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Life of Anticipatory Bail protection: What the Supreme Court held [Read Judgment]

The Court found that there is nothing to suggest that the operation of an order granting anticipatory bail must be limited by time.

Meera Emmanuel

A five-judge Bench of the Supreme Court on Wednesday cleared the confusion over whether the protection given to a person through anticipatory bail should exist for a fixed period.

Reiterating the law laid down by a Constitution Bench of the Court back in 1980 in the case of Gurbaksh Singh Sibbia and others v. State of Punjab (Sibbia case), the Supreme Court has clarified:

  • There is nothing in the Code of Criminal Procedure (CrPC) to indicate that the grant of pre-arrest/anticipatory bail should be time-bound.

  • However, the concerned court has the discretion to impose conditions for the grant of anticipatory bail, including a limited duration of protection, on a case-to-case basis, depending on the stage at which the application for anticipatory bail is moved.

  • As a normal rule, there should be no such time-limit imposed in granting the pre-arrest protection.

  • The duration of an anticipatory bail order does not normally end when the accused is summoned by the court. However, it is open to the Court to impose additional restrictions if there are peculiar circumstances warranting the same.

The judgment was pronounced by a Bench of Justices Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and SR Bhat. Justices Shah and Bhat have authored two separate opinions. Justices Mishra, Banerjee and Saran have expressed their concurrence with the two opinions in a common judgment.

Life of Anticipatory Bail protection: What the Supreme Court held [Read Judgment]

Why the issue required clarification

In May 2018, a three-judge Bench of Justices Kurian Joseph, Mohan M Shantanagoudar and Navin Sinha noticed that there was a difference of opinion on whether the grant of anticipatory bail should be limited by time.

Pertinently, in the 1980 Sibbia judgment, a five-judge Bench had ruled that the protection granted through anticipatory bail under Section 438 of the CrPC was wide and cannot be construed narrowly as being limited by time. However, in individual cases, the courts could impose conditions which were appropriate, having regard to the circumstances, the Bench had ruled.

In 1995, however, a three-judge Bench took the view that anticipatory bail has to be necessarily limited within a time frame, in the case of Salauddin Abdulsamad Shaikh v. State of Maharashtra (Salauddin case).

Another divergent view appeared in 2010, when a two-judge Bench of the Supreme Court ruled in Siddharam Satlingappa Mhetre v. State of Maharashtra (Mhetre case) that the life of an order granting anticipatory bail under Section 438, CrPC cannot be curtailed.

A number of cases that followed took divergent views, given the conflicting judgments above, necessitating a reference to a larger Bench of the Court so that the issue may be settled.

Issues framed

The two issues before the larger Bench were:

  1. Whether the protection granted to a person under Section 438 Cr.P.C. should be limited to a fixed period so as to enable the person to surrender before the Trial Court and 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?

What the Supreme Court has now held

Sibbia case holds the field

The Supreme Court found that the smaller Benches in the Salauddin and Mhetre case had erred in taking views contrary to the view taken by the Constitution Bench in the Sibbia case.

Nothing to show that time-limit should be imposed when granting anticipatory bail

The Court found that, on a perusal of the law governing the same, there is nothing to suggest that the operation of an order granting anticipatory bail must be limited by time.

“A bare reading of Section 438 of the Cr.P.C. shows that there is nothing in the language of the Section which goes to show that the pre­arrest bail granted under Section 438 has to be time bound. The position is the same as in Section 437 and Section 439 of the Cr.P.C.”

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Time-limits may be imposed by courts, but not as a normal rule

All the same, the Court further noted as per the Sibbia case, the competent court still retains the discretion to impose time-limits or other conditions, on a case-to-case basis, if required. It added, however, that such limits should not be ordinarily imposed.

… normal rule should be not to limit the operation of the [anticipatory bail] order in relation to a period of time.”

The Supreme Court, therefore, has answered the first issue as follows:

“… the protection granted to a person under Section 438 Cr. PC should not invariably be limited to a fixed period; it should inure in favour of the accused without any restriction on time. Normal conditions under Section 437 (3) read with Section 438 (2) should be imposed; if there are specific facts or features in regard to any offence, it is open for the court to impose any appropriate condition ... ”

Supreme Court

Life of Anticipatory Bail does not end when the accused is summoned by court

The Court found that ordinarily, the protection given through anticipatory bail would not automatically come to an end if the person is summoned as an accused in the case by a court. However, if there are special or peculiar circumstances necessitating the same, the court has the power to limit the tenure of anticipatory bail.

The Supreme Court, therefore, answered the second issue as follows,

“...the life or duration of an anticipatory bail order does not end normally at the time and stage when the accused is summoned by the court, or when charges are framed, but can continue till the end of the trial. Again, if there are any special or peculiar features necessitating the court to limit the tenure of anticipatory bail, it is open for it to do so.”

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Not in larger interest if protection through anticipatory bail is judicially curtailed

The judgment authored by Justice Bhat also cautions against courts narrowly interpreting the law on anticipatory bail, keeping in view that arbitrary arrests and detentions continue to be a pervasive phenomenon. In this regard, it is stated,

Despite several Law Commission reports and recommendations of several committees and commissions, arbitrary and groundless arrests continue as a pervasive phenomenon. Parliament has not thought it appropriate to curtail the power or discretion of the courts, in granting pre-arrest or anticipatory bail, especially regarding the duration, or till charge sheet is filed, or in serious crimes."

He, therefore, opines,

"... it would not be in the larger interests of society if the court, by judicial interpretation, limits the exercise of that power: the danger of such an exercise would be that in fractions, little by little, the discretion, advisedly kept wide, would shrink to a very narrow and unrecognizably tiny portion, thus frustrating the objective behind the provision, which has stood the test of time, these 46 years.”

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Guidelines on grant of anticipatory bail

Before parting with the matter, the Bench also issued some more guidelines on the grant of anticipatory bail, including the following:

  • Anticipatory bail applications should be based on concrete facts, not vague or general allegations, relatable to a specific offence.

  • It is advisable that the court, depending on the seriousness of the threat of arrest, issue notice to the public prosecutor to obtain facts.

  • Nothing in the CrPC compels or obliges a court to impose conditions limiting the grant of anticipatory bail.

  • The need to impose restrictions during grant of anticipatory bail would have to be judged on a case-to-case basis.

  • Such special or other restrictive conditions may be imposed if the case or cases warrant, but should not be imposed in a routine manner, in all cases.

  • Gravity and nature of alleged offence involved, applicant’s role etc. should guide the court in deciding whether or not to grant anticipatory bail in its discretion.

  • Anticipatory bail granted can (depending on the conduct and behaviour of the accused) continue after filing of the charge sheet till end of trial.

[Read the Judgment]

Anticipatory Bail judgment - Sushila Aggarwal and others v. State (NCT of Delhi) and another.pdf
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