Q. Whether anticipatory bail can be granted in regard to offences punishable with death or imprisonment for life?
Ans: There cannot be hard and fast rule to grant or refuse anticipatory bail in regard to offences punishable with death or imprisonment with life. In case of “GURBAKSH SINGH SIBBIA V. STATE OF PUNJAB”- reported in AIR 1980 SC 1632, Hon’ble Apex Court has held that….
“According to the sixth proposition framed by the High Court, the discretion under Sec. 438 cannot be exercised in regard to offences punishable with death or imprisonment for life unless, the Court at the stage of granting anticipatory bail, is satisfied that such a charge appears to be false or groundless. Now, Sec. 438 confers on the High Court and the Court of Session the power to grant anticipatory bail if the applicant has reason to believe that he may be arrested on an accusation of having committed “a non-bailable offence”. We see no warrant for reading into this provision the conditions subject to which bail can be granted under Sec. 437(1) of the Code. That section, while conferring the power to grant bail in cases of non-bailable offences, provides by way of an exception that a person accused or suspected of the commission of a non-bailable offence “shall not be so released” if there appears to be reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life. If it was intended that the exception contained in Sec. 437(1) should govern the grant of relief under Sec. 438(1), nothing would have been easier for the legislature then to introduce into the latter section a similar provision.
We have already pointed out the basic distinction between these two sections. Section 437 applies only after a person, who is alleged to have committed a non-bailable offence, is arrested or detained without warrant or appears or is brought before a Court. Section 438 applies before the arrest is made and, in fact, one of the pre-conditions of its application is that the person, who applies for relief under it must be able to show that he has reason to believe that “he may be arrested”, which plainly means that he is not yet arrested. The nexus which this distinction bears with the grant or refusal of bail is that in cases falling under Sec. 437, there is some concrete data on the basis of which it is possible to show that there appear to be reasonable grounds for believing that the applicant has been guilty of an offence punishable with death or imprisonment for life. In cases falling under Sec. 438 that stage is still to arrive and, in the generality of cases thereunder, it would be premature and indeed difficult to predicate that there are or are not reasonable grounds for so believing. The foundation of the belief spoken of in Sec. 437(1), by reason of which the Court cannot release the applicant on bail is, normally, the credibility of the allegations contained in the First Information Report, in the majority of cases falling under Sec. 438, that data will be lacking for forming the requisite belief. If at all the conditions mentioned in Sec. 437 are to be read into the provisions of Sec. 438, the transplantation shall have to be done without amputation. That is to say, on the reasoning of the High Court, Sec. 438(1) shall have to be read as containing the clause that the applicant “shall not” be released on bail “if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life”.
In this process one shall have overlooked that whereas, the power under Sec. 438(1) can be exercised if the High Court or the Court of Session “thinks fit” to do so, Sec. 437(1) does not confer the power to grant bail in the same wide terms. The expression “if it thinks fit”, which occurs in Sec. 438(1) in relation to the power of the High Court or the Court of Session, is conspicuously absent in Sec. 437(1). We see no valid reason for re-writing Sec. 438 with a view not to expanding the scope and ambit of the discretion conferred on the High Court and the Court of Session, but for the purpose of limiting it. Accordingly, we are unable to endorse the view of the High Court that anticipatory bail cannot be granted in respect of offences like criminal breach of trust for the mere reason that the punishment provided therefore is imprisonment for life. Circumstances may broadly justify the grant of bail in such cases too, though of course, the Court is free to refuse anticipatory bail in any case if there is material before it justifies such refusal.