mode of indication that it is possible to apply for bail in anticipation of arrest. Section 438 of the Code of Criminal Procedure, 1973 has various provisions for the granting of anticipatory bail. It lays down the directions for grant of bail to any person apprehending arrest. The 2005 Amendment of the Code has brought in a change in the 1st clause of the section wherein certain factors for consideration have been laid down for directing the Courts as to when anticipatory bail can be granted. They are, namely-

(i) The nature and gravity of the accusation;

(ii) The antecedent of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;

(iii) The possibility of the applicant to flee from justice; and

(iv) Where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested.

If the considerations are satisfied, then the anticipatory bail is granted i.e. the High Court or the Court of Session as the case may be, will issue an interim order for the grant of anticipatory bail. However, the blanket guidelines cannot serve the purpose of day to day problems that invariably crop up while dealing with the matter of anticipatory bail. Some prominent points in this regard are: –

Anticipatory bail orders should be of a limited duration.

Anticipatory bail can be filed either in Sessions Court or High Court.
Anticipatory bail can be applied for in the Court in whose jurisdiction the person ordinarily resides Circumstances which should be borne in mind while determining the question of anticipatory bail,

A ‘blanket order’ of anticipatory bail should not generally be passed. Order of anticipatory bail must show the reasons for making the order, Absconding person cannot be released on anticipatory bail. Anticipatory bail to be effective tills the conclusion of the trial. Anticipatory bail once rejected by the Sessions Court cannot be maintainable on the same ground [Aditi Aparajita, Member, SACJ 2007-08, NUJS][6].

While considering the claim of pre arrest bail, the following factors have to be considered as follows[7]:

The nature and gravity of the accusation;
The antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a court in respect of any cognizable offence;
The possibility of the applicant to flee from justice; and
Where the accusation ahs been made with the object of injuring or humiliating the applicant by having him so arrested.

PROCEDURE

Anticipatory Bail can be granted only by the High Court or a Court of Session. The grant is confined only to cases involving non – bailable offences. Anticipatory Bail will be granted on the same considerations on which bail is granted u/s 437 to a person accused of non – bailable offences. In addition, the court must be satisfied that if Anticipatory Bail is refused, an irreparable wrong or injustice might result which it is desirable to avoid[8].

The constitution Bench of Supreme Court[9] was held “that there is no justification for reading into S.438 Cr.P.C and the limitations mentioned in S.437 Cr.P.C”, and continued “that a person seeking Anticipatory Bail is still a free man entitled to the presumption of innocence”, and concluded “that 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 complaint on finding new material or circumstances at any point of time”, following the above it is held by the Apex court[10] “that the practise of passing orders of Anticipatory Bail operative for a few days and directing the accused to surrender before the Magistrate and apply for regular bail are contrary to law” and it continues as follows.

.109….  According to the Saluddin’s Abdulmad Shaikh Vs. State of Maharashtra[11], the accused has to surrender before the trial court and only thereafter he/she can make prayer for grant of bail by the trial court. The trial court would release the accused only after he has surrendered.

.151… In the instant case there is a direct judgment of the constitution Bench of this court in Sibbia’s case dealing with exactly the same issue regarding ambit, scope and object of the concept of the Anticipatory Bail enumerated u/s.438 Cr.P.C. The contra is no longer res integra. We are clearly bound to follow the said judgment of the Constitutional Bench.

ANTICIPATORY BAIL – NOT A MATTER OF RIGHT – ONLY A DISCRETION

We have, therefore, no concept of ‘anticipatory bail’ as understood in section 438 of the Code in the State of U.P. In Balchand Jain vs. State of M.P[12], this court observed that ‘Anticipatory Bail’ is a misnomer. Bail, by itself, cannot be claimed as a matter of right under the Code of Criminal Procedure, 1973, except for bailable offences (sec.436 Cr.P.C, 1973). For non-bailable offences, condition are prescribed u/ss 437 & 439 Cr.P.C. The discretion to grant bail in non-bailable offences remains with the court and hence, it cannot be claimed as a matter of right, but the aggrieved party cannot seek a remedy of right, but the aggrieved party can only seek a remedy and it is on the discretion of the court to grant it or not. The purposes for which the provision of Anticipatory Bail made are quite obvious. One of the purposes of the arrest is that the accused should be available to the investigating machinery for further investigation and questioning whenever he is required. Another purpose is that the trial should not be jeopardized and for this purpose the restrictions on the movements of the accused are necessary. The genuineness of the alleged need for police custody has to be examined nad it must be balanced against the duty of courts to uphold the dignity of every man and to vigilantly guard the right to liberty without jeopardizing the State objective of maintenance of law and order[13].

Anticipatory Bail is not to be granted as a matter of rule, but should be granted only when a special case is made out and the court is convinced that the accused would not misuse his liberty. After analysing various judgments and guidelines in Satlingappa Mhetre vs. State of Maharashtra[14] this Court has enumerated the parameters that can be taken into consideration by the courts while dealing with the Anticipatory Bail[15].

WHEN ANTICIPATORY BAIL/PRE-ARREST BAIL CAN BE OBTAINED?

Two pre-requisites for the grant of anticipatory bail are there must be apprehension of arrest and it must be with reference to alleged commission of a non-bailable offence. Anticipatory bail can be asked for even when the FIR is not registered, if the said two pre-requisites are satisfied [see Gurbaksh Singh Sibbia – AIR 1980 SC 1632(1)]. This power to issue direction under section 438 Cr.P.C is made available to the Sessions Court and the State High Courts. It is with reference to alleged commission of some non-bailable offences[16].

