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    Case Law: Gurbaksh Singh Sibbia & Others. V. State Of Punjab (1980) – Know Here

    This Case Comment on “Gurbaksh Singh Sibbia & Others. V. State Of Punjab (1980)“; is written by Kashish Goyal. She is Content Writer & Legal Researcher at Legal Thirst.

    Gurbaksh Singh Sibbia & Others. V. State Of Punjab (1980)


    (1980 AIR 1632 , 1980 SCR (3) 383)


    The Appellant named “Shri Gurbaksh Singh Sibbia” who was a Member of Irrigation and Power in the government of Punjab under the Congress regime and some other members apply in the High Court of Punjab and Haryana for Anticipatory bail under Section 438 of Code of Criminal procedure 1973. It was stated that there were grave allegations of corruption and misuse of power made against him and others; under Section 5 (2) Prevention of Corruption Act  and Section 406, 409, 477 A and 120 B of Indian penal Code 1860. They prayed to the Court for directing them to release him on bail on the above said charges. But the High Court dismissed the bail. After this they filed in the Supreme Court as a special leave appeal. 


    The High court dismissed the bail on the grounds:

    1. The Court stated that the power which is given under Section 438 of Code of Criminal Procedure is extraordinary and it must be taken out in special cases or in exceptional cases only. 
    2. The court cannot grant blanket order under section 438 for the offense which has not been committed yet.
    3. Mere allegations of the mala fide allegation are inadequate, there must be some material allegation for such accusations.
    4. The Discretion under Section 438 of Code of criminal Procedure cannot be exercised in serious economic cases where there is larger interest of the public. 
    5. When any case is made out by the by the investigating agency under Section 167 (2) i.e. for the remand; and any information is likely to be receive from the offender under Section 27 of the Indian Evidence Act 1872  , the in this case the power granted under Section 438 should not exercised. 
    6. The limitations which are mentioned in section 437 of Code of criminal Procedure 1973 are implicit under Section 438 of Code of criminal Procedure 1973. 
    7. The Court also rejected the contention which as argued by the appellant that; they are in the position of high status they would not abscond and also they are willing to face the trial. While rejecting this contention, the bench said that; if they grant bail on the basis of high status it will amount to violation of the concept of equality before law. 
    8. When any offences which are punishable with death or imprisonment for life, for these kinds of offense, the discretion cannot be exercised under Section 438 unless the court thinks so. 


    • Whether the appellant is entitled to Anticipatory Bail under 438 of code of Criminal procedure 1973?
    • Whether there is violation of personal liberty under Article 21 of Indian Constitution?

    Obiter Dictum

    Mere fear is not enough or, on the basis of vague apprehension that someone is going to make an arrest, not enough for the applicant to apply for the bail. Otherwise the application for the bail will be as large. Here the applicant does not need to make an application of facts like in civil cases; but he has to disclose some specific facts in order to enable the court to judge the reasonableness. It must be clear and specific .This is the only place where we can find the conflict if any; between the right of the individual’s personal liberty and right of the police to investigate the case can be avoided. 

    When any application is made to the High Court and Court of Session for granting the anticipatory bail; then they should apply their own judicial mind instead of acting as per the decision of the magistrate under Section 437. 

    Provisions of Section 438

    In Gurbaksh Singh Sibbia & Others. V. State Of Punjab (1980); The court said that; the provisions of Section 438 will not be invoked after the arrest is made.

    Blanket order is not generally passed in case of anticipatory bail. As we stated above, there must be some reasonable grounds then only it can be said that there is genuine apprehension that the applicant may be arrested. Blanket order means a blanket to cover or protect the unlawful activities.

     For example if any person commits murder in the presence of public , then such order will restrict the prompt investigation into the offense which we cannot predict when order was passed. Therefore, it was stated that the order of anticipatory Bail interferes with the right and duty of the police investigation. .It was held that when the court is passing the order of anticipatory bail, they should particularly specify the offenses in respect of which the order will be effective. 

    The order of anticipatory bail can be passed without giving notice to the public prosecutor an interim order can be passed with the requirements mentioned under the section. The court may also impose any restrictions at this stage .But afterwards when notice is issued to the Public prosecutor, the question of bail should be re-examined as per the contention of the parties. 

