Equivalent citations: 1980 AIR 1632, 1980 SCR (3) 383 Author: Y Chandrachud Bench: Chandrachud, Y.V. (Cj), Bhagwati, P.N., Untwalia, N.L., Pathak, R.S., Reddy, O. Chinnappa (J) PETITIONER: GURBAKSH SINGH SIBBIA ETC. Vs. RESPONDENT: STATE OF PUNJAB DATE OF JUDGMENT09/04/1980 BENCH: CHANDRACHUD, Y.V. ((CJ) BENCH: CHANDRACHUD, Y.V. ((CJ) BHAGWATI, P.N. UNTWALIA, N.L. PATHAK, R.S. REDDY, O. CHINNAPPA (J) CITATION: 1980 AIR 1632 1980 SCR (3) 383 1980 SCC (2) 565 CITATOR INFO : R 1982 SC 149 (259) E&R 1985 SC 969 (6,8,12) ACT: Bail-Anticipatory Bail-Section 438 of the Code of Criminal Procedure Code, 1973 (Act 2 of 1974), Scope of- Judicial balancing of personal liberty and the investigational powers of the Police, explained. HEADNOTE: The appellant herein, Sri Gurbaksh Singh Sibbia was a Minister of Irrigation and Power in the Congress Ministry of the Government of Punjab. Grave allegations of political corruption were made against him and others whereupon applications were filed in the High Court of Punjab and Haryana under section 438 of the Criminal Procedure Code, praying that the appellants be directed to be released on bail, in the event
their arrest on the aforesaid charges. Considering the importance of the matter, a learned single Judge referred the applications to a Full Bench, which by its judgment dated September, 13, 1977 dismissed them, after summarising, what according to it is the true legal position, of s. 438 of the Code of Criminal Procedure, 1973 (Act 2 of 1974) thus: (1) The power under Section 438, Criminal Procedure Code, is of an extra-ordinary character and must be exercised sparingly in exceptional cases only. (2) Neither Section 438 nor any other provision of the Code authorises the grant of blanket anticipatory bail for offences not yet committed or with regard to accusations not so far levelled. (3) The said power is not unguided or uncanalised but all the limitations imposed in the preceding Section 437, are implicit therein and must be read into Section 438. (4) In addition to the limitations mentioned in Section 437, the petitioner must make out a special case for the exercise of the power to grant anticipatory bail. (5) Where a legitimate case for the remand of the offender to the police custody under Section 167(2) can be made out by the investigating agency
The appellants contended: (a) The power conferred by section 438 to grant anticipatory bail is "not limited to the contigencies" summarised by the High Court; (b) The power to grant anticipatory bail ought to be left to the discretion of the Court concerned, depending on the facts and circumstances of each particular case; (c) Since the denial of bail amounts to deprivation of personal liberty; Courts should
personal liberty of an individual who has not been convicted of the offence in respect of which he seeks bail and who must be presumed to be innocent. The validity of that section must accordingly be examined by the test of fairness and which is implicit in Article 21. If the legislature itself were to impose an unreasonable restriction could have been struck down as being violative of Article 21. Therefore, while determining the scope of section 438, the Court should not impose any unfair or unreasonable limitation on the individual's right to obtain an order of anticipatory bail. Imposition of an unfair or unreasonable limitation would be violative of Article 21 irrespective of whether it is imposed by legislation or by judicial decision.