August 8,2018:
Supreme Court Case Analysis:
Siddharam Satlingappa Mhetre v. State of Maharashtra
By: Shivani Johri
The Author, Shivani Johri is a 3rd Year student of Amity Law School, Delhi. She is currently interning with LatestLaws.com.
CITATION- (2011) 1 SCC 694
BENCH- Justice Dalveer Bhandari, Justice K.S. Panicker Radhakrishnan
The personal liberty is the most important fundamental right guaranteed by the Constitution. It is also submitted that it is the fundamental principle of criminal jurisprudence that every individual is presumed to be innocent till he or she is found guilty. Further on proper analysis of section 438 Cr.P.C. the legislative wisdom becomes quite evident that the legislature wanted to preserve and protect personal liberty and give impetus to the age-old principle that every person is presumed to be innocent till he is found guilty by the court.The Apex Court in this judgment has widened the scope of personal liberty in the matter of arrest by police and denial of right of bail to the citizens. In order to save legally sanctioned liberty, the petitioner had to go up to the level of Supreme Court as both at the Sessions Court and High Court level, the anticipatory bail was denied to the petitioner. Only in the Supreme Court, the petitioner was able to safeguard his liberty according to law as provided in the CrPC..
The Apex Court in this case in Para 131 noticed that it is imperative for High Courts through its judicial academies to periodically organize workshops, symposiums, seminars and lectures by the experts to sensitize judicial officers, police officers and investigating officers so that they can properly comprehend the importance of personal liberty vis-à-vis social interests. They must learn to maintain fine balance between the personal liberty and the social interests.
The Apex Court further added in Para 132 that the performance of the judicial officers must be periodically evaluated on the basis of the cases decided by them. In case, they have not been able to maintain balance between personal liberty and societal interests, the lacunae must be pointed out to them and they may be asked to take corrective measures in future.
Brief Facts
The appellant, who belongs to the Indian National Congress party (for short `Congress party') is the alleged accused in this case. The case of the prosecution, as disclosed in the First Information Report (for short `FIR'), is that Sidramappa Patil was contesting election of the State assembly on behalf of the Bhartiya Janata Party (for short `BJP'). In the FIR, it is incorporated that Baburao Patil, Prakash Patil, Mahadev Patil, Mallikarjun Patil, Apparao Patil, Yeshwant Patil were supporters of the Congress and so also the supporters of the appellant Siddharam Mhetre and opposed to the BJP candidate.
On 26.9.2009, around 6.00 p.m. in the evening, Sidramappa Patil of BJP came to the village to meet his party workers. At that juncture, Shrimant Ishwarappa Kore, Bhimashankar Ishwarappa Kore, Kallapa Gaddi, Sangappa Gaddi, Gafur Patil, Layappa Gaddi, Mahadev Kore, Suresh Gaddi, Suresh Zhalaki, Ankalgi, Sarpanch of village Shivmurti Vijapure met Sidramappa Patil and thereafter went to worship and pray at Layavva Devi's temple.
After worshipping the Goddess when they came out to the assembly hall of the temple, these aforementioned political opponents namely, Baburao Patil, Prakash Patil, Gurunath Patil, Shrishail Patil, Mahadev Patil, Mallikarjun Patil, Annarao @ Pintu Patil, Hanumant Patil, Tammarao Bassappa Patil, Apparao Patil, Mallaya Swami, Sidhappa Patil, Shankar Mhetre, Usman Sheikh, Jagdev Patil, Omsiddha Pujari, Panchappa Patil, Mahesh Hattargi, Siddhappa Birajdar, Santosh Arwat, Sangayya Swami, Anandappa Birajdar, Sharanappa Birajdar, Shailesh Chougule, Ravi Patil, Amrutling Koshti, Ramesh Patil and Chandrakant Hattargi suddenly came rushing in their direction and loudly shouted, "why have you come to our village? Have you come here to oppose our Mhetre Saheb? They asked them to go away and shouted Mhetre Saheb Ki Jai."
Baburao Patil and Prakash Patil from the aforementioned group fired from their pistols in order to kill Sidramappa Patil and the other workers of the BJP.
Bhima Shankar Kore was hit by the bullet on his head and died on the spot. Sangappa Gaddi, Shivmurti Vjapure, Jagdev Patil, Layappa Patil, Tammaro Patil were also assaulted. It is further mentioned in the FIR that about eight days ago, the appellant Siddharam Mhetre and his brother Shankar Mhetre had gone to the village and talked to the abovementioned party workers and told them that, "if anybody says anything to you, then you tell me. I will send my men within five minutes. You beat anybody. Do whatever."