ANTICIPATORY BAIL – TIME LIMIT TO SURRENDER

When anticipatory bails are granted, it is usual to prescribe time limit within which the petitioner shall surrender and execute the bond. In other words, time limit to work out the bail order. But, when the date expires bail order will not, should not expire. Unless it is cancelled in a manner known to law after giving opportunity to the petitioner, it will be in force. There may be cases for certain reason beyond the control of the accused, he could not surrender. It may be due to bottlenecks created by the police, complainant side or poverty or sickness or failure of fault on the part of the petitioner’s lawyer or communication gap or some natural calamity of calamity in the house of the petitioner. In the circumstances, if sufficient reason is given, the court can extend the time to surrender and execute the bail bond[17].

POWER OF GRANTING ANTICIPATORY BAIL BY SESSIONS / HIGH COURT

Application for Anticipatory Bail directly to High Court is maintainable[18]. The power being of important nature it is entrusted only to the higher echelons of judicial forums, i.e. the Court of Session or the High court. It is the power exercisable in case of an anticipated accusation of non – bailable offence. The object which sought to be achieved by Section – 438 Cr.P.C is that the moment a person is arrested, if he has already obtained an order from the Court of Session or High Court, he shall be released immediately on bail without being sent to jail[19].

ANTICIPATORY BAIL – CONDITION

Justice must be tempered with mercy. Those who are in-charge of delivering of justice should be more cautious as well as conscious while delivering justice also keeping in mind the common man the little Indian. This kind of odd conditions will be counterproductive. Would be criminals will be embolden to commit crimes, cut the Karuvela trees, come out on bail from jail and go scot-free. And they will be interested in indulging in further crimes. The interest of ‘law and order’, ‘safety and security of the people’ will be at stake. I fully endorse the sentiments expressed by Mr.J.B.Solomon Peter Kamaldos and the other members of the bar present here. I am guided by law and also by my (Judicial) conscience. I am not subscribing to the new found ideology of imposing such ‘odd’, ‘onerous’ and ‘obnoxious’ conditions in bail orders. The present spree or competition among the Judges in our State to impose such bail conditions signals not march of law but an onslaught on human rights, human elements, and human sentiments. We are not for bread alone. Honour and human dignity is above all. Thus, imposing of odd conditions in bail orders is against law[20].

SECTION 439 – CONDITION

Section 439(1)(a) of the Code empowers the Sessions Court/High Court to impose any condition which it considers necessary. Only by virtue of this power, the Sessions Court/ High Court directs the accused to stay in a particular place other than the place where the crime had occurred and report before either a police station or court, depending upon the facts of each case. Thus, a bail order of the Sessions Court/High Court under section 439 of the Code needs to discuss only the eligibility criteria for grant of bail. In the bail orders of the Supreme Court and several High Courts, after directing the release of the accused on bail, the order would direct the actual release of the prisoner on bail to the satisfaction of the concerned Magistrate. The amount of bail bond also will not be fixed, because, the financial capability and other factors can be best assessed only by the police officer/Magistrate in whose custody the accused remains[21].

ANTICIPATORY BAIL AND INTERROGATING ACCUSED BY POLICE

It may be mentioned here that section 438 (2) (i) Cr.P.C is very clear that while granting Anticipatory Bail, the court can lay down a condition that the accused shall make himself available for interrogation by police officer as and when required. The purpose of such a provision is that Anticipatory Bail cannot be permitted to be abused. It is therefore, implicit that whenever the court imposes such condition in its order, and the accused called for interrogation or for certain investigation does not appear before the investigating officer then it will be open for the state to move the High court for cancellation of bail[22].

DIFFERENT CASES AGAINST ACCUSED

There are two different offences in two different acts against the accused. In the previous investigation, even the house of the accused was searched and he was interrogated with respect to the same file. In these circumstances, the petitioner may be granted the concession of pre – arrest bail[23].

TIME DURATION IN ANTICIPATORY BAIL

ANTICIPATORY BAIL SHOULD BE FOR LIMITED DURATION

In Bal Chand Jain v. State of M.P[24] it was observed by the Supreme Court that the expression ‘anticipatory bail’ is really a misnomer because what section 438 Cr.P.C contemplates is not an anticipatory bail, but merely an order directing the release of an accused on bail on the event of his arrest. It is, therefore, manifest that there is no question of bail unless a person is arrested in connection with a non-bailable offence by the police. The distinction between an order in terms of section 438 Cr.P.C and that in terms of section 439 Cr.P.C is that the latter is passed after arrest where as former is passed in anticipation of arrest and becomes effective at the very moment of arrest as held in Gurbaksh Singh v. State of Punjab[25]. Supreme Court in Salauddin Abdulsamad Shaikh v. State of Maharashtra[26] held that it is, therefore, necessary that such anticipatory bail orders should be of a limited duration only and ordinarily on the expiry of that duration or extended duration the court granting anticipatory bail should leave it to the regular court to deal with the matter on an appreciation of evidence placed before it after the investigation has made progress or the charge sheet is submitted. In K.L.Verma v. State and another[27] Supreme Court held that anticipatory bail is granted in anticipation of arrest in non-bailable cases, but that does not mean that the regular court, which is to try the offender, is sought to be bypassed. It was, therefore, pointed out that it was necessary that such anticipatory bail orders should be of a limited duration only and ordinarily on the expiry of that duration or extended duration the court granting anticipatory bail should leave it to the regular court to deal with the matter on an appreciation of evidence placed before it after the investigation has made progress or the charge sheet is submitted. By this, what the court desired to convey was that an order of anticipatory bail does not ensure till the end of trial but it must be of limited duration as the regular court cannot be bypassed. The limited duration must be determined having regard to the facts of the case and the need to give the accused sufficient time to move the regular court for bail and to give the regular court sufficient time to determine the bail application. In other words, till the bail application is disposed of one way or the other the court may allow the accused to remain on anticipatory bail. To put it differently, anticipatory bail may be granted for a duration which may extend to the date on which the bail application is disposed of or even a few days thereafter to enable the accused persons to move the higher court, if they so desire. This position to move ‘higher court’ is rendered ‘per-incurium’[28].

