Topic: Critically analyse the case of Gurbaksh Singh Sibbia vs.

State of Punjab
Introduction

The Code of Criminal Procedure in 1898 did not have a provision for
providing bail in anticipation of arrest i.e., anticipatory bail
In the 41st Report of the Law Commission the idea of Anticipatory
Bail was introduced.
The need for granting this kind of a bail was observed because many
times people lodge false complaints against their rivals who have
influence in the society so that they are seen negatively in the eyes of the
society for being in jail as in our society the idea of being in jail is seen
as a stigma and hence serve the malicious purpose .
Another reason for granting this bail is, if an accused has very slight
chance of escaping the country or misuse the freedom he/she has then it
is useless for him/her to stay in the custody for some time and then
further apply for bail.
The Joint Select Committee of the Parliament also thought this bail
was necessary so that the freedom of an individual is not unnecessarily
curtailed. The direction for this kind of a bail has been laid down in
Section 438 of Code of Criminal Procedure of 1973.

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 Critical analysis of Gurbaksh Singh Sibbia vs. state of
Punjab, 1980

The case of Gurbaksh Singh Sibbia Vs. State of Punjab, 1980 is a

landmark case in regards to the concept of ‘Anticipatory Bail’ in India.
As such the term “Anticipatory bail’ has not been mentioned anywhere
in any of the Indian legislations. But Section 438 of the Code of
Criminal Procedure, 1973 provides for bail in anticipation of arrest.
According to this section,

“a person who anticipates having committed a non-bailable offence can

apply to the high court or session’s court for bail in the event of arrest”.

The court has the discretion to grant or reject his bail application.  This
case is every essential because the constitutional bench in this case laid
down 8 guidelines to be followed by the courts while exercising their
discretionary power to grant or reject anticipatory bail.

The 5 judge constitutional Bench comprised of:

Justice Y.V .Chandrachud , Justice P.N. Bhagwati,  Justice N.L.

Untwalia, Justice R.S. Pathak and Justice O. Chinnappa Reddy. 

This assignment aims at critically analysing and commenting on the

arguments and judgment of this particular case.
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 Facts of the case

Mr. Gurbaksh Singh Sibbia, the appellant, was the Minister of Irrigation
and Power in the Government of Punjab under the Congress regime. He
and a few others were facing serious accusations of corruption and
undue use of power. The minister along with the other
appellants apprehends arrest.

The appellants applied for anticipatory bail under Section 438 of the
code in the High Court of Punjab and Haryana. They prayed for the HC
to direct the appellants to be released on bail in the event of arrest on the
basis of the above stated charges.

The application was dismissed by the full bench of the High Court but
on special leave to appeal, the application was allowed by the Supreme
Court.

Ordinary Bail and Anticipatory Bail

 An Anticipatory Bail is granted when a person is anticipating an
arrest and it comes into effect when as soon as arrest takes place.
On the other hand an Ordinary bail is granted only after the arrest
has taken place and the arrested person is let off from the jail and
police custody.

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 Ordinary bail comes to effect after the arrest or post-arrest and the
Anticipatory bail comes to effect before arrest or pre-arrest, that is,
if the person is arrested consequent to the same accusation then
he/she will be let go on Anticipatory bail.
 Unlike an ordinary bail the Anticipatory bail, under Section 438 of
the Code provides protection to the applicant and a certain amount
of immunity from imprisonment. This is not true for an ordinary
bail because it comes to effect after the person has been taken into
the custody of the police.
 By reading Section 439 it ordinary bail can be invoked only after
the person has been admitted to jail. That is to say that an Ordinary
bail is granted after arrest. But by reading Section 438 dealing with
Anticipatory bail, the person will not be admitted to jail as the bail
comes to effect on the threat of the arrest itself.
So we can say that an Anticipatory bail is granted at the very time
of arrest.
 In Ordinary bail the release of the accused from the jail custody
after Section 437 of the Code is invoked is an essential part but in
Anticipatory bail the release from jail custody is not needed as the
bail is effective as soon as arrest takes place.

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Laws relating to anticipatory bail under Cr.P.C

Sections 437 and 438 of the Code consist of provisions regarding grant
of bail to a person apprehending an arrest.

Section 437, specifically, describes instances or circumstances when

bail may be granted for a non-bailable offence. Whereas, Section-438
deals with the provisions regarding grant of bail to a person
apprehending an arrest. 

According to Section 437, a person may be released on bail if he has

been detained without a warrant for the suspicion of commission of a
non-bailable offence and if the court or investigating officer do not find
a reasonable ground for believing that the suspect has committed a non-
bailable offence but find ground for further inquiry into his guilt. The
clauses have certain riders attached to them which ascertain the
circumstances in which the bail must not be granted.

