GURBAKSH SINGH SIBBIA & ORS. VS. STATE OF PUNJAB1980 AIR 1632,
- The Supreme Court, in disposing of the appeals and special leave applications, has emphasized the need for a more objective application of discretion in granting anticipatory bail. It asserted that higher courts retain the authority to rectify any misuse of this discretion. To safeguard against such misuse and ensure procedural integrity, a dual protection mechanism has been instituted. The constitutional bench has thus set aside the judgment of the Full Bench and delineated guidelines for the exercise of discretionary power.
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The power despite its ‘extraordinary character’ does not justify its invocation solely in exceptional cases. Prudent care, caution, and circumstances are necessary when exercising such authority.
- The petitioner seeking anticipatory bail must demonstrate a credible fear of imminent arrest for a non-bailable offense, subject to objective evaluation by the court.
- Anticipatory bail shall not be withheld in cases where the accused is suspected of having committed an offense punishable by death penalty or life imprisonment, unless the court is presented with sufficient evidence justifying such denial.
- 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.
- The filing of FIR is not a prerequisite for the provision of anticipatory bail under Section 438. Bail may be granted to the individual as long as no arrest has occurred.
- The provisions under Section 438 cannot be invoked after the arrest has been made.
- The arrestee may be allowed to meet with their attorney during the interrogation, although not necessarily throughout the entire process.
- The court is vested with the authority to restrict the effect of anticipatory bail orders until the filing of the FIR. The petitioner may be directed to seek a bail order pursuant to Sections 437 or 439 of the Code of the Criminal Procedure subsequent to the lodging of the FIR.
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