ANTICIPATORY BAIL SHOULD NOT BE FOR LIMITED DURATION

Madras High court and the court of Sessions in this State should have the principles enumerated in Gurubaksh Singh Sibbias case[29] and in particular paragraph 42[30] of the Judgment whenever an application u/s 438 of the Cr.P.C comes up for consideration[31].

Answering the question, whether the powers under section 438 Cr.P.C are unguided or unanalysed or are subject to all the limitations of section 437 Cr.P.C? Hon’ble Apex Court held that the Constitution Bench in Sibbia’s case has clearly observed that there is no justification for reading into sections 438 and the limitations mentioned in section 438 Cr.P.C. the court further observed that GRANT OF BAIL FOR LIMITED PERIOD IS CONTRARY TO THE LEGISLATIVE INTENTION AND LAW DECLARED BY THE CONSTITUTION BENCH. Further after discussed its previous judgments held that in the instant case there is a direct judgment of the constitution bench of this court is Sibbia’s case dealing with exactly the same issue regarding ambit, scope and object of the concept of anticipatory bail enumerated u/s 438 Cr.P.C. The controversy is no longer res-integra. Supreme Court also held we are clearly bound to follow the said judgment of the constitution bench and doubted the judgments rendered in Salauddin Abdulsamad Shaikh vs. State of Maharashtra, K.L.Verma vs. state, Adri Dharan Das vs. State of W.B and Sunita Devi vs. State of Bihar, refer the matter to the Larger Bench of appropriate strength[32].

NOT TO ARREST ORDER OR BLANKET ORDER

The legality of the proposed arrest cannot be gone into in an application u/s 438 Cr.P.C. The role of the investigation is well defined and the jurisdictional scope of interference by the court in the process of investigation is limited. The court ordinarily will not interfere with the investigation of a crime or with the arrest of accused in a cognizable offence. An interim order restraining arrest, if passed while dealing with an application u/s 438 of the Code will amount to interference in the investigation, which cannot, at any rate, be done u/s 438 of the Code[33].

As an interim measure, it is directed that the appellants shall not be arrested in connection with FIR being C.R.No:1 of 2014, registered with D.C.P, crime branch, ahemedabad, Gujarat[34].

NOT TO ARREST IN WRIT PETITIONS

Supreme Court has expressed its strong disapproval on high courts allowing miscellaneous applications in disposing Criminal Writ Petitions and held that we are of the view that the high court has committed a grave error in entertaining Criminal Miscellaneous Application in disposing of a Criminal Writ Petition directing that the first respondent should not be arrested until the conclusion of the investigation or submission of any report under section 173 Cr.P.C. Further Hon’ble Supreme Court held that we are sorry to note that in spite of the clear pronouncement of law by this court, still, the High Courts are passing similar orders, which practice has to be deprecated in the strongest terms. Of late, we notice that the High Courts are entertaining writ petitions u/Articles 226 and 227 of the Constitution, so also under section 482 Cr.P.C are all exceptional in nature and to be used in most exceptional cases. The jurisdiction u/s 439 Cr.P.C is also discretionary and it is required to be exercised with great care and caution. Supreme Court then concluded that grant of bail or not to grant, is within the powers of the regular criminal courts and the High Court, in its inherent jurisdiction, is not justified in usurping their powers. Once the criminal writ petition has been disposed of, the High Court becomes functus officio and cannot entertain review petitions or miscellaneous applications except for carrying out typographical or clerical errors. In the instant case, the High Court has entertained a petition in a disposed of criminal writ petition and granted reliefs, which is impermissible in law[35].

NOT TO ARREST – 3 JUDGE BENCH

In view of the above and for the reasons stated above, our final conclusions on the principal/core issue, whether the High Court would be justified in passing an interim order of stay of investigation and/or “no coercive steps to be adopted”, during the pendency of the quashing petition under Section 482 Cr.P.C and/or under Article 226 of the Constitution of India and in what circumstances and whether the High Court would be justified in passing the order of not to arrest the accused or “no coercive steps to be adopted” during the investigation or till the final report/chargesheet is filed under Section 173 Cr.P.C, while dismissing/disposing of/not entertaining/not quashing the criminal proceedings/complaint/FIR in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India, our final conclusions are as under:

(i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into a cognizable offence;

(ii) Courts would not thwart any investigation into the cognizable offences;

(iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on;

(iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the ‘rarest of rare cases (not to be confused with the formation in the context of death penalty).