Section 438 includes provisions regarding:

Who can apply for anticipatory bail? ,

Who is it to be applied to’,

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 What are the conditions that must be considered while granting an
anticipatory bail, and

Who can grant bail in specific circumstances,

According to this section, a person who apprehends arrest on suspicion

or accusation of commission of a non-bailable offence may apply for
anticipatory bail to the High Court or the Session’s court. 

Arguments by parties

Appellant’s Arguments were:

1. The appellant’s in the High court trial contended that the

appellants, Mr. Gurbaksh Singh Sibbia and others held high
positions in the Punjab Ministry and were unlikely to abscond or
avoid facing the trial. Thus, they must be granted anticipatory
bail.
2. The appellant’s in their appeal to the Supreme court contended
that:

 The power conferred by Section 438 on the HC and Sessions

court to grant anticipatory bail is not necessarily limited to the

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 circumstances or contingencies as summarised by the full bench
of the High Court. 
 The concerned court must have the discretion to
grant anticipatory bail depending upon the circumstances and
facts of that particular case.
 The denial of bail amounts to deprivation of Right to life and
personal liberty. Thus, the courts should lean away from the
imposition of restrictions that are not needed in regards to the
provisions of Section 438 when there are no such restrictions
laid down by the legislature in that section.
 Section 438 provides for the procedure of granting of an
anticipatory bail. It is concerned with the Right to Life and
Personal liberty of an individual who is yet to be found guilty in
the commission of a non-bailable offence. Thus, the section and
its provisions must be tested to examine their fairness.
Imposition of unreasonable grounds must also be taken into
account while determining the scope of Section 438. If the court
imposes an unfair restriction on the Individual’s right to obtain
an anticipatory bail, it would be violative of Article 21 and is
liable to be struck down.

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High Court’s Contention regarding the First argument:

The High Court’s Full Bench rejected the appellant’s contention on the
account of negation of equality in considering the position and status of
the party or individual while granting an anticipatory bail.

According to the Full Bench, this contention was illogical and

aggravating.

Full Bench’s Arguments and Grounds for rejection:

 The powers conferred upon High courts and Sessions courts for
grant of anticipatory bail under Section 438 must be used in a
restricted manner in exceptional cases as these powers are of an
extraordinary nature/character.
 The Code of Criminal Procedures, 1973 does not provide for
authority to the courts to grant protective anticipatory bail for
offences yet to be committed or accusations that have not been
far levelled.
 The limitations provided in Section 437 must be read with
Section 438 while granting an anticipatory bail. 
 If the investigating officer suspects a legitimate ground for the
individual’s remand to the police custody under the Section

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 167(2) of the Code and Section 27 of the Evidence Act, the
power conferred under Section 438 must not be exercised.
 This power cannot be exercised in regards to offences that
involve death penalty and life imprisonment as punishments
unless the court is of the view that the charges are baseless and
untrue.
 In cases of grave economic offences involving corruption, the
court should not exercise its discretion to grant anticipatory bail
citing public and state interest.
 Mere allegations of mala fide intention should not be entertained
by the court. The court should be satisfied with the materials and
evidence before it and decide accordingly whether the
accusations are true or false.

Judgment

Obiter dictum

The appeals and special leave applications before the Supreme Court
were disposed off. The Supreme Court held that the discretion of
granting Anticipatory bail must be used more objectively and the higher
courts have the power to correct this discretion if the need arises. A dual
protection has been provided to this system so that there is no misuse if
the discretion and the process. 

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In the case of Directorate of Enforcement v P.V. Prabhakar Rao the
Supreme Court held that Anticipatory bail can only be granted by a High
Court or a Sessions Court only after they have exercised their power of
judicial discretion properly.
The court, be it for Ordinary bail under Section 437 and Section 439 of
the Code or an Anticipatory bail under Section 438, is required to
exercise their discretionary power wisely and not arbitrarily. The
granting of the bail should be based on reasonable grounds.

The constitutional bench in this case also laid down t guidelines for
exercise of discretionary power by the High court and sessions court
while allowing or rejecting application for anticipatory bail.

The guidelines laid down are:

1. The power though of ‘extraordinary character’ does not justify

its use in exceptional cases. Due care, caution and
circumspection must be used while exercising such powers.
2. The Individual applying for anticipatory bail must have a
reasonable apprehension of getting arrested for a non-bailable
offence, which can be objectively examined by the court.
3. Anticipatory bail must not be denied in cases where the accused
is suspected to have committed an offence punishable in the

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 form of death penalty or life imprisonment unless the court has
sufficient evidence before it to justify the refusal.
4. Blanket or protective orders of bail should not be passed. Also,
for efficient investigation, certain conditions can be imposed
under Section-438(2) such as on discovery of a material or
evidence in regards to the case.
5. Filing of FIR is not a condition precedent to the grant of
anticipatory bail under section 438 and the individual can be
granted bail as long as no arrest has been made.
6. The provisions under Section 438 cannot be invoked after the
arrest has been made.
7. Under Section 438, interim bail order can be passed without
issuing a notice to the Public Prosecutor but it should be
mandatorily issued to him afterwards. The court has the
discretionary powers to impose suitable conditions in case of
such interim bails.
8. The court has the power to limit the operation of anticipatory
bail orders until after the FIR is filed. The applicant may be
asked to obtain a bail order under Sections 437 or 439 of Cr.P.C.
after the filing of FIR has taken place.