According to the prosecution, the appellant along with his brother instigated their party workers which led to killing of Bhima Shanker Kora. It may be relevant to mention that the alleged incident took place after eight days of the alleged incident of instigation.
Law Related
The law relating to bail is contained in sections 436 to 450 of chapter XXXIII of the Code of Criminal Procedure, 1973. Section 436 deals with situation, in what kind of cases bail should be granted. Section 436 deals with the situation when bail may be granted in case of a bailable offence. Section 439 deals with the special powers of the High Court or the Court of Sessions regarding grant of bail. Under sections 437 and 439 bail is granted when the accused or the detenu is in jail or under detention.
The provision of anticipatory bail was introduced for the first time in the Code of Criminal Procedure in 1973. The Law Commission of India, in its 41st Report dated September 24, 1969 pointed out the necessity of introducing a provision in the Code of Criminal Procedure enabling the High Court and the Court of Sessions to grant "anticipatory bail". It observed in para 39.9 of its report (Volume I) and the same is set out as under:
"The suggestion for directing the release of a person on bail prior to his arrest (commonly known as "anticipatory bail") was carefully considered by us. Though there is a conflict of judicial opinion about the power of a court to grant anticipatory bail, the majority view is that there is no such power under the existing provisions of the Code. The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. In recent times, with the accentuation of political rivalry, this tendency is showing signs of steady increase. Apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail."
The Law commission recommended acceptance of the suggestion. The Law Commission in para 31 of its 48th Report (July, 1972) made the following comments on the aforesaid clause:
"The Bill introduces a provision for the grant of anticipatory bail. This is substantially in accordance with the recommendation made by the previous Commission. We agree that this would be a useful addition, though we must add that it is in very exceptional cases that such a power should be exercised.”
This is how S 438 CRPC was born.
- Police custody is an inevitable concomitant of arrest for non-bailable offences. The concept of anticipatory bail is that a person who apprehends his arrest in a non-bailable case can apply for grant of bail to the Court of Sessions or to the High Court before the arrest.
- It is clear from the Statement of Objects and Reasons that the purpose of incorporating Section 438 in the Cr.P.C. was to recognize the importance of personal liberty and freedom in a free and democratic country. When we carefully analyze this section, the wisdom of the legislature becomes quite evident and clear that the legislature was keen to ensure respect for the personal liberty and also pressed in service the age-old principle that an individual is presumed to be innocent till he is found guilty by the court.
Contention(s) of the Parties
According to the prosecution, the Appellant along with his brother instigated their party workers which led to killing of Bhima Shanker Kora. It may be relevant to mention that the alleged incident took place after eight days of the alleged incident of instigation.
Mr. Shanti Bhushan, advocate for the petitioner has contended that the fundamental principle of criminal jurisprudence that every individual is presumed to be innocent till he or she is found guilty should be followed by the court. He also said that the legislature has not circumscribed court's discretion in any manner while granting anticipatory bail, therefore, the court should not limit the order only for a specified period till the charge-sheet is filed and thereafter compel the accused to surrender and ask for regular bail under Section 439 of Code of Criminal Procedure. Further he added that court should not interpret contrary to legislative intention.
The legislature has provided wide discretion to court in the matter of anticipatory bail because the court has to apply it according to the context and circumstances of each case.
Issue(s) discussed in the Case:
- Whether petitioner was eligible to get anticipatory bail under Section 438 of Code
of Criminal Procedure?
- Whether limitation put on the scope of anticipatory bail under Section 438 of Code
of Criminal Procedure by the high court is right?
Decision of the Court
The order of the High Court was set aside and the appeal was allowed. The petitioner was directed to join the investigation and fully cooperate with the investigating agency. In the event of arrest the petitioner shall be released on bail on his furnishing a personal bond in the sum of Rs. 50,000/- with two sureties in the like amount to the satisfaction of the arresting officer.
Summary of discussion on the issues in the judgment
The court here relied on the decision of the Supreme Court Constitution Bench in Gurbaksh Singh Sibbia and Ors. v. State of Punjab [(1980) 2 SCC565] where the scope and ambit of the concept of anticipatory bail was dealt in a comprehensive manner. The scope of judicial discretion in the matter of anticipatory bail and its importance was emphasized by the bench. It was said that legislature can only frame broad guidelines on anticipatory bail and the court has to apply it according to the circumstance of the case.
The court in the instant case said that all subsequent decision after Sibbia’s case (supra) which are contrary to the clear legislative intention of law laid down in Sibbia's case (supra) are per-incuriam. It was also added that in case the conflict between the two views is irreconcilable, the court is bound to follow the judgment of the Constitution Bench over the subsequent decisions of Benches of lesser strength. Many cases over this issue was discussed in the instant case.