(v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;

(vi) Criminal proceedings ought not to be scuttled at the initial stage;

(vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule;

(viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere;

(ix) The functions of the judiciary and the police are complementary, not overlapping;

(x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;

(xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;

(xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;

(xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court;

(xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.R Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint;

(xv) When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under Section 482 Cr.P.C, only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR;

(xvi) The aforesaid parameters would be applicable and/or the aforesaid aspects are required to be considered by the High Court while passing an interim order in a quashing petition in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically. Normally, when the investigation is in progress and the facts are hazy and the entire evidence/material is not before the High Court, the High Court should restrain itself from passing the interim order of not to arrest or “no coercive steps to be adopted” and the accused should be relegated to apply for anticipatory bail under Section 438 Cr.P.C. before the competent court. The High Court shall not and as such is not justified in passing the order of not to arrest and/or “no coercive steps” either during the investigation or till the investigation is completed and/or till the final report/chargesheet is filed under Section 173 Cr.P.C, while dismissing/disposing of the quashing petition under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India,

(xvii) Even in a case where the High Court is prima facie of the opinion that an exceptional case is made out for grant of interim stay of further investigation, after considering the broad parameters while exercising the powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India referred to hereinabove, the High Court has to give brief reasons why such an interim order is warranted and/or is required to be passed so that it can demonstrate the application of mind by the Court and the higher forum can consider what was weighed with the High Court while passing such an interim order.

(xviii) Whenever an interim order is passed by the High Court of “no coercive steps to be adopted” within the aforesaid parameters, the High Court must clarify what does it mean by “no coercive steps to be adopted” as the term “no coercive steps to be adopted” can be said to be too vague and/or broad which can be misunderstood and/or misapplied[36].

ANTICIPATORY BAIL – SECTION 18 SC/ST ACT

The scope of Section 18 of the SC/ST Act read with Section 438 of the Code is such that it creates a specific bar in the grant of anticipatory bail. When an offence is registered against a person under the provisions of the SC/ST Act, no Court shall entertain application for anticipatory bail, unless it prima facie finds that such an offence is not made out. Moreover, while considering the application for bail, scope for appreciation of evidence and other material on record is limited. Court is not expected to indulge in critical analysis of the evidence on record. When a provision has been enacted in the Special Act to protect the persons who belong to the Scheduled Castes and the Scheduled Tribes and a bar has been imposed in granting bail under Section 438 of the Code, the provision in the Special Act cannot be easily brushed aside by elaborate discussion on the evidence[37].

ANTICIPATORY BAIL – S.C/S.T – NO USUAL ORDER

In view of the amendments made in the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, this Court is of the view that the usual directions that were issued by this Court cannot be issued routinely in all cases. Therefore, the petitioner is directed to surrender before the trial Court within a period of two weeks from the date of receipt of a copy of this order or after commencement of normal functioning of the Court, which ever is later and on such surrender, the learned Principal District Judge, Villupuram, shall deal with the matter on the same day on merits and in accordance with law, after issuing notice to the victims under Section 15-A (3) of the SC/ST Act[38].

ANTICIPATORY BAIL – PROCLAIMED OFFENDER/ABSCONDER – NOT CO-OPERATING WITH THE INVESTIGATION

From these materials and information, it is clear that the present appellant was not available for interrogation and investigation and declared as ‘absconder’ and declared as a ‘proclaimed offender’, there is no question of granting anticipatory bail. We reiterate that when a person against whom a warrant had been issued and is absconding or concealing himself in order to avoid execution of warrant and declared as a proclaimed offender in terms of section 82 of the Code is not entitled the relief of Anticipatory Bail[39].

It is clear from the above decision that if anyone is declared as an absconder/proclaimed offender in terms of Section 82 of the Code, he is not entitled to the relief of anticipatory bail. In the case on hand, a perusal of the materials i.e., confessional statements of Sanjay Namdev, Pawan Kumar @ Ravi and Vijay @ Monu Brahambhatt reveals that the respondents administered poisonous substance to the deceased. Further, the statements of witnesses that were recorded and the report of the Department of Forensic Medicine & Toxicology Government Medical College & Hospital, Nagpur dated 21.03.2012 have confirmed the existence of poison in milk rabri. Further, it is brought to our notice that warrants were issued on 21.11.2012 for the arrest of the respondents herein. Since they were not available/traceable, a proclamation under Section 82 of the Code was issued on 29.11.2012. The documents (Annexure-P13) produced by the State clearly show that the CJM, Chhindwara, M.P. issued a proclamation requiring the appearance of both the respondents/accused under Section 82 of the Code to answer the complaint on 29.12.2012. All these materials were neither adverted to nor considered by the High Court while granting anticipatory bail and the High Court, without indicating any reason except stating “facts and circumstances of the case”, granted an order of anticipatory bail to both the accused. It is relevant to point out that both the accused are facing prosecution for offences punishable under Sections 302 and 120B read with Section 34 of IPC. In such serious offences, particularly, the respondents/accused being proclaimed offenders, we are unable to sustain the impugned orders of granting anticipatory bail. The High Court failed to appreciate that it is a settled position of law that where the accused has been declared as an absconder and has not cooperated with the investigation, he should not be granted anticipatory bail[40].

ANTICIPATORY BAIL – CHARGE SHEET

Once the investigation makes out a case against him and he is included as an accused in the charge sheet the accused has to surrender to the custody of the court and pray for regular bail. On the strength of an order granting Anticipatory Bail, an accused against whom charge has been framed cannot avoid appearing before the trial court[41].

The High Court or the Court of Sessions has got powers to grant Anticipatory Bail in respect of a case involving non-bailable offence even after filing of the charge-sheet by the police and issuing of a warrant by a Magistrate, as they do not put an end to the power to grant relief u/s 438 Cr.P.C. Section 438 provides for the seeking of the relief when there is an apprehension of arrest for non-bailable offence. It does not refer to a particular time nor particular stage. Therefore, whenever any person apprehends arrest for non-bailable offence, he may seek for Anticipatory Bail irrespective of the stage of the case[42].

