Anticipatory Bail: Supreme Court Defines Scope and Duration Under Section 438 CrPC (29 January 2020)

Introduction

Date of the Judgment: 29 January 2020

Citation: (2020) INSC 69

Judges: Arun Mishra, Indira Banerjee, Vineet Saran, M.R. Shah, S. Ravindra Bhat (Majority Opinion by M.R. Shah J. and S. Ravindra Bhat J. concurring)

Can a person who fears arrest obtain anticipatory bail for an unlimited period? The Supreme Court of India addressed this crucial question, clarifying the scope and duration of anticipatory bail under Section 438 of the Code of Criminal Procedure (CrPC), 1973. This judgment resolves conflicting views from previous benches, ensuring a more consistent application of the law. The court also addressed whether the life of an anticipatory bail should end when the accused is summoned by the court.

Case Background

The case arose due to conflicting interpretations by different benches of the Supreme Court regarding the duration and conditions of anticipatory bail. The petitioners, Sushila Aggarwal and others, sought clarification on whether anticipatory bail should be limited to a fixed period, requiring the person to surrender and seek regular bail, or if it should continue until the trial’s conclusion. The core issue was the interpretation of Section 438 of the CrPC, which provides for anticipatory bail, and the extent to which courts can impose restrictions on such bail.

Timeline

Legal Framework

The judgment primarily revolves around Section 438 of the CrPC, which allows the High Court or Court of Session to grant anticipatory bail to a person who apprehends arrest. The court also considered Sections 437 and 439 of the CrPC, which deal with regular bail.

Section 438 of the CrPC states:

“(1) When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.”

The Supreme Court emphasized that the power to grant anticipatory bail is discretionary and should be exercised judiciously. The court also noted that the provision for anticipatory bail is a safeguard against arbitrary arrests and is intrinsically linked to the fundamental right to personal liberty under Article 21 of the Constitution.

Arguments

The arguments presented before the Supreme Court were diverse, with various parties presenting their perspectives on the interpretation of Section 438 CrPC:

• Amicus Curiae (Shri Harin P. Raval): Argued that anticipatory bail is “bail in anticipation of arrest” and should not be limited in duration, emphasizing the historical context and the Law Commission’s intent to leave the discretion with the courts. He highlighted the Constitution Bench’s observations in Gurbaksh Singh Sibbia vs. State of Punjab (1980) 2 SCC 565, stating that the court can limit the duration of anticipatory bail but the normal rule should be not to limit the same. He also argued that the decision in Siddharam Satlingappa Mhetre vs. State of Maharashtra (2011) 1 SCC 694, which stated that anticipatory bail should subsist during the entire trial, needs to be revisited.
• Amicus Curiae (Shri K.V. Vishwanathan): Submitted that the exercise of power under Section 438 is similar to that under Sections 437 and 439, and that pre-arrest bail should operate like any other bail order. He argued that the power of arrest is circumscribed by Section 41 of the CrPC and should not be exercised in every case.
• Solicitor General of India (Shri Tushar Mehta): Submitted that the court can limit the period of anticipatory bail for justifiable reasons, relying on paragraphs 42 and 43 of Gurbaksh Singh Sibbia (supra). He argued that the decision in Siddharam Satlingappa Mhetre (supra) misread the judgment in Gurbaksh Singh Sibbia (supra) and that the decision in Salauddin Abdulsamad Shaikh v. State of Maharashtra (1996) 1 SCC 667, which stated that anticipatory bail has to be limited in time, is against the decision of the Constitution Bench in Gurbaksh Singh Sibbia (supra).
• Additional Solicitor General of India (Shri Vikramjit Banerjee): Argued that the purpose of Section 438 is to provide protection during the investigation process only, and the accused should seek regular bail upon submission of the charge sheet. He also submitted that the power of the Magistrate under Section 209(b) and Section 240(2) CrPC to remand the accused to custody should be maintained.
• Respondent No. 2 (Shri C.S.N. Mohan Rao): Submitted that the Constitution Bench in Gurbaksh Singh Sibbia (supra) preserved the discretionary power granted to courts and refused to impose any limitations not imposed by Parliament. He argued that the decision in Salauddin Abdulsamad Shaikh (supra) and subsequent judgments following it are per incuriam.

The core contention was whether the courts have the power to limit the duration of anticipatory bail and whether such bail should end when the accused is summoned by the court.

Submissions Table

Issues Framed by the Supreme Court

The Supreme Court framed the following issues for consideration:

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.

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues

Authorities

The Supreme Court considered the following authorities:

• Gurbaksh Singh Sibbia and others v. State of Punjab (1980) 2 SCC 565 – Constitution Bench of the Supreme Court, which held that there is no limit to the currency of an order of anticipatory bail and that the court is vested with absolute discretion to direct the duration of the trial.
• Balchand Jain v. State of M.P. (1976) 4 SCC 572 – Supreme Court, which observed that “anticipatory bail” means “bail in anticipation of arrest”.
• Siddharam Satlingappa Mhetre v. State of Maharashtra (2011) 1 SCC 694 – Supreme Court, which held that an order of anticipatory bail once granted ordinarily subsists during the entire duration of the trial.
• Salauddin Abdulsamad Shaikh v. State of Maharashtra (1996) 1 SCC 667 – Supreme Court, which held that an order of anticipatory bail has to be necessarily limited in time frame.
• K.L. Verma v. State and another (1998) 9 SCC 348 – Supreme Court, which followed the decision in Salauddin Abdulsamad Shaikh (supra).
• Sunita Devi v. State of Bihar (2005) 1 SCC 608 – Supreme Court, which followed the decision in Salauddin Abdulsamad Shaikh (supra).
• Nirmal Jeet Kaur v. State of M.P. (2004) 7 SCC 558 – Supreme Court, which followed the decision in Salauddin Abdulsamad Shaikh (supra).
• HDFC Bank Limited v. J.J. Mannan (2010) 1 SCC 679 – Supreme Court, which followed the decision in Salauddin Abdulsamad Shaikh (supra).
• Satpal Singh v. State of Punjab (2018) 4 SCC 303 – Supreme Court, which followed the decision in Salauddin Abdulsamad Shaikh (supra).
• Section 438 of the Code of Criminal Procedure, 1973 – The provision for anticipatory bail.
• Section 437 of the Code of Criminal Procedure, 1973 – The provision for regular bail.
• Section 439 of the Code of Criminal Procedure, 1973 – The provision for special powers of High Court or Court of Session regarding bail.

Authorities Considered by the Court

Judgment

The Supreme Court, after considering the submissions and relevant authorities, held that:

The court held that the normal rule should be not to limit the operation of the order in relation to a period of time. The court may, if there are reasons for doing so, limit the operation of the order to a short period until after the filing of an FIR in respect of the matter covered by the order. The applicant may in such cases be directed to obtain an order of bail under Section 437 or 439 of the Code within a reasonably short period after the filing of the FIR.

The Court emphasized that anticipatory bail is a device to secure an individual’s liberty and not a passport to commit crimes. It also clarified that the power to grant anticipatory bail is discretionary and should be exercised judiciously, balancing the rights of the individual with the interests of the state.