Five Judge Bench on Anticipatory Bail

Author: Nikhil Sukhija

Petitioner: Sushila Aggarwal and others

v.

Respondents: State (NCT of Delhi) and another

(MANU/SC/0100/2020)

Various conflicting decisions on matters of anticipatory bail has given rise to this case at the constitution bench.

Issues

1   Whether the protection under section 438 CrPC be limited to a fixed period to enable the person to surrender before the trial court & seek regular bail?

2.   Whether the life of an anticipatory bail should end at the time and stage when the accused is summoned by the court?

Submissions by Sr. Adv. Harin P. Raval appearing as Amicus Curiae:

1.      In Balchand Jain vs. State of MP (1976) it has been held that the expression anticipatory bail means “bail in anticipation of arrest”.

2.      Parliament introduced Section 438 of the CrPC on the recommendation of the law commission of India in its 41^st Report. The reason given for such introduction was influential persons try to implicate their rivals in false cases for the purpose of disgracing them.

3.      Bail is basically release from restraint, more particularly from custody of police by taking a surety, bonds and such other mode.

4.      Power to grant Anticipatory Bail vests only in the High Court or the court of Sessions.

5.      In Gurbaksh Singh Sibbia and others v. State of Punjab (1980) it was held that there is no limit to the currency of an order of anticipatory bail.

6.      Sole consideration for granting Anticipatory Bail is to balance the 2 competing interests, namely,

·         Protecting the liberty of the accused; &

·         The sovereign power of police to conduct or fair investigation .

7.      Supreme Court in Siddharam Satlingappa Mhetre v. State of Maharashtra (2011) held that Anticipatory bail subsists during the entire duration of the trial. This curtails the power of High Court and Session Court of revisiting its order. He submitted to revisit Para 95, 108, 122, and 123 in view of the contravention.

8.      It was submitted that life of the order granting Anticipatory Bail can be restricted till either the FIR is filed in cases where such order is granted on reasonable apprehension of being arrested or where FIR is filed, it may be restricted to a period of 10 days after arrest, leaving 4 days for Police to investigate. The accused may then apply for regular bail under section 437 or 439.

9.      It was also submitted that non-filing of chargesheet within 90 days of arrest entitles the accused, default bail under Section 167.

Submissions by Sr. Adv. Shri Vishwanathan assisting as an Amicus Curiae:

1.      In the case of Joginder Kumar v. State of UP, it was held that the power of arrest cannot be exercised in every FIR that is registered under Section 154 of CrPC.

2.      Section 438 was introduced to safeguard the interest of accused as the check on power of arrest and custody provided under Section 437 & 439 is only post facto. By then, the arrested person has already suffered the trauma & humiliation.

3.      To strike further balance, this power is given at supervisory and not at magisterial level. It is done by vesting the powers of Anticipatory bail at Session Court and High Court.

4.      An important aspect of Section 438(3) CrPC:

·         Person has to comply with the requirement under Section 441 of executing a bond or surety.

5.      A person may be taken to custody only when a specific direction under section 439(2) is passed.

6.      He concluded by saying that the court does not contemplate any power in the hands of the court to pass time bound orders under Section 438. On the other hand, if the Police succeeds in making out a case under Section 439 (2), the court may direct the accused to be taken into custody.

Submissions by Shri Tushar Mehta, Solicitor General of India.

1.      The decision of Supreme Court in Salauddin Abdulsamad Shaikh case is against the decision of constitutional bench in the case of Gurbaksh Singh Sibbia to the extent where it is stated that the order of the anticipatory bail has to be limited in time frame.

2.      In a case where Anticipatory bail is granted without conditions, the life may terminate on circumstances envisaged in relation to Section 439.

3.      Judgement of Supreme Court in the case of HDFC Bank Ltd is not correct whereby it was recognized that upon filing of Chargesheet there is automatic cancellation of Anticipatory Bail. 