ANTICIPATORY BAIL – DURING TRIAL/ADDITION OF CHARGES

In a matter like this where allegations of rape pertain to the period which is almost 17 years ago and when no charge was framed under section 376 IPC in the year 2001, and even the prosecutrix did not take any steps for almost 9 years and the charge under section 376 IPC is added only in the year 2014, we see no reason why the appellant should not be given the benefit of anticipatory bail. Merely because the charge under section 376 IPC, which is a serious charge, is not added, the benefit of anticipatory bail cannot be denied when such a charge is added after a long period of time and inaction of the prosecutrix is also a contributory factor[43].

ANTICIPATORY BAIL – CASE DIARY

Further, it is baffling to note that the accused and informant referred to particular positions of case diary. At the stage of bail applications were heard by High Court, legally they could not have been in a position to have access to the same. The papers which are to be supplied to the accused have been statutorily prescribed. The courts should take serious note when the accused or the informant refers to the case diary to buttress a stand[44].

ANTICIPATORY BAIL – INTER-STATE BAIL

A perusal of the judgment of the Hon’ble Apex Court in Krishna Kumar[45] shows that the Hon’ble Apex Court has not decided the issue whether Bombay High Court has jurisdiction to entertain he application for anticipatory bail with reference to the offences committed in the State of Assam. The Hon’ble Apex Court set aside the inter-state anticipatory bail order on the ground that no notice was given to the State of Assam and they were not heard by the Bombay High Court before granting inter-state anticipatory bail. From the above discussion and more particularly the Division Bench judgment of this Court in Shanthi Swaroop[46], if a person is sought to be arrested in a place for his alleged commission of offence in another State can seek anticipatory bail in the Sessions Court or the High Court within whose territorial limits he is sought to be arrested[47].

NO MERITS IN ANTICIPATORY BAIL

At the stage of granting bail a detailed examination of evidence and elaborate documentation of merits of the case has not to be undertaken. What the Additional Sessions Judge had done, in the order dated, 16.09.2000 was to discuss the merits and de-merits of the evidence. That was what was depricated. That did not mean that whilst granting bail some reasons for prima facie concluding why bail was being granted did not have to be indicated[48].

Supreme Court hesitated in dealing with the merits once it dealt with Anticipatory Bail application and further held that as stated above, any expression of opinion on the merits of the case except to the extent of finding out prima facie whether the appellants are entitled for anticipatory bail or not, would likely to effect the trial[49].

ANTICIPATORY BAIL – INTERROGATION

Whether appellant-accused should be taken into custody for interrogation needed to be considered by larger bench[50].

ANTICIPATORY BAIL – ACCUSED NOT COMPLIED CONDITION

When the petitioner was not able to comply with these orders, it cannot be stated that he should not be given any other relief. The Hon’ble Supreme Court in M.C.Abraham vs. State of Maharashtra[51] has held that even if anticipatory bail application is dismissed, it does not automatically mean that the accused should be arrested[52].

SECTION 439 CR.P.C & CUSTODY

It was noted by the Supreme Court that the conditions laid down u/s 437 (1) (a) Cr.P.C are sine qua non for granting bail even u/s 439 of the Code[53].

Obviously, the requirement of section 439 Cr.P.C is not wiped out by the section 438 Cr.P.C. Section 439 Cr.P.C comes in to operation only when a person is in custody. In view of the clear language of section 439 Cr.P.C and in view of the decision of Supreme Court in Niranjan Singh v. Prabhakar Rajaram[54], there cannot be any doubt that unless a person is in custody, an application for bail u/s 439 Cr.P.C would not be maintainable. The crucial question is when a person is in custody, within the meaning of section 439 Cr.P.C? the answer is when he is in duress either because he is held by the investigation agency or other police or allied authority or is under the control of the court having been remanded by judicial order, or having offered himself to the court’s jurisdiction and submitted to its orders by physical presence. No lexical dexterity nor precedential profusion is needed to come to the realistic conclusion that he who is under the control of the court or is in the physical hold to an officer with coercive power is in custody for the purpose of section 439 Cr.P.C. For making an application u/s 439 Cr.P.C, the fundamental requirement is that the accused should be is in custody. Supreme Court further concluded that if the protective umbrella of section438 Cr.P.C is extended beyond what was laid down in Salauddin’s Case[55], the result would be clear by passing of what is mandated in Section 439 Cr.P.C regarding custody[56].

SECOND ANTICIPATORY BAIL APPLICATION – MAINTAINABILITY

Madras high court following Joginder Kumar vs. State of U.P[57] and Radhakrishnan @ R.K vs. The State[58] held that if the court is able to find out a real apprehension on the part of the accused in the given circumstance part of the case, it is immaterial to see whether it is a first Anticipatory Bail petition or subsequent Anticipatory Bail petition or petition was withdrawn or not pressed[59].

SECTION 439 Cr.P.C – NOT AN APPEAL

It is needless to point out that under Sec.439 of the Code of Criminal Procedure, the High Court does not exercise any appellate power against the order of the lower Court refusing bail. Under such provision, the High Court exercises its original jurisdiction and so that the High Court could evaluate the grounds raised by the petitioner and the materials placed in support of the petitioner’s case as well as the police records and the other materials placed by the respondent police so as to come to the conclusion as to whether the accused would be entitled to bail or not[60].