Relevance and importance of personal liberty
The court deliberated on the relevance and importance of personal liberty at great length. The historical perspective going back to the Athens in 431 B.C. with thoughts of philosophers and jurists including of Aristotle, Plato, John Stuard Mill, John E.E.D., M.C. Setalvad, Bentham, Harold J. Laski, Roscoe Pound, Blackstone, Dicey, Lord Alfred Denning, and Justice H.R. Khanna were referred and it was concluded that individual liberty is fundamental for human dignity and is indispensable for the advancement of interest of individual and the society. Modern society guarantee liberty to individual and it put a restriction on the arbitrary use of power and authority. In addition there should be balance between individual liberty and peace and order in the society.
Right to life and personal liberty under the Constitution
The court also discussed right to life and personal liberty under the Indian Constitution. It said that a fundamental right such as right to life and personal liberty was framed to reduce the violation of human rights of individual by the arbitrary exercise of powers by state. Article 21-secures this right of every citizen and non-citizen. The court discussed the judicial verdicts on Individual liberty as laid down in various cases by Supreme Court. The trend after analysing these cases shows that the concept of Individual liberty has been widened and it includes freedom of movement and locomotion against arbitrary exercise of power and authority [A.K. Gopalan v. The State of Madras [(AIR 1950 SC 27)] to all aspects which guarantees human dignity [Khedat Mazdoor Chetana Sangathan v. State of M.P. and Ors. [(1994) 6 SCC 260)],
The court also noticed that in course of time, the scope of this application of the Article against arbitrary encroachment by the executives has been expanded by liberal interpretation of the components of the Article in tune with the relevant international understanding. Thus protection against arbitrary privation of "life" no longer means mere protection of death, or physical injury, but also an invasion of the right to "live" with human dignity and would include all these aspects of life which would go to make a man's life meaningful and worth living, such as his tradition, culture and heritage. [Francis Coralie Mullin v. Administrator,UnionTerritory of Delhi and Ors. (1981) 1 SCC 608]. The court also did a brief survey of other countries to ascertain how life and liberty has been protected in other countries. The court also referred to international charters i.e. Universal Declaration of Human Rights and Covenant on Civil and Political Rights and European Convention on Human Rights, 1950.
A reference to the Law Commission of India’s 177th Report under the heading 'Introduction to the doctrine of "arrest" was also made in which the importance of the right to liberty was emphasized.
Concluding all the above discussion the court in Para 92 emphasized that just as the Liberty is precious to an individual, so is the society's interest in maintenance of peace, law and order. Both are equally important.
Limitations on the power of anticipatory bail
Court in Para 93 emphasized that the misunderstanding of the smaller courts regarding Section 438 CrPC that it should be invoked only in exceptional or rare cases is the major cause of overcrowding of under trials prisoners in the prisons of the country. The court in the instant case said that the courts considering the bail application should try to maintain fine balance between the societal interest vis-à-vis personal liberty while adhering to the fundamental principle of criminal jurisprudence that the accused that the accused is presumed to be innocent till he is found guilty by the competent court. The police must record the valid reasons of arrest.
The court throughout the judgment criticized the erroneous interpretation of section 438 for anticipatory bail in many Supreme Court cases including Salauddin Abdulsamad Shaikh v. State of Maharashtra, K.L. Verma v. State and Anr., Adri Dharan Das v. State of West Bengal and Sunita Devi v. State of Bihar and Anr., Naresh Kumar Yadav v. Ravindra Kumar. In all these cases the Supreme Court observed that "the power exercisable under Section 438 Code of Criminal Procedure is somewhat extraordinary in character and it should be exercised only in exceptional cases. This view the court in instant case said that this view is contrary to the legislative intention and added that court should exercise this power with care and prudence but it should not be subjected to self-imposed limitations which are not intended by legislature.
The court here discussed at length the erroneous findings of the Apex Court in case Salauddin Abdulsamad Shaikh v. State of Maharashtra where it was held that anticipatory bail should be granted only for a limited period and on the expiry of that duration it should be left to the regular court to deal with the matter.
Court discussed the issue that whether anticipatory bail can be granted for limited duration only?
The court said it is not a valid conclusion and relied on the following reasons to nullify this preposition:
Legislative Intent and discretion to court- The court said the legislature has not set any limitation of the period of anticipatory bail. Instead a wide discretion has been given to court to grant or cancel the application of anticipatory bail as per facts and circumstance of the case.