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 Ratio Decidendi of the case

The five judges’ bench was of the view that the discretionary power
conferred upon the High courts and Sessions Courts, by the legislature
can be accounted for by the fact that the criminal justice system cannot
be engulfed in a straight jacket formula and the exercise of these powers
depend upon the facts and circumstances of the different cases. And as
no two cases have similar facts, the courts must be provided with a free
hand to exercise their powers accordingly. 

According to Justice Chandrachud, the society has a vital interest in

the right to personal liberty and the investigational power of the police
even though relatively their importance depends upon the political
conditions of the state at any given point of time. He highlighted that it
was the court’s task to figure out how to strike a balance between the
two and determine the scope of the Section 438 under the Code of
Criminal Procedure, 1973.

Justice Chandrachud has also pointed out the term “reason to believe”
means the apprehension must be founded upon reasonable grounds and
not just a mere ‘belief’ or ‘fear’. The reason for this is that if an
application for anticipatory bail is applied without any ground for the
apprehension of arrest, the court gets overburdened with unnecessary

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cases and applications. This hampers with the efficient working of the
judicial system.

Critical Analysis of the Case

The Full Bench’s decision of limiting section 438’s use only to

exceptional cases citing it’s extraordinary character was hampering with
the deliverance of Justice and equality before the law. A person wrongly
accused of a non-bailable offence would have no respite if such a
restriction was put on the exercise of discretionary powers under
Section-438.

Also, there was ambiguity regarding the term ‘exceptional cases’ as the
full bench did not specify under what exceptions was the use of powers
conferred under Section 438 allowed.

Thus, the Constitutional bench’s decision of setting aside this argument

was logical and promoted equity.

Also, the Constitutional bench’s decision to impose certain restrictions

on the anticipatory bail for efficient investigation is a better guideline in
contrast to the High Court’s Full Bench’s decision which implied that
the power under 438 must not be exercised at all.

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This curtailed the individual’s right to personal liberty and to procure a
bail warrant which in turn violated Article 21 of Fundamental Rights.

I would like to state few points that shows how the anticipatory bail
interfere with the separation of power concept:

 Anticipatory bail is a matter which is taken to court on mere

presumption of threat of arrest. The matter is not of any kind of
criminal nature yet. This does not allow the Investigating agency
the scope to work on the case and defeats the purpose of granting
investigative authority to these agencies .This will result in the
court interfering with the powers and work of the police thus
disturbing the separation of power.
 Anticipatory bail can lead to the misuse of the justice system to a
large extent and that will affect the smooth functioning of the
Justice System and the reason is that the Court is dealing with a
situation based on presumption and in a pre-mature stage where the
matter has not even taken a criminal nature.
 Anticipatory bail is an anomaly of law when we see it in terms of
the existing concept of bail. It is beneficial only for the rich and
influential people but not so advantageous for others.

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 Suggestions

The following suggestions can prevent curtailment of the

individual’s personal liberty seeking anticipatory bail :

 On releasing a person on anticipatory bail, his passport, deed for

title of property or any other such documents must be seized in
order to prevent him from absconding or avoiding the trial.
 The court must direct the accused to furnish an undertaking in
regards to not tampering with the evidence and not visiting the
witness’s residence to threaten him/her.
 The accused must be directed to join the investigation procedure
and if he does not comply with such a direction, he should be
arrested.

Overall in my opinion the decision given by the 5 judge constitutional

bench was logical and practical and in no way violative of power
conferred upon the High court and session courts regarding anticipatory
bail. And the decision in the case was also not violative of the accused
personal liberty and freedom.

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 Conclusion

In my concluding word I would like to say that the provision of section

438 regarding anticipatory bail should not be suspected to contain
something sensitive which need to be handle with care and caution.

There should be a wise exercise of power by the High courts and session
courts regarding the grant of anticipatory bail.

There should neither be any set of guidelines or straight jacket formulae

for the grant or refusal of anticipatory bail nor should there be made any
attempt too because every case are different from the other in terms of
the fact and circumstance of the cases and thus every case cannot be
adjudicated on the basis of same set of rules and guidelines

Anticipatory bail is a device innovated to secure the individual’s liberty

and it is neither a passport to the commission of crimes nor a shield
against any kinds of accusation, likely or unlikely.

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