ANTICIPATORY BAIL – 5 JUDGE BENCH REFERENCE

Whether an anticipatory bail should be for a limited period of time is the issue before us on which there are two divergent views. After considering Constitution Bench decision of Hon’ble Supreme Court in Shri Gurbaksh Singh Sibbia and others v. State of Punjab[61] and two judge bench of the Hon’ble Supreme Court Siddharam Satlingappa Mhetre v. State of Maharashtra and others[62] the Apex Court framed the following questions and sent for reference:

Ihe light of the conflicting views of the different Benches of varying strength, we are of the opinion that the legal position needs to be authoritatively settled in clear and unambiguous terms. Therefore, we refer the following questions for consideration by a larger Bench :-

(1) Whether the protection granted to a person under Section 438 CrPC should be limited to a fixed period so as to enable the person to surrender before the Trial Court and seek regular bail?

(2) Whether the life of an anticipatory bail should end at the time and stage when the accused is summoned by the court?[63].

ANTICIPATORY BAIL – 5 JUDGE BENCH CONCLUSIONS[64]

In view of the concurring judgments of Justice M.R. Shah and of Justice S. Ravindra Bhat with Justice Arun Mishra, Justice Indira Banerjee and Justice Vineet Saran agreeing with them, the following answers to the reference are set out:

(1)   Regarding Question No. 1, this court holds that the protection granted to a person under Section 438 Cr. PC should not invariably be limited to a fixed period; it should inure in favour of the accused without any restriction on time. Normal conditions under Section 437 (3) read with Section 438 (2) should be imposed; if there are specific facts or features in regard to any offence, it is open for the court to impose any appropriate condition (including fixed nature of relief, or its being tied to an event) etc.

(2)  As regards the second question referred to this court, it is held that the life or duration of an anticipatory bail order does not end normally at the time and stage when the accused is summoned by the court, or when charges are framed, but can continue till the end of the trial. Again, if there are any special or peculiar features necessitating the court to limit the tenure of anticipatory bail, it is open for it to do so.

This court, in the light of the above discussion in the two judgments, and in the light of the answers to the reference, hereby clarifies that the following need to be kept in mind by courts, dealing with applications under Section 438, Cr. PC:

(1)   Consistent with the judgment in Shri Gurbaksh Singh Sibbia and others v. State of Punjab, 1980 (2) SCC 565, when a person complains of apprehension of arrest and approaches for order, the application should be based on concrete facts (and not vague or general allegations) relatable to one or other specific offence. The application seeking anticipatory bail should contain bare essential facts relating to the offence, and why the applicant reasonably apprehends arrest, as well as his side of the story. These are essential for the court which should consider his application, to evaluate the threat or apprehension, its gravity or seriousness and the appropriateness of any condition that may have to be imposed. It is not essential that an application should be moved only after an FIR is filed; it can be moved earlier, so long as the facts are clear and there is reasonable basis for apprehending arrest.

(2)   It may be advisable for the court, which is approached with an application under Section 438, depending on the seriousness of the threat (of arrest) to issue notice to the public prosecutor and obtain facts, even while granting limited interim anticipatory bail.

(3)  Nothing in Section 438 Cr. PC, compels or obliges courts to impose conditions limiting relief in terms of time, or upon filing of FIR, or recording of statement of any witness, by the police, during investigation or inquiry, etc. While considering an application (for grant of anticipatory bail) the court has to consider the nature of the offence, the role of the person, the likelihood of his influencing the course of investigation, or tampering with evidence (including intimidating witnesses), likelihood of fleeing justice (such as leaving the country), etc.

The courts would be justified – and ought to impose conditions spelt out in Section 437 (3), Cr. PC [by virtue of Section 438 (2)]. The need to impose other restrictive conditions, would have to be judged on a case by case basis, and depending upon the materials produced by the state or the investigating agency. Such special or other restrictive conditions may be imposed if the case or cases warrant, but should not be imposed in a routine manner, in all cases. Likewise, conditions which limit the grant of anticipatory bail may be granted, if they are required in the facts of any case or cases; however, such limiting conditions may not be invariably imposed.

(4)  Courts ought to be generally guided by considerations such as the nature and gravity of the offences, the role attributed to the applicant, and the facts of the case, while considering whether to grant anticipatory bail, or refuse it. Whether to grant or not is a matter of discretion; equally whether and if so, what kind of special conditions are to be imposed (or not imposed) are dependent on facts of the case, and subject to the discretion of the court.

(5)  Anticipatory bail granted can, depending on the conduct and behavior of the accused, continue after filing of the charge sheet till end of trial.

(6)  An order of anticipatory bail should not be “blanket” in the sense that it should not enable the accused to commit further offences and claim relief of indefinite protection from arrest. It should be confined to the offence or incident, for which apprehension of arrest is sought, in relation to a specific incident. It cannot operate in respect of a future incident that involves commission of an offence.

(7)   An order of anticipatory bail does not in any manner limit or restrict the rights or duties of the police or investigating agency, to investigate into the charges against the person who seeks and is granted prearrest bail.

(8)   The observations in Sibbia regarding “limited custody” or “deemed custody” to facilitate the requirements of the investigative authority, would be sufficient for the purpose of fulfilling the provisions of Section 27, in the event of recovery of an article, or discovery of a fact, which is relatable to a statement made during such event (i.e deemed custody). In such event, there is no question (or necessity) of asking the accused to separately surrender and seek regular bail. Sibbia (supra) had observed that “if and when the occasion arises, it may be possible for the prosecution to claim the benefit of Section 27 of the Evidence Act in regard to a discovery of facts made in pursuance of information supplied by a person released on bail by invoking the principle stated by this Court in State of U.P. v Deoman Upadhyaya.”

