1. Special leave granted.
2. Unusal though it may appear to be, under a compelling necessity in the interest of justice, we would depart from the ordinary response of this Court to matters involving bail. Ordinarily, this Court is loathe to interfere with the orders granting or refusing bail but it cannot be an insurmountable obstacle in the way of rectifying an order which tends to disclose miscarriage of justice.
3. An incident occurred on August 23, 1983 in which one Bhanwaria, son of the present appellant received fatal injuries resulting in his death. An information was lodged with the Police Station, Khedapa, District Jodhpur, Rajasthan State about the occurrence on August 24, 1983 around 11.30 A.M. At that time, Bhanwaria was alive and the offence was registered under Section 307, 447 read with Section 149 under Section 148, 379 and 327 of the Indian Penal Code. When the hospital authority sent the message that Bhawaria, the victim of assault, who was admitted in the hospital for treatment has succumbed to his injuries, the investigating Officer also added an offence under Section 302 IPC. Soon thereafter on September 29, 1983, the second respondent Chandan Singh s/o Shri Ranjit Singh ('respondent' for short) appeared before the learned Sessions Judge, Jodhpur and moved an application under Section 438, Cr.P.C. for granting him anticipatory bail. The public prosecutor appearing for the State opposed the application for grant of anticipatory bail. The learned Judge by his order dated September 30, 1983 accepted the application and granted anticipatory bail to the respondent observing that the dispute is with regard to the right to cultivate a certain field from which when deceased Bhanwaria was coming out, the respondent fired at him and caused the injuries which proved fatal. The learned Judge further observed that keeping in View some decisions referred to by him, he was of the opinion that the application (or anticipatory bail should be granted. The learned Judge then ordered that if the accused is taken into custody by the police, he must be released or bail on his furnishing security in the amount of Rs. 5.000 on condition that he will assist in investigation and will not interfere in the investigation and will not go out of India.'
4. The present appellant moved the High Court of Rajasthan questioning the correctness of this order and for cancellation of the anticipatory bail. A learned Single Judge of the High Court negatived the contention that the petitioner had no locus standi to move the High Court for cancellation of anticipator bail. On merits, the learned Judge after referring to several decisions observed that while dealing with an application for cancellation of bail warranting interference with the discretionary order passed by the learned Sessions Judge granting bail, the considerations which should weigh with the court were whether: (1) the accused would be readily available during the trial; (2) he is not likely to abuse the discretion granted his favour by tampering with the prosecution witnesses, concluded that the respondent and his father are influential persons and hold important posts in the Panchayat or Zila Parishad furnished no ground for cancelling bail and that it is not necessary to examine whether anticipatory bail ought to hive been granted, but what must be considered is wither a case for cancellation of the same is made out. The learned Judge then held that such grounds are not shown to exist and accordingly rejected the application. Hence this appeal by special leave.
5. Relevant considerations governing the court's decision in granting anticipatory bail under Section 438 are m aerially different from those when an application for bail by a person who is arrested in the course of investigation as also by a person who is convicted and his appeal is pending before the higher court and bail is sought during the pendency of the appeal. Three situation; in which the question of granting or refusing to grant bail would arise, materially and substantially differ from each other and the relevant considerations on which the courts w mid exercise its discretion, one way or the other, are substantially different from each other. This is necessary to be stated because the learned Judge in the High Court unfortunately fell into an error in mixing up all the considerations, as if all the three become relevant in the present situation.