Maneka Gandhi Case and Article 21- Court in Para 107 said that restriction on provision of anticipatory bail under section 438 CrPC will limit the personal liberty of the accused granted under Article 21 of the constitution. It would not stand the test of fairness and reasonableness which is implicit in Article 21 of the Constitution after the decision in Maneka Gandhi's case (supra) in which the court observed that in order to meet the challenge of Article 21 of the Constitution the procedure established by law for depriving a person of his liberty must be fair, just and reasonable [Para 107].
Language of section 438 CrPC-
Clause (1) of Section 438 is couched in terms, broad and
unqualified. By any known canon of construction, words of width and amplitude ought not generally to be cut down so as to read into the language of the statute restraints and conditions which the legislature itself did not think it proper or necessary to impose. Section 438 Code of Criminal Procedure does not mention anything about the duration to which a direction for release on bail in the event of arrest can be granted [Para 108] .
Constitution Bench decision in Sibbia’s case- The courts should not impose restrictions on the ambit and scope of Section 438 Code of Criminal Procedure which are not envisaged by the Legislature. The court cannot rewrite the provision of the statute in the garb of interpreting it.
The court final held in Para 117 that once the anticipatory bail is granted then the protection should ordinarily be available till the end of the trial unless the interim protection by way of the grant of anticipatory bail is curtailed when the anticipatory bail granted by the court is cancelled by the court on finding fresh material or circumstances or on the ground of abuse of the indulgence by the accused.
Scope and Ambit of Anticipatory Bail
The court here discussed the scope and ambit of anticipatory bail and said that principles
regarding it has been laid down in the Sibbia’s case should be followed by the court (Para 119)-
- a) Section438 (1) is to be interpreted in light of Article 21 of the Constitution of India.
- b) Filing of FIR is not a condition precedent to exercise of power under Section 438.
- c) Order under Section 438 would not affect the right of police to conduct investigation.
- d) Conditions mentioned in Section 437 cannot be read into Section 438.
- e) Although the power to release on anticipatory bail can be described as of an
"extraordinary" character this would "not justify the conclusion that the power must be
exercised in exceptional cases only." Powers are discretionary to be exercised in light of the
circumstances of each case.
- f) Initial order can be passed without notice to the Public Prosecutor. Thereafter, notice must
be issued forthwith and question ought to be re-examined after hearing. Such ad interim
order must conform to requirements of the section and suitable conditions should be
imposed on the applicant.
Factors and parameters to be considered by the court while dealing with the anticipatory bail
The court laid down the following factors and parameters that can be taken into consideration
by the court while dealing with the anticipatory bail in Para 122 and said these are not
exhaustive but only illustrative.
- The nature and gravity of the accusation and the exact role of the accused must be properly
comprehended before arrest is made;
- 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;
iii. The possibility of the applicant to flee from justice;
- The possibility of the accused's likelihood to repeat similar or the other offences.
- Where the accusations have been made only with the object of injuring or humiliating the
applicant by arresting him or her.
- 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;
- The court to consider reasonable apprehension of tampering of the witness or
apprehension of threat to the complainant;
- 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.
The court referred to case Joginder Kumar v. State of U.P. and Ors. [(1994) 4 SCC 260] in which reference was made to the 3rd report of the National Police Commission, where it is mentioned that the quality of arrests by the Police in India mentioned power of arrest as one of the chief sources of corruption in the police. The report suggested that, by and large, nearly 60% of the arrests were either unnecessary or unjustified and that such unjustified police action accounted for 43.2% of the expenditure of the jails.
Doctrine of per incuriam
The court also discussed the doctrine of per incuriam [Para 139-151] which was applied in the case and discussed many Supreme Court and foreign judgments on this doctrine. It concluded that not only the judgment of a larger strength is binding on a judgment of smaller strength but the judgment of a co-equal strength is also binding on a Bench of judges of co-equal strength. It further added that in case there is no judgment of a Constitution Bench or larger Bench of binding nature and if the court doubts the correctness of the judgments by two or three judges, then the proper course would be to request Hon'ble the Chief Justice to refer the matter to a larger Bench of appropriate strength.
The court lamented that in spite of the clear directive in this regard in many cases by Supreme -Court, the High Court and lower courts ignored the judicial discipline in this matter and overlooked the judgments of constitution benches by citing minor difference in the facts of the cases.
In the instant case, the High court ignored the ratio of Sibbia’s case which has comprehensively dealt with all the facets of anticipatory bail enumerated under Section 438 of Code of Criminal Procedure. The High Court order was thus set aside and the SLP was allowed.
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