(9)  It is open to the police or the investigating agency to move the court concerned, which grants anticipatory bail, for a direction under Section 439 (2) to arrest the accused, in the event of violation of any term, such as absconding, noncooperating during investigation, evasion, intimidation or inducement to witnesses with a view to influence outcome of the investigation or trial, etc.

(10) The court referred to in para (9) above is the court which grants anticipatory bail, in the first instance, according to prevailing authorities.

(11) The correctness of an order granting bail, can be considered by the appellate or superior court at the behest of the state or investigating agency, and set aside on the ground that the court granting it did not consider material facts or crucial circumstances. (See Prakash Kadam & Etc. Etc vs Ramprasad Vishwanath Gupta & Anr, (2011) 6 SCC 189; Jai Prakash Singh (supra) State through C.B.I. vs. Amarmani Tripathi, (2005) 8 SCC 21). This does not amount to “cancellation” in terms of Section 439 (2), Cr. PC.

(12) The observations in Siddharam Satlingappa Mhetre v. State of Maharashtra & Ors, 2011 (1) SCC 694 (and other similar judgments) that no restrictive conditions at all can be imposed, while granting anticipatory bail are hereby overruled. Likewise, the decision in Salauddin Abdulsamad Shaikh v. State of Maharashtra, (1996 (1) SCC 667) and subsequent decisions (including K.L. Verma v. State & Anr, 1998 (9) SCC 348; Sunita Devi v. State of Bihar & Anr, 2005 (1) SCC 608; Adri Dharan Das v. State of West Bengal, 2005 (4) SCC 303; Nirmal Jeet Kaur v. State of M.P. & Anr, 2004 (7) SCC 558; HDFC Bank Limited v. J.J. Mannan, 2010 (1) SCC 679; Satpal Singh v. the State of Punjab, 2018 SCC Online (SC 415) and Naresh Kumar Yadav v Ravindra Kumar, 2008 (1) SCC 632) which lay down such restrictive conditions, or terms limiting the grant of anticipatory bail, to a period of time are hereby overruled.

[1] AIR 2009 SC 3173=2009 Cr.L.J 4290=(2009)3 SCC (CRI) 683=(2009)8 SCC 325=(2009)9 SCALE 514 – Savitri Agarwal and Ors v. State of Maharashtra & anr

[2] D. K. Ganesh Babu VS P. T. Manokaran – 2007 3 Scale 445=2007 4 SCC 434=2007 2 SCC(Cri) 345= 2007 1 MWN(Cri) 170.

[3] R.K. Krishna Kumar etc. etc. vs State of Assam & Ors – 1998 Cr.L.J 848 (SC)=1997 7 Scale 442=1998 1 SCC 474;

[4]State of Andhra Pradesh vs. Bimal Krishna Kundu & Anr – AIR 1997 SC 3589=1997 6 Scale 347=1997 8 SCC 104;

[5] 1967 MLJ (cr) 771; 1967 KER LT 566

[6] http://sacjnujs.blogspot.com/2008/12/provision-of-anticipatory-bail-in-in\dia.html

[7] Shobhan Singh Khanka v. The State of Jharkhand – 2012 (2) Supreme 588=2012 (4) SCALE 78

[8] 1975 Cr.L.J 1681 (ori)

[9] Grurbaksh Singh Sibbia & others Vs. State of Punjab (1980) 2 SCC 505

[10] 2010 (12) SCALE; Siddharam Satlingappa Mhetre Vs. State of Maharashtra & others [Dalveer Bhandari & K.S.Panicker Radhakrishnan J.J]

[11] (1996)1 SCC 697.

[12] (1976)4 SCC 572

[13] KM. Hema Mishra vs. State of U.P and Ors – Manu/SC/0032/2014

[14] (2011)1 SCC 694

[15] Rakesh Baban Borhade vs. State of Maharashtra and another – CDJ 2014 SC 947

[16] A.L.Ramachandra & Another vs. The Commissioner of Police, Coimbatore – CDJ 2014 MHC 4236

[17] P.Kala vs. State – (2013)4 MLJ (Cri) 367

[18] 1975(2) Cr.L.J 264

[19] Adri Dharan Das vs. State of West Bengal, AIR 2005 SC 1057; 2005 Cr.L.J 1706; 2005(4) SCC 303; 2005 SCC(Cri) 933; 2005(2) Supreme 363

[20] Gnanam Versus State rep. by The Inspector of Police (L & O), Chennai – CRL. O.P. No. 4530 of 2017 – 20-03-2017

[21] Pillappan @ Ravikumar vs. State – (2018)3 CTC 156=(2018)2 MLJ (cri)502.