    Remedy under Section 437 or 439 of Cr.P.C.

    There is no such limitation period for anticipatory bail. But if the Court thinks it may limit the order of operation for a short period of time until the F.I.R is filed. After this, an applicant can seek remedy under Section 437 or 439 of this Code.

    The discretion of granting the anticipatory bail is given is upon the Court of Session and High Court under section 438 of this Code. While Granting the ail under the court may impose the conditions which are mentioned under section 437 of this Code; or the condition which are given under clause I– iv of Sub clause (2) of section 438. If in any case anticipatory bail is granted without the imposition of any conditions by the court then; it would be contrary to the section. Specially, when the court is refusing the bail, must consider whether it will result in impairment of the freedom of the individual or not?

    Judicial discretion must be free as there is no risk in entrusting the wide discretion to the courts; as they are higher court; and managed by experienced persons or their orders are not final as they are appealable. If we categorize the situations in which the anticipatory bail will be allowed then; there will be a risk because in life there will always be unforeseen challenges. .

    Other Factors

    It was also said that the function of the judiciary and police are not overlapping. The conditions which are incorporated under section 438 (2) ensure the uninterrupted investigation of the police; which requires the person to cooperate with the police during or after the investigation. Another condition is the person which is released on bail; shall be liable to be taken in police custody for facilitating the discovery (Section 27 of Indian Evidence Act)

     If the Court refuses to grant the anticipatory Bail it would amounts to deprivation of the personal liberty [1].


    The learned single bench dismissed the appeal and delivered the judgment dated September 13, 1977 and referred the application to the full bench.

    The above eight points refereed by the court is too difficult to apply is practice as stated by the High court:

    As per the sixth, it was said that any implications arising from the limitation specified under section 437 cannot be read into this section. The ingredients of the section must be given to its full meaning. 

    As per the fifth, it was held while granting the order of anticipatory bail under section 438; the court in its inherent power cannot directly or indirectly take away the right of the police to investigate into the charges; which are made against the person who will be released on bail. In fact, the conditions are incorporated in the Section 438 (2) i.e. to ensure an uninterrupted investigation. Or requires the accused to not tamper with the witnesses and cooperate with the police during or after the investigation.  One of the conditions may be that the person who is released on bail; shall be liable to be taken in police for facilitating the discovery under Section 27 of Indian Evidence Act, 1872. 

    As per the fourth, how can the court access the blatantness of the corruption at the stage of anticipatory bail or will it be sufficient for rejecting the bail?

    As per third, it can be said that if there are mala fide accusations; then the anticipatory bail should be granted. But this is not rule which means that bail must  be rejected unless there are mala-fide accusations, There is risk in framing rules

    Reasonable Grounds According to Case

    As per the eight , If the exception which is mentioned under section 437 of Code of Criminal Procedure 1973; i.e. if there are reasonable grounds that accused has committed an non bailable offense which is punishable with death or imprisonment for life is implicit under Section 438; while granting anticipatory bail then it would be difficult  to predict the reasonable grounds as it a pre legal arrest prose and Section 437 applies after the arrest is made, then there may be some data on the basis of which we believe that there are reasonable grounds to believe. .In case of anticipatory bail; the data will be lacking. Thus, it depends on the Circumstances of each case whether the bail should be granted or not.

    Gurcharan Singh & Ors v. State (Delhi Administration)

    As per the first, it reduces the salutary powers which are conferred under section 438; or High court just wanted to show that power which is conferred under section 438 is unguided. But every judicial discretion should be used with due care and caution in any matter; also there cannot be no presumption that a humble and poor person is more likely to commit crime as compared to a wealthy and mighty person. But this not justify that the power must be exercise when there is any special or extraordinary case; because discretion will be exercised on the basis of circumstances as in case of Gurcharan Singh & Ors v. State (Delhi Administration)[2]; “The judicial discretion in granting or refusing the bail will depend on facts and circumstances” 

    The Court in Gurbaksh Singh Sibbia & Others. V. State Of Punjab, 1980; agreed with the second proposition i.e. A Blanket order of anticipatory bail should not be passed.            

    [1] Maneka Gandhi v. union of India (1978), 1 SCC 248 
    [2] Gurcharan Singh & Ors v. State Delhi Administration (1977 )

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