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Gurbaksh Singh Sibbia and Others v. State of Punjab

Gurbaksh Singh Sibbia and Others v. State of Punjab 

Section 438(1) of the Code sets forth a condition that must be satisfied before anticipatory bail can be granted. The applicant must demonstrate that they have a “reason to believe” that they may be arrested for a non-bailable offence. The use of the expression “reason to believe” indicates that the applicant’s belief in potential arrest must be grounded in reasonable grounds. Mere ‘fear’ does not constitute ‘belief,’ therefore, it is insufficient for the applicant to merely show a vague apprehension that someone may accuse them, leading to their arrest.

The grounds upon which the applicant’s belief is based must be subject to objective examination by the court, allowing the court to determine whether the applicant has reasonable grounds for such belief. Hence, Section 438(1) cannot be invoked based on vague and general allegations, as it would result in an excessive number of anticipatory bail applications. Anticipatory bail is a measure to safeguard individual liberty; it is not a license for committing crimes nor a shield against any and all accusations, whether likely or unlikely.

If an application for anticipatory bail is submitted to the High Court or the Court of Session, it is imperative that the court independently assess the merits of the case and determine whether grounds exist for granting such relief. The court cannot defer the decision to the concerned Magistrate under Section 437 of the Code to decide at a later time when the occasion arises. Adopting such an approach would undermine the very purpose of Section 438.

The filing of a First Information Report (F.I.R.) is not a prerequisite for exercising the power under Section 438. The imminent likelihood of arrest, based on reasonable belief, can be established even in the absence of an F.I.R. Anticipatory bail can still be granted after an F.I.R. is filed, provided the applicant has not been arrested.

However, the provisions of Section 438 cannot be invoked once the accused has been arrested. Granting “anticipatory bail” to an accused already under arrest presents a contradiction, particularly concerning the offence(s) for which the arrest occurred. In such cases, the accused must seek remedy under Section 437 or Section 439 of the Code if they wish to be released on bail for the offence(s) they are arrested for.

Citation: (1980) 2 SCC 565

Shivendra Pratap Singh


High Court Lucknow

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