[22] State of Punjab v. Raninder Singh & anr – AIR 2008 SC 609=2008 Cr.L.J 801 (SC)=2007 AIR SCW 7659=2007 (1) Crimes 321 (SC)=(2008)1 SCC 564=(2008)1 SCC (Cri) 301=(2007)13 SCALE 416=(2007)8 Supreme 184

[23] 1978 Cr.L.J (Cri) 53

[24] (1976) 4 SCC 572=AIR 1977 SC 366=1977 Cr.L.J 225 (SC)

[25] (1980) 2 SCC 565=AIR 1980 SC 1632=1980 Cr.L.J 1125 (SC)

[26] AIR 1996 SC 1042=1996 AIR SCW 531=1996 Cr.L.J 1368 (SC)

[27] (1996) 7 SCALE 20

[28] AIR 2005 SC 498(1) – Sunita Devi v. State of Biharj

[29] 1980 SCC (Cri.) 465

[30] As pointed by the High Court is as follows “There was some discussion before us on certain minor modalities regarding the passing of bail orders under Section 438(1). Can an order of bail be passed under the section without notice to the Public Prosecutor? It can be. But notice should issue to the Public Prosecutor or the Government Advocate forthwith and the question of bail should be re-examined in the light of the respective contentions of the parties. The ad interim order too must conform to the requirements of the section and suitable conditions should be imposed on the applicant even at that stage. 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 FIR 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 FIR as aforesaid. But his 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.”

[31] Palanikumar & Another Vs. State & Others – 2007(2) MWN (Cri) 1 (Mad-FB)=(2007)2 MLJ (Cri) 335 (Mad-FB)=(2007)4 CTC 1 (Mad-FB)

[32]Siddharam Satlingappa Mhetre vs. State of Maharashtra & others – 2010 – 2 – L.W (crl) 1385 (SC)=AIR 2011 SC 312=(2011)1 SCC 694=(2010)8 Supreme 353=(2010)4 CCR (SC) 436=2011 Cr.L.J 3905 (SC)

[33] Adri Dharan Das v. State of W.B – (2005) 4 SCC 303=2005 AIR SCW 1013 followed in U.O.I v. Padam Narain Agarwal – AIR 2009 SC 254=2008 AIR SCW 7220=2008 (4) MLJ (Cri) 1483=2008 (13) SCC 305=2008 (13) SCALE 171=2009 (1) SCC (Cri) 1

[34] Teesta Atul Setalvad and Anr vs. State of Gujarat – Crl.Apl. No:338 of 2015; 19.03.2015

[35] Nazma vs. Javed – (2013)1 SCC (Cri) 508=(2013)1 SCC 376

[36] Neeharika Infrastructure Pvt. Ltd v. State of Maharashtra, 2021 SCC OnLine SC 315=2021 0 Supreme (SC) 199-decided on 13.04.2021

[37] Vilas Pandurang Pawar vs. state of Maharashtra – 2012 Crl.L.J4520 (SC).

[38] E.Minnalraja – State Rep.by Inspector of Police Thiruvennainallur – CRL.O.P.No.11185 of 2021 – 30.06.2021.

[39]Lavesh v. State (NCT) – 2012 (8) SCALE 303

[40] State of Madhya Pradesh v/s. Pradeep Sharma, (2014) 2 SCC 171.

[41] HDFC Bank Ltd vs. J.J.Mannan @ J.M – 2010 Cr.L.J 2293 (SC)=(2010)1 SCC 679=2009)14 SCALE 724=(2009)8 Supreme 363=AIR 2010 SC 618

[42] Natturasu & Others vs. The State – 1998 Cr.L.J 1762=1998 (1) LW (Crl) 103

[43] Bhadresh Bipinbhai sheth vs. State of Gujarat and another – (2016)1 SCC (Cri) 240=(2016)1 SCC 152

[44] Naresh Kumar Yadav vs. Ravindra Kumar – AIR 2008  SC 218=2007 AIR SCW 6617=2008 (2) CTC 67 (SC)=2008 (1) SCC 632=2008 (1) SCC (CRI) 277=2007 (12) SCALE 531

[45] AIR 1988 SC 144

[46] 1992 LW (Cri) 475

[47] A.L.Ramachandra & another vs. The Commissioner – CDJ 2014 MHC 4236

[48] Puran vs. Ramvilas – 2001 Cr.L.J 2566(SC)=AIR 2001 SC 2023=2001 SCC(Cri) 1124=2001(6) SCC 338=2001(3) SCALE 695

[49] M.P.Lohia vs State Of West Bengal & Anr – 2005 Cr.L.J 1416(SC)=2005(1) SCALE 754=AIR 2005 SC 790

[50] Teesta Atul Setalvad and another vs. State of Gujarat – (2016)2 SCC(Cri) 424

[51] (2003)2 SCC 649

[52] Jerry Varghese vs. State – Crl.O.P Nos: 10648 of 2013; dt. 20.7.2015

[53] Dinesh M.N (S.P) v. State of Gujarat – 2008 AIR SCW 3677 – Bench of 3 Judges

[54] AIR 1980 SC 785=1980 Cr.L.J 426 (SC)

[55] AIR 1996 SC 1042=1996 AIR SCW 531=1996 Cr.L.J 1368 (SC)

[56] AIR 2005 SC 498(1)

[57] AIR 1994 SC 1349=1994 Cr.L.J 1981 (SC)

[58] 2003 Cr.L.J 4167 (Mad),

[59] M.Gokulakrishnan@adithya Vs. State – 2013-1-L.W (Cri) 97 (Mad)

[60] Thangaraj @ Thamizharasan Versus State by The Deputy Superintendent of Police, National Investigation Agency – CRL.A.No. 758 of 2016 – dt:06-03-2017

[61] (1980) 2 SCC 565.

[62] (2011) 1 SCC 694.

[63] (2018) 7 SCALE 549.

[64] Sushila Aggarwal and others VS State (NCT of Delhi) – (2020) 2 Scale 772=(2020) 5 SCC 1= AIR 2020 SC 831 [5 Judge Bench].