REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOs. 525-526 OF 2012

(Arising out of SLP(Crl.) Nos.304-305 of 2012)

Jai Prakash Singh … Appellant

Vs.

The State of Bihar & Anr. Etc. … Respondents

J U D G M E N T

Dr. B.S. CHAUHAN, J.

1. Leave granted.

2. These criminal appeals have been preferred against the

judgments and orders dated 19.9.2011 and 25.10.2011 passed by the

High Court of Judicature at Patna in Crl. Misc. Nos.. 28318 and

33546 of 2011, by which the High Court has enlarged the respondents

Rajesh Kumar Singh @ Pappu Singh and Sanjay Kumar Singh @

Mintu Singh on anticipatory bail under Section 438 of Code of

Criminal Procedure, 1973 (hereinafter referred as `Cr.P.C.’)

3. Facts and circumstances giving rise to these appeals are that :

A. On 5.6.2011, the appellant Jai Prakash Singh lodged an FIR of

Laheria Sarai Case No. 304 of 2011 under Sections 302/34 of Indian

Penal Code, 1860 (hereinafter referred as `I.P.C.’), alleging therein

that the informant/complainant and his elder brother Shiv Prakash

Singh were having a medicine shop for the last 2-3 years. On

5.6.2011 around 10.00 p.m., his brother closed the shop and

proceeded towards his house on his motorcycle. He was chased by the

aforesaid respondents on a motorcycle and stopped. They opened

indiscriminate firing and thus, he died on the spot. In the FIR, it was

also alleged that the said respondents had threatened the complainant

to kill him and his brother 10-15 days ago as there had been some old

dispute of accounts between the parties.

B. As per the post-mortem report, the deceased received 5 bullet

injuries on his person and he died because of the same. The said

respondents had applied for anticipatory bail, however, their

applications stood rejected by the learned Sessions Judge vide order

dated 11.8.2011 observing that in the investigation, a strong motive

had been found against the said respondents and there were certain

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affidavits of eye-witnesses to the effect that the said respondents were

the assailants.

C. Aggrieved, the said respondents filed Miscellaneous Criminal

Petitions for grant of anticipatory bail under Section 438 Cr.P.C.

before the Patna High Court. The said applications have been allowed

passing the impugned orders granting them anticipatory bail on the

grounds that the FIR itself made it evident that there was some

previous dispute between the parties which led to a quarrel and the

accused had fair antecedents.

Hence, these appeals.

4. Shri Dvijendra Kumar Pandey, learned counsel appearing for

the appellant, has submitted that the High Court committed grave error

while granting anticipatory bail to the said respondents without

considering the gravity of the offence and the manner in which the

offence had been committed and without realising that the FIR had

been lodged promptly within a period of two hours of the incident and

both the said accused persons had been named therein. Thus, the

impugned judgments and orders are liable to be set aside.

5. On the contrary, Ms. Kavita Jha and Ms. Prerna Singh,

learned counsel appearing for the said respondents and the State of

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Bihar, have opposed the appeals contending that the High Court has

imposed very serious conditions while granting the anticipatory bail.

The order does not require any interference at this stage. The appeals

have no merit and are liable to be dismissed.

6. We have considered the rival submissions made by the learned

counsel appearing for the parties and perused the record.

7. The provisions of Section 438 Cr.P.C. lay down guidelines for

considering the anticipatory bail application, which read as under:

“438. Direction for grant of bail to person apprehending

arrest.-(1) Where any person has reason to believe that

he may be arrested on an accusation of having

committed a non-bailable offence, he may apply to the

High Court or the Court of Session for a direction under

this section that in the event of such arrest, he shall be

released on bail; and that court may, after taking into

consideration, inter alia, the following factors, namely:-

(i) The nature and gravity of the accusation;

(ii) 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;

(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, either reject the application forthwith or issue

an interim order for the grant of anticipatory bail.”

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8. In view of the above, it is mandatory on the part of the court to

ensure the compliance of the pre-requisite conditions for grant of

anticipatory bail including the nature and gravity of the accusation.

9. Admittedly, the deceased had received several gun shot injuries.

According to the post-mortem report, the following injuries were

found on the person of the deceased:

“A . Abrasions: (1) 1 1/4" x1/4" 1"- right and enter

post of forehead (2) 1/4" x 1/4" 1/2 "x 1/4" and 1/2"

X 1/10" in the lower 1/2 of the left leg (3) 1/4 " x l/4"

right kneecap.

B. Fire Arm injuries (1) entry wound 1/4 dia with

inverted contused margins and abrasions. Collar

placed on the outer aspect of the right arm 2"

proxical to elbow - passed thro' arms breaking the

bone into pieces and lacerating the to come out thro'

exit wound 1/3" x 1/9" with even in the middle and

inner portion of arm. Another entry wound, 1/5" in

dia with abrasion collar, inverted margin and

tattooing around (1-1/2 " x 1-1/2") was also present

1" distal to the preventing entry wound and come out

through the same exit wound.