6. The decision of the Constitution Bench in Shri Gurbaksh Singh Sibbia and Ors. v. State of Punjab : 1980CriLJ1125 clearly lays down that the distinction between an ordinary order of bail and an order of anticipatory bail is that whereas the farmer is granted after arrest and there fore means release from the custody of the police, the latter is granted in anticipation of arrest and is therefore effective at the very moment of arrest.' Unlike a post-arrest order of bail, it is a pre-arrest legal process which directs that if in person in whose favour it is issued is thereafter arrested on the accusation in respect of which the direction is issued, he shall released on bail. A direction under Section 438 is intended to confer conditional immunity from the touch as envisaged by Section 46(1) or confinement. In para 31, Chandrachud, CJ clearly demarcated the distinction between the relevant considerations while examining an application for anticipatory bail and an application for bail after arrest in the course of investigation. Says the 'earned Chief justice that 'in regard to anticipatory bail, if the proposed accusation appears to stem not from motives of furthering the ends of justice but from some ulterior motive, the object being to injure and humiliate the applicant by having him arrested, a direction for the release of the applicant on bail in the event of his arrest' would generally be made. It was observed that 'it cannot be laid down as an inexorable rule that anticipatory bail cannot be granted unless the proposed accusation appears to be actuated by mala fides; and equally, that anticipatory bail must be granted if there is no fear that the applicant will abscond.' Some of the relevant considerations which govern the discretion, noticed therein are the nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the applicant's presence not being secured at the trial, a reasonable apprehension that witnesses will be tampered with and 'the larger interests of the public or the State', are some of the considerations which the court has to keep in mind while deciding an application for anticipatory bail. A caution was voiced that 'in the evaluation of the consideration whether the applicant is likely to abscond, there can be no presumption that the wealthy and the mighty will submit themselves to trial and that the humble and the poor will run away from the course of justice, any more than there can be a presumption that the former are not likely to commit a crime and the latter are more likely to commit it.'
7. Having noticed the relevant considerations which should weight, with the court in the matter of granting or refusing to grant anticipatory bail, let us first look at the order made by the learned Sessions Judge.
8. The incident in which Bhanwaria was injured with lire arm occurred on August 23, 1983 in respect of which the first information report was lodged on August 24, 1983, in which it was in clear and unambiguous terms alleged that the respondent was at the relevant time armed with a gun and fired towards Bhanwaria who suffered injuries by gun shot. The incident occurred as stated earlier around 4.00 P.M. on August 23, 1983 and is information is lodged with the Police Station at a distance of 30 k.m. from the scene of occurrence on August 24, 1983 at 11.30 a.m. Amongst others, the offence registered was under Section 307 IPC i.e. attempt to commit murder. The first information report thus discloses use of lire arm with which the respondent attempted to commit murder of Bhanwaria. Surprisingly, the Investigating Officer had not arrested him till September 29, 1983 when he moved an application for anticipatory bail under Section 438 of the CrPC presumably after coming to know that injured Bhanwaria has succumbed to his injuries and the offence would one of murder punishable under Section 302 IPC. This conduct of the Investigating Officer left us guessing. Some light is shed by some averments from the affidavit filed in the High Court and extracted by the learned Judge in his judgment. It is stated that the respondent is the Sarpanch of Vil. Danwara and is an influential person and that his father Ranjit Singh is ex-M.L.A. and is at present Pradhan of the Panchayat Samiti. Are these relevant considerations for not cancelling anticipatory bail when it appears to have been granted by a clear misconception of the relevant considerations governing of anticipatory bail? The answer is emphatically in the negative in view of the extracted observations from the decision of the Constitution Bench in Gurbaksh Singh Sibbia's case
9. The accusation against the respondent is that he has committed an offence of murder punishable under Section 302 IPC. Surprisingly, when anticipatory bail was granted on September 30, 1983, there is not a whisper of it in the order of the learned Sessions Judge, Jodhpur. When a person is accused of a offence of murder by the use of a fire arm, the Court has to be careful and circumspect in entertaining an application for anticipatory bail. Relevant considerations are conspicuous by silence in the order of the learned Sessions Judge. Could it be said in this case that the accusation appears to stem not from motives of furthering the ends of justice but from some ulterior motive? Could it be said that the object being to injure and humiliate the respondent by having him arrested? What prompted the learned Sessions Judge to grant Anticipatory bail left us guessing and we are none the wiser by the discussion in the order of the learned Single Judge declining to interfere.
