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SUPREME COURT OF INDIA
KURIAN JOSEPH, MOHAN M. SHANTANAGOUDAR, NAVIN SINHA, JJ.
SUSHILA AGGARWAL & ORS. – PETITIONER(S)
VERSUS
STATE (NCT OF DELHI) & ANR. – RESPONDENT(S)
SPECIAL LEAVE PETITION (CRIMINAL) NOS.7281-7282 OF 2017
Decided On : 15-05-2018
(1980) 2 SCC 565; (2011) 1 SCC 694; (2016) 1 SCC 152; (1996) 1 SCC 667; (1998) 9 SCC 348; (2005) 1 SCC 608; (2005) 4 SCC 303; (2004) 7 SCC 558; (2010) 1 SCC 679; (2018) SCC Online SC 415 – Referred
Facts of the case:
Whether an anticipatory bail should be for a limited period of time is the issue in this case.
Finding of the Court:
In view of conflicting views of different Benches of varying strength matter needs to be authoritatively settled.
Result: Matter referred to a larger Bench.
Certainly. Based on the provided legal document, the key points are as follows:
The primary issue under consideration is whether anticipatory bail should be granted for a limited period or for an indefinite duration. There are two conflicting perspectives: one that advocates for a fixed-term anticipatory bail, and another that opposes any such limitation, suggesting that the protection should continue until the conclusion of the trial or when the accused is summoned by the court (!) (!) .
The view supporting limited duration emphasizes that anticipatory bail should be granted for a specific period, after which the accused must surrender and seek regular bail. This approach aims to prevent misuse and to ensure that the regular court, which is responsible for trial and evidence assessment, retains jurisdiction over the matter (!) (!) .
Conversely, the perspective opposing a fixed period argues that the legislative intent and constitutional principles do not envisage a limitation on the life of anticipatory bail. It holds that once anticipatory bail is granted, it remains effective until the accused is either arrested or the court decides to cancel or modify the bail conditions, including until the conclusion of the trial (!) (!) .
The legal provisions and judicial interpretations suggest that anticipatory bail is a beneficent provision aimed at protecting personal liberty, but it should not be used as a permanent shield. The duration of such bail should be reasonable and linked to the procedural stage, such as until the filing of a charge sheet or the accused's appearance before the trial court (!) (!) .
There is an emphasis on the necessity for anticipatory bail to be granted with conditions and within a limited timeframe to prevent abuse, ensure cooperation with the investigation, and facilitate the transition to regular bail once the investigation or trial progresses (!) (!) .
The legal framework recognizes that the protection under anticipatory bail is available until the accused is summoned or required to surrender before the court. At that point, the accused must seek regular bail, and the court's satisfaction for granting anticipatory bail is distinct from the considerations for granting regular bail (!) (!) .
The conflicting judicial opinions underscore the need for an authoritative and clear legal position. Consequently, the matter has been referred to a larger bench to settle the questions of whether the protection under Section 438 should be limited in time and whether the life of anticipatory bail ends when the accused is summoned by the court (!) (!) (!) .
These points encapsulate the core legal principles and issues discussed in the document concerning the duration and scope of anticipatory bail.
ORDER
KURIAN, J.
1. Whether an anticipatory bail should be for a limited period of time is the issue before us on which there are two divergent views.
2. The line of judgments that anticipatory bail should not be for a limited period places its reliance on the Constitution Bench decision of this Court in Shri Gurbaksh Singh Sibbia and others v. State of Punjab, (1980) 2 SCC 565.
3. Siddharam Satlingappa Mhetre v. State of Maharashtra and others, (2011) 1 SCC 694 is a very detailed judgment by a Bench of two Judges on the scope and object of an anticipatory bail. In Mhetre (supra), this Court took the view that the Constitution Bench has held that anticipatory bail granted by the court should ordinarily continue till the trial of the case. To quote:
“94. The proper course of action ought to be that after evaluating the averments and accusation available on the record if the court is inclined to grant anticipatory bail then an interim bail be granted and notice be issued to the Public Prosecutor. After hearing the Public Prosecutor the court may either reject the bail application or confirm the initial order of granting bail. The court would certainly be entitled to impose conditions for the grant of bail. The Public Prosecutor or the complainant would be at liberty to move the same court for cancellation or modifying the conditions of bail any time if liberty granted by the court is misused. The bail granted by the court should ordinarily be continued till the trial of the case.
95. The order granting anticipatory bail for a limited duration and thereafter directing the accused to surrender and apply for a regular bail is contrary to the legislative intention and the judgment of the Constitution Bench in Sibbiacase.”
(Emphasis supplied)
The decision in Mhetre was recently followed in Bhadresh Bipin bhai Sheth v. State of Gujarat and another, (2016) 1 SCC 152.
4. The other line of judgments is that orders of anticipatory bail should be of a limited duration. Salauddin Abdulsamad Shaikh v. State of Maharashtra, (1996) 1 SCC 667 is one of the earlier decisions of a three Judge Bench. True, there is no reference to the Constitution Bench in Sibbia’s case (supra). However, discussing the concept of anticipatory bail, this Court took the view that :-
“2. Under Section 438 of the Code of Criminal Procedure when any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, the High Court or the Court of Session may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail and in passing that order, it may include such conditions having regard to the facts of the particular case, as it may deem appropriate. Anticipatory bail is granted in anticipation of arrest in non-bailable cases, but that does not mean that the regular court, which is to try the offender, is sought to be bypassed and that is the reason why the High Court very rightly fixed the outer date for the continuance of the bail and on the date of its expiry directed the petitioner to move the regular court for bail. That is the correct procedure to follow because it must be realised that when the Court of Session or the High Court is granting anticipatory bail, it is granted at a stage when the investigation is incomplete and, therefore, it is not informed about the nature of evidence against the alleged offender. It is, therefore, necessary that such anticipatory bail orders should be of a limited duration only and ordinarily on the expiry of that duration or extended duration the court granting anticipatory bail should leave it to the regular court to deal with the matter on an appreciation of evidence placed before it after the investigation has made progress or the charge-sheet is submitted.
3. It should be realised that an order of anticipatory bail could even be obtained in cases of a serious nature as for example murder and, therefore, it is essential that the duration of that order sh
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