(2) Entry wound - 1/4 " dia with inverted contused

margin an abrasion collar in right anterior axillary

line 5" below nipple - right 8th intercortal space-

right lobe of liver mes entry- small intestine at one

place - came out through exit wound 1/3" in dia in

lower left iliac fosa in the axilary line with inverted

margin.

(3) Entry wound 1/4" dia with contused inverted

margins and abrasion collar placed in the left iliac

fosa- color at one place- small intestine at one place-

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came out this exit would ¾" x 1/2" on right

abdominal flank with everted margin, in anterior

oscillary line 9" bellow nipple.

(4) Entry would 1/3" in dia with contused inverted

margin and abrasion collar over upper and inner part

of left and soft tissue of the arm to came out through

the exit wound 1/3" in dia with everted margin on the

back of left arm 3" above (proximal) elbow.

(5) Entry wound 1/4" in dia on the back of abdomen

4" outer to midline at T12 level, with inverted and

contused margins and abrasions collar mesentry large

intestine at one place exit through a wound 1/4" dia

with inverted margin in the hand.

Along the tracks, the. tissue were lacerated. Fluid

blood red clots were seen inside abdominal cavity

about 1000 cc in volume. Organs appeared pale.

Both sides of the heart were partially full and the

urinary bladder was found full. Stomach contained

about 20 cc food without alcoholic smell. Skull and

brain showed nothing particular.

Opinion Death resulted from hemorrhage and both

due to fire arm injuries mentioned above.”

10.The learned Sessions Judge did not consider it proper to grant

anticipatory bail, rather rejected the same after considering the

submissions made on behalf of the said accused persons observing that

the court had perused the Case Diary, para 90 of which revealed a

very strong motive. There was material against the said accused in the

case diary. The deceased had received multiple abrasions and 5 gun

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shot injuries, thus, it was not a fit case to enlarge the accused on

anticipatory bail.

11.Admittedly, the FIR had been lodged promptly within a period

of two hours from the time of incident at midnight. Promptness in

filing the FIR gives certain assurance of veracity of the version given

by the informant/complainant.

12.The FIR in criminal case is a vital and valuable piece of

evidence though may not be substantive piece of evidence. The object

of insisting upon prompt lodging of the FIR in respect of the

commission of an offence is to obtain early information regarding the

circumstances in which the crime was committed, the names of actual

culprits and the part played by them as well as the names of eye-

witnesses present at the scene of occurrence. If there is a delay in

lodging the FIR, it looses the advantage of spontaneity, danger creeps

in of the introduction of coloured version, exaggerated account or

concocted story as a result of large number of

consultations/deliberations. Undoubtedly, the promptness in lodging

the FIR is an assurance regarding truth of the informant’s version. A

promptly lodged FIR reflects the first hand account of what has

actually happened, and who was responsible for the offence in

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question. (Vide: Thulia Kali v. The State of Tamil Nadu, AIR 1973

SC 501; State of Punjab v. Surja Ram, AIR 1995 SC 2413; Girish

Yadav & Ors. v. State of M.P., (1996) 8 SCC 186; and Takdir

Samsuddin Sheikh v. State of Gujarat & Anr., AIR 2012 SC 37).

13.There is no substantial difference between Sections 438 and

439 Cr.P.C. so far as appreciation of the case as to whether or not a

bail is to be granted, is concerned. However, neither anticipatory bail

nor regular bail can be granted as a matter of rule. The anticipatory

bail being an extraordinary privilege should be granted only in

exceptional cases. The judicial discretion conferred upon the court has

to be properly exercised after proper application of mind to decide

whether it is a fit case for grant of anticipatory bail.

14.In State of M.P. & Anr. v. Ram Kishna Balothia & Anr.,

AIR 1995 SC 1198, this Court considered the nature of the right of

anticipatory bail and observed as under:

“We find it difficult to accept the contention that

Section 438 of the Code of Criminal Procedure is

an integral part of Article 21. In the first place,

there was no provision similar to Section 438 in

the old Criminal Procedure Code….. Also

anticipatory bail cannot be granted as a matter of

right. It is essentially a statutory right conferred

long after the coming into force of the

Constitution. It cannot be considered as an

essential ingredient of Article 21 of the

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Constitution. And its non-application to a certain

special category of offences cannot be considered

as violative of Article 21.”

15.While deciding the aforesaid cases, this Court referred to the

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st

Report of the Indian Law Commission dated 24

th

September, 1969

recommending the introduction of a provision for grant of anticipatory

bail wherein it has been observed that “power to grant anticipatory

bail should be exercised in very exceptional cases”.

16.Ms. Kavita Jha, learned counsel appearing for the

accused/respondents has vehemently advanced the arguments

on the concept of life and liberty enshrined in Article 21 of the

Constitution of India placing a very heavy reliance on the

observations made by this Court in Siddharam Satlingappa

Mhetre v. State of Maharashtra and Ors., AIR 2011 SC 312,

and submitted that unless the custodial interrogation is

warranted in the facts and circumstances of the case, not

granting anticipatory bail amounts to denial of the rights

conferred upon a citizen/person under Article 21 of the

Constitution. We are afraid the law as referred to hereinabove

does not support the case as canvassed by learned counsel for

the accused-respondents. More so, the Constitution Bench of

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this Court in Kartar Singh v. State of Punjab, (1994) 3 SCC

569, while summing up the law in para 368, inter-alia, held as

under:

“Section 20(7) of the TADA Act excluding the

application of Section 438 of the Code of Criminal

Procedure in relation to any case under the Act

and the Rules made thereunder, cannot be said to

have deprived the personal liberty of a person as

enshrined in Article 21 of the Constitution.”