10. Mr. Mulla, learned Counsel who appeared for the respondent urged that the order of the learned Sessions Judge is not of anticipatory bail under Section 438 but it is an order made after looking into the papers of investigation and therefore, it is an order of bail under Section 439 of the CrPC. We remain unconvinced because the order of the learned Sessions Judge clearly directs that if the respondent is taken into custody by the police, he must be released on bail on his furnishing security in the amount mentioned by him. The learned Judge himself styled the order as one under Section 438 of the CrPC. If there was any doubt about this aspect, the penultimate para of the judgment of the learned Single Judge of the High Court dispels the same when it recites that no order for cancelling bail can be made when the learned Additional Sessions judge No. 1, Jodhpur has granted anticipatory bail to the respondent by his order dated September 30, 1983.
11. Mr. Mulla then attempted to urge that on merits a good case for granting bail is made out. We are not inclined to examine this contention because neither the learned Sessions Judge nor the learned Single Judge of the High Court has examined the case from that angle. The only question which we were called upon to decide is whether: the learned Sessions Judge was justified in granting anticipatory bail in the facts and circumstances of this case? Unquestionably, no case was made out for grating anticipatory bail in this case. Let it be made distinctly clear that status in life, affluence or otherwise, are hardly relevant considerations while examining the request for granting anticipatory bail. Anticipatory bail to some extent intrudes is the sphere of investigation of crime and the court must be cautious and circumspect in exercising such power of a discretionary nature. Tins case amply illustrates that the power was exercised sub silentio as to reason or on irrelevant or consideration not germane to the determination. This Court, to avoid miscarriage of justice, must interfere.
12. The High Court referred to two decisions of the Rajasthan High Court on the question of locus standi of the present appellant but once that was conceded and not questioned before us, we need not refer to them. The learned Judge that referred to the decision in Gurbax Singh Sibha's case, but failed to take note of the relevant observations which we have extracted hereinbefore Reference to the decision in Gurcharn Singh and Ors. v. State (Delhi Administration)  2 SCR 358 by the High Court is hardly apposite because the controversy centered round the power of the High Court to deal with the application for cancellation of bad under Section 439(2) of the CrPC and on merits this Court held that the High Court was not justified in cancelling the bail. The Court was not concerned with examining 'he relevant considerations for granting or refusing to grant anticipatory bail in that case. The decision in State v. Capt. Jagjitsingh : 3SCR622 would be of n assistance as the provision of anticipatory bail come to be introduced in the Code of 1973. Similarly the decision in Delhi Admit. v. Sanjay Gandhi : 1978CriLJ952 is of no assistance because the court was concerned with the question of cancellation of bail already granted long back in the facts and circumstances of the case on account of events subsequent to the order granting bail. The High Court lastly referred to Bhagirath Singh Judeja v. State of Gujarat : 1984CriLJ160 because that was the case in which accusation was for an offence under Section 307 IPC and the learned Sessions Judge had granted bail which order was quashed by the High Court. As slated earlier, by reference to these decisions not of topical interest bearing on the question of grant or refusal of anticipatory bail the High Court unfortunately missed crux of the matter.
13. Before we conclude this judgment, it must be made distinctly clear that some very compelling circumstances must be made out for granting bail to a person accused of committing murder and that to when the investigation is in progress. In fact, the Investigating Officer did not even attempt to arrest the appellant though the initial accusation was under Section 307 IPC punishable with imprisonment for life. And as soon as the victim of the assault succumbed to his injuries and an offence under Section 302 was registered, promptly an application for anticipatory bail was made and granted. If such an order is allowed to stand, faith of public in administration of justice is likely to be considerably shaken. Therefore, we have no option but to cancel the order granting anticipatory bail.
14. By our setting aside the order granting anticipatory bail, pondent should in no way be prejudiced. If consequent upon the setting aside of the order granting anticipatory bail, the respondent is arrested which must ordinarily follow, it is open to him, if he is so advised, to move an application for being enlarged on bail and the Court would consider the same on merits wholly uninfluenced by the earlier orders, the judgment of the learned Single Judge of the High Court and this judgment.
15. Accordingly this appeal is allowed and the order dated September 30, 1983 granting anticipatory bail to the respondent Chandan Singh s/o Ranjit Singh is quashed and set aside and the bond furnished by him is cancelled. We order accordingly.