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Parliament has not thought it appropriate to curtail the rights of citizens: Supreme Court on grant of Anticipatory Bail

Bar & Bench

In a significant judgment, the Supreme Court today held that the grant of anticipatory bail should not be subject to time constraints. The Court also added that it is also open to the court to impose conditions.

While holding this, the Constitution Bench held,

"Parliament has not thought it appropriate to curtail the rights of citizens. It will be dangerous to restrict such a power of arrest."

The judgment was rendered by a five-Judge Constitution Bench headed by Justice Arun Mishra and comprising Justices Indira Banerjee, Vineet Saran, MR Shah, and Ravindra Bhat.

The Court went on to lay down certain proposition for the sake of clarity on the issue. These included:

1) Application seeking anticipatory bail should contain essential facts - essential for evaluation and for propounding conditions;

2) Nothing limits courts to limit the anticipatory bail regardless of the stage of the trial;

3) Nature of crime etc. extremely relevant and dependent on circumstances;

4) Whether to grant or not are a matter of circumstances and discretion;

5) Order of Anticipatory should not be used as a blanket for the accused, does not limit investigation.

The question of whether the grant of anticipatory bail should be limited to a definite period of time had been referred to a larger Bench of the Supreme Court by a three judge Bench of Justices Kurian Joseph, Mohan M Shantanagoudar and Navin Sinha.

The two questions that were referred to be considered by the larger Bench, are:

1. Whether the protection granted to a person under Section 438 CrPC 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?

The law on anticipatory bail can be found in Section 438 of the Criminal Code of Procedure (CrPC). The above reference had been made given the ambiguity remaining on the topic, despite the 1980 Constitution Bench judgment of the Supreme Court in Shri Gurbaksh Singh Sibbia and others v State of Punjab.

In Gurbaksh Singh, it was held that the normal rule should be not to limit the operation of the order for grant of anticipatory bail. This precedent was followed in various cases. However, in 1996, a three-judge bench of the Supreme Court took a different view in the case of Salauddin Abdulsamad Shaikh v. State of Maharashtra.

In Salauddin, the Court opined that to allow anticipatory bail to continue indefinitely would be to bypass the regular court of trial.

Various later. decisions also demonstrated that there were inconsistencies in the law regarding anticipatory bail. This is evident from certain other precedents quoted by the Supreme Court in its order.

In light of these differing opinions, ambiguity on the issue, and on the recommendations made by the Amicus, a three-Judge Bench had in 2018, referred the matter to a larger Bench.

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