(See also: Narcotics Control Bureau v. Dilip Prahlad Namade

(2004) 3 SCC 619).

Therefore, we are not impressed by the submissions so

advanced by learned counsel for the accused-respondents.

17.This Court in Siddharam Satlingappa Mhetre (supra) after

considering the earlier judgments of this Court laid down certain

factors and parameters to be considered while considering

application for anticipatory bail :

“122. The following factors and parameters can

be taken into consideration while dealing with the

anticipatory bail:

i. The nature and gravity of the accusation and the

exact role of the accused must be properly

comprehended before arrest is made;

ii. 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;

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iii. The possibility of the applicant to flee from

justice;

iv. The possibility of the accused's likelihood to

repeat similar or the other offences.

v. Where the accusations have been made only

with the object of injuring or humiliating the

applicant by arresting him or her.

vi. Impact of grant of anticipatory bail particularly

in cases of large magnitude affecting a very large

number of people.

vii. 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

accused is implicated with the help of sections 34

and 149 of the Indian Penal Code, the court

should consider with even greater care and

caution because over-implication in the cases is a

matter of common knowledge and concern;

viii. 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 the free, fair and full investigation

and there should be prevention of harassment,

humiliation and unjustified detention of the

accused;

ix. The court to consider reasonable apprehension

of tampering of the witness or apprehension of

threat to the complainant;

x. 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 is entitled to an order of bail.

123. The arrest should be the last option and it

should be restricted to those exceptional cases

where arresting the accused is imperative in the

facts and circumstances of that case.

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124. The court must carefully examine the entire

available record and particularly the allegations

which have been directly attributed to the accused

and these allegations are corroborated by other

material and circumstances on record.”

18.Parameters for grant of anticipatory bail in a serious offence

are required to be satisfied and further while granting such relief, the

court must record the reasons therefore. Anticipatory bail can be

granted only in exceptional circumstances where the court is prima

facie of the view that the applicant has falsely been enroped in the

crime and would not misuse his liberty. (See: D.K. Ganesh Babu v.

P.T. Manokaran & Ors., (2007) 4 SCC 434; State of Maharashtra

& Anr. v. Mohd. Sajid Husain Mohd. S. Husain & Ors., (2008) 1

SCC 213; and Union of India v. Padam Narain Aggarwal & Ors.,

(2008) 13 SCC 305).

19.The case at hand, if considered in the light of aforesaid settled

legal proposition, we reach an inescapable conclusion that the High

Court did not apply any of the aforesaid parameters, rather dealt with a

very serious matter in a most casual and cavalier manner and showed

undeserving and unwarranted sympathy towards the accused.

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20.The High Court erred in not considering the case in correct

perspective and allowed the said applications on the grounds that in

the FIR some old disputes had been referred to and the accused had

fair antecedents. The relevant part of the High Court judgment

impugned before us reads as under:

“Considering that the only allegation in the First

Information Report is that there was previously

some dispute between the deceased and the

petitioner and they had quarrelled on account of

the same, let the petitioner above named, who has

fair antecedents, be released on anticipatory

bail……..”

21.In the facts and circumstances of this case, we are of the

considered opinion that it was not a fit case for grant of anticipatory

bail. The High Court ought to have exercised its extraordinary

jurisdiction following the parameters laid down by this Court in above

referred to judicial pronouncements, considering the nature and gravity

of the offence and as the FIR had been lodged spontaneously, its

veracity is reliable. The High Court has very lightly brushed aside the

fact that FIR had been lodged spontaneously and further did not record

any reason as how the pre-requisite conditions incorporated in the

statutory provision itself stood fulfilled. Nor did the court consider as

to whether custodial interrogation was required.

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The court may not exercise its discretion in derogation of

established principles of law, rather it has to be in strict adherence to

them. Discretion has to be guided by law; duly governed by rule and

cannot be arbitrary, fanciful or vague. The court must not yield to

spasmodic sentiment to unregulated benevolence. The order dehors the

grounds provided in Section 438 Cr.P.C. itself suffers from non-

application of mind and therefore, cannot be sustained in the eyes of

law.

22.The impugned judgments and orders dated 19.9.2011 and

25.10.2011 passed by the High Court of Judicature at Patna in Crl.

Misc. Nos.28318 and 33546 of 2011 are, thus, set aside. The

anticipatory bail granted to the said respondents is cancelled.

Needless to say that in case the said respondents apply for regular bail,

the same would be considered in accordance with law. With the

aforesaid observations, appeals stand disposed of.

.................……………………..J.

(Dr. B.S. CHAUHAN)

................……………………..J.

(JAGDISH SINGH KHEHAR)

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New Delhi,

March 14, 2012

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