Submissions by Shri Banerjee, learned ASG

1.  There should necessarily be same conditions imposed in granting a pre-arrest bail and it cannot be a blanket order.

Observations by the Court

1.      Anticipatory Bail application could be moved at the stage:

·         Before an FIR is filed; or

·         When an FIR is registered but chargesheet has not been filed and investigation is in    progress; or

·         At a stage after investigation.

2.      Power to grant Anticipatory Bail vests only with the court of Session or the High Court. It may also impose conditions including limited period of Anticipatory Bail depending upon the stage.

3.      In the case of Siddharam Satlingappa Mhetre it was held that life of an order under section 438 cannot be curtailed, overlooking the proposition laid under the case of Sibbia.

4.      Decision of SC in case of Sallauddin is also not a good law as it states that anticipatory bail has to be necessarily limited in time frame.

Gurbaksh Singh Sibbia case where summarized by the High Court as;

Observations;

·       There shall be no blanket anticipatory bail.

·        Limitations under Section 437 are applicable on Section 438.

·        In addition to Section 437, the petitioner must make out a special case for the exercise of the power.

·       Powers under section 438 shall not be exercised where a legitimate case for remand of the offender to the police custody under section 167 (2) is made out by investigating agency.

·         Power under Section 438 CrPC to be used in exceptional cases.

Conclusion of Sibbia’s Case;

·         Grant of an order of unconditional anticipatory bail would be plainly contrary to the very terms of Section 438.

·         The accused shall cooperate with investigation.

·         There can be no presumption that any class of accused are likely to abscond, particularly poor section.

Observations of Full bench at Supreme Court (though not agreeing)

·         Whether the amplitude of Judicial discretion given to High Court & the court of session to impose conditions as they may think fit while granting anticipatory bail should be cut down. They answered the same in negative.

·         Anticipatory bail is a device to secure the individuals liberty, it is neither a passport nor a shield against commission of crime.

·         After arrest, the accused must seek his remedy under section 437 or 439 to be released on bail. 

Conditions for providing Anticipatory bail by courts in consonance to Sibbia’s Case

·         Accused Shall furnish a personal bond.

·         Presence of accused in front of Police.

·         Cooperation of accused in investigation.

·         No threat or inducement to any witness.

·         Not to obstruct police investigation.

·         Not to leave territory.

·         Applicant to submit his passport.

·         the nature and gravity of the accusation

·         the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence

·         the possibility of the applicant to flee from justice; and

·         where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail.

Held:

1. Protection granted to a person under Section 438 should not invariably be limited to a fixed period. It should be in accused’s favor without any restriction on time.

2. Normal conditions under section 437 (3) should be imposed and it is open for the court to impose any appropriate conditions.

Further Clarifications: 

1.      The application seeking Anticipatory bail to contain bare essential facts relating to offence and why the applicant reasonably apprehends arrest.

2.      Application may be moved earlier than FIR too if the facts are clear & there is reasonable basis for apprehending arrest.

3.      Court may grant limited interim anticipatory bail while issuing notice to the Public Prosecutor and obtaining facts.

4.      An order of Anticipatory Bail should not be “blanket”.

5.      Order of Anticipatory Bail does not limit or restrict the rights of investigating agency.

6.      In the event of violation of any term, police may approach court under section 439 (2).

7.      Observations in Siddharam Sattlingappa Mhetre v. State of Maharashtra (and similar judgments) are over ruled to the extent where it states that no restrictive conditions can be imposed.

8.      Likewise, decision in Salauddin Abdulasamad Sheikh v. State of Maharshtra is also over ruled to the extent whereby terms limiting the grant of Anticipatory Bail are imposed.

Disclaimer: This article is meant to be informative and should not be treated as professional advice. For any legal or financial clarifications or suggestions, please contact the undersigned author , or you may reach out to us at protalkz03@gmail.com.

Nikhil Sukhija

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Email: protalkz03@gmail.com