Siddharam Satlingappa Mhetre v. State of Maharashtra

Supreme Court of India · 2 December 2010 · 2 judges

Overruled in whole or in part by Sushila Aggarwal v. State (NCT of Delhi) (2020), which says: “Similarly, the wide interpretation in Siddharam Satlingappa Mhetre v. State of Maharashtra & Ors. 2011 (1) SCC 694, i.e. that no conditions can be imposed while granting an order of anticipatory bail, is incorrect. Mhetre (supra) to that extent and other judgments which have followed it are accordingly overruled.”

Following the Constitution Bench in Sibbia, anticipatory bail under Section 438 CrPC need not be confined to exceptional cases or limited in time, and ordinarily continues till the end of the trial unless cancelled.

Facts

The appellant, a Congress politician, was named in an FIR concerning an incident during the State assembly election campaign, in which supporters of the Congress allegedly fired at a BJP candidate and his workers at a village temple, killing one worker. The prosecution alleged that about eight days earlier the appellant and his brother had told their party workers that if anybody said anything to them they should tell him and he would send his men, and that this instigation led to the killing. The High Court declined to grant him anticipatory bail, and he appealed by special leave. Counsel for respondent no. 2 accepted that orders granting anticipatory bail for a limited period and then requiring surrender were contrary to Gurbaksh Singh Sibbia v. State of Punjab.

Questions before the Court

Whether the power to grant anticipatory bail under Section 438 CrPC is to be exercised only in exceptional cases.
Whether an order of anticipatory bail can be limited in duration, requiring the accused to surrender and seek regular bail.
Whether decisions of smaller Benches limiting anticipatory bail, contrary to Sibbia, are binding.

What the Court held

Section 438 is extraordinary only in that it was newly introduced in 1973; it is not to be invoked only in exceptional or rare cases. The limitations in Section 437 cannot be read into it, and the court should not impose restrictions the legislature did not enact.
An order of anticipatory bail should not be limited in time. Once granted, the protection should ordinarily continue till the end of the trial, unless the court cancels it on fresh material or circumstances or for abuse. Requiring surrender after a limited period is contrary to Section 438, Sibbia and Article 21.
Salauddin Abdulsamad Shaikh, K. L. Verma, Adri Dharan Das, Sunita Devi and Naresh Kumar Yadav, decided by smaller Benches, ignored the Constitution Bench in Sibbia and are per incuriam. A Bench of lesser strength is bound by a Constitution Bench decision.
No rigid guidelines can be laid down. The Court listed illustrative factors, including gravity of the accusation and exact role of the accused, antecedents, risk of flight, repetition of offences, tampering with witnesses, and whether the accusation aims to humiliate. Arrest should be the last option, with reasons recorded in the case diary.
The High Court's order was set aside. The appellant was directed to join and cooperate with the investigation and, if arrested, to be released on bail on a personal bond of Rs. 50,000 with two sureties.

Why it matters

The judgment restates the Constitution Bench view in Sibbia on the scope of Section 438 CrPC and declares five decisions of smaller Benches per incuriam for ignoring it. It holds that anticipatory bail is not limited in duration and ordinarily lasts till the end of the trial, sets out illustrative factors for granting or refusing it, and explains the doctrine of per incuriam and the binding effect of larger Bench decisions under Article 141.

In the Court's words

Copied from the official judgment; each passage links to its page.

“In view of the clear declaration of law laid down by the Constitution Bench in Sibbia's case (supra), it would not be proper to limit the life of anticipatory bail. When the court observed that the anticipatory bail is for limited duration and thereafter the accused should apply to the regular court for bail, that means the life of section 438 Cr.P.C. would come to an end after that limited duration. This limitation has not been envisaged by the legislature.”

Dalveer Bhandari, J.Page 69 of the judgment

“The view expressed by this Court in all the above referred judgments have to be reviewed and 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.”

Dalveer Bhandari, J.Page 60 of the judgment

“These judgments have clearly ignored a Constitution Bench judgment of this court in Sibbia's case (supra) which has comprehensively dealt with all the facets of anticipatory bail enumerated under section 438 of Cr.P.C.. Consequently, judgments mentioned in paragraphs 135 and 136 of this judgment are per incuriam.”

Dalveer Bhandari, J.Page 77 of the judgment

“It is not extraordinary in the sense that it should be invoked only in exceptional or rare cases. Some courts of smaller strength have erroneously observed that section 438 Cr.P.C. should be invoked only in exceptional or rare cases. Those orders are contrary to the law laid down by the judgment of the Constitution Bench in Sibbia's case (supra).”

Dalveer Bhandari, J.Page 47 of the judgment

Provisions interpreted

Section 438, Code of Criminal Procedure, 1973Now: BNSS 482 (NCRB correspondence table)
Section 437, Code of Criminal Procedure, 1973Now: BNSS 480 (NCRB correspondence table)
Article 21, Constitution
Article 141, Constitution

Related judgments

Follows Gurbaksh Singh Sibbia v. State of Punjab (1980)“We are clearly bound to follow the said judgment of the Constitution Bench. The judicial discipline obliges us to follow the said judgment in letter and spirit.” (page 78)
Follows Maneka Gandhi v. Union of India (1978)“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)” (page 54)

Case and bench

Parties: Siddharam Satlingappa Mhetre v. State of Maharashtra
Case: Criminal Appeal No. 2271 of 2010 (arising out of SLP (Crl.) No. 7615 of 2009)
Decided: 2 December 2010
Bench: Dalveer Bhandari, K.S. Panicker Radhakrishnan
Opinions: Unanimous. Judgment delivered by Dalveer Bhandari, J.