LexPARVINDERJIT SINGH AND ANR. versus STATE (U.T. CHANDIGARH) AND ANR.
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[2008] 15 S.C.R. 155 1" PARVINDERJIT SINGH AND ANR. A II. STATE (U.T. CHANDIGARH) AND ANR. (Criminal Appeal No. 1716 of 2008) NOVEMBER 3, 2008 B [DR. ARIJIT PASAYAT AND C.K. THAKKER, JJ.] Code of Criminal Procedure, 1973: s. 438 - Exercise of power under - Scope - Held: c Normally a direction should not be issued to the effect that applicant shall be released on bail 'wherever affested for which ever offence whatsoever' - Such order should not be passed as it would serve as blanke.t to cover or protect any and every ~ kind of unlawful activity. D ss.438 and 439 - Scope of - Distinction between. s. 439 - Interim order not to arrest the applicant- Pending anticipatory bail - Held: Cannot be passed, as it would amount to interference with the investigation. E The appellants filed application under s.482 Cr.P.C. praying for quashing the proceedings in FIR registered """' in respect of offences punishable under ss.406, 420 and 1208 IPC. In essence, the prayer was for grant of F protection under s.438 Cr.P.C. The High Court noted that this was not a case where any protection in terms of s. 438 Cr.P.C. was to be extended. Hence the instant appeals. G Disposing of the appeals with certain directions, the Court HELD: 1.1. The facility which s.438 Cr.P.C. gives is 155 H 156 SUPREME COURT REPORTS [2008) 15 S.C.R. .f) A generally referred to as 'anticipatory bail'. This expression ;- > whic~ 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 8 anticipation of arrest. Any order of bail can be effective only from the time of arrest of the accused. The bail is ~· basically release from restraint, more particululy the custody of Police. The distinction between an ordinary order of bail and an order under s.438 Cr.P .C. is that c whereas the former is granted after arrest, and therefore . means release from custody of the Police, the latter is . granted in anticipation· of arrest and is therefore effective at the very momen't of arrest. It is well-known that bail is ordinary manifestation of arrest, that the Court thinks first D to make an order is that in the event of arrest a person ~ shallJ't?~ [el~ased on bail. Manifestly there is no question of release ·d.n bail unless the accused is arrested, and ther~fore, i~is only on an arrest being effected the order I - becomes operative. The power exercisable under s.438 ' E is sorrewhat extraordinary in character and it is only in exceptional cases where it appears that the person may be falsely implicated or where there are reasonable grounds for holding that a person accused of an offence r is not likely to otherwise misuse his liberty then power .F is to be exercised under s.438. The power being of important natur~ 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 G object which is sought to be achieved by s.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 H being sent to jail. [Para 6] [162-C-H; 163-A-D] PARVINDERJIT SINGH AND ANR. v. STATE (U.T. 157 CHANDIGARH) AND ANR. Gur Baksh Singh v. State of Punjab, [1980] 2 SCC 565, A relied on. Balachand Jain v. State of Madhya Pradesh, AIR (1977) SC 366, referred to. 1.2. S.438 is a procedural provision which is concerned with the personal liberty of an individual who is entitled to plead innocence, since he is not on the date 8 of application for exercise of power under s.438 Cr.P.C. convicted for the offence in respect of which he seeks C bail. The applicant must show that he has 'reason to believe' that he may be arrested in a non~bailable offence. Use of the expression 'reason to believe' shows that the applicant may be arrested must be founded on reasonable grounds. Mere "fear" is not 'belief' for which . 0 reason it is not enough for the applicant to show that he has some sort of vague apprehension that some one is going to make an accusation against him in pursuance ' of which he may be arrested. Grounds on which the belief of the applicant is based that he may be arrested
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