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SUPREME COURT OF INDIA
M.R. SHAH, S. RAVINDRA BHAT, ARUN MISHRA, INDIRA BANERJEE, VINEET SARAN, JJ.
Sushila Aggarwal and others – Petitioners
Versus
State (NCT of Delhi) and another – Respondents
SPECIAL LEAVE PETITION (CRIMINAL) NOS.72817282 of 2017
Decided On : 29-01-2020
Per M.R.Shah, J.
(a) Code of Criminal Procedure, 1973 - Section 438 - Pre-arrest or anticipatory bail - Not defined in the Code - A misnomer as it is not a bail presently granted by Court in anticipation of arrest - Accused can move application before FIR is filed or before filing of charge sheet if FIR is registered - Court can impose conditions including limited period of “anticipatory bail” - A person to whom anticipatory bail is granted can be arrested but has to be released on arrest - Narrow, restricted interpretation of Section 438 not warranted - Pre-arrest bail not required to be time bound. (Para 7)
Per Ravindra Bhat, J. (Concurring)
(b) Code of Criminal Procedure, 1973 - Section 438 - Section 438 does not use the term ‘anticipatory bail’ - Instead, it empowers the concerned to court to issue directions for grant of bail - Provision not hedged with any conditions or limitations-either as to its duration, or as to the kind of alleged offences that an applicant was accused of having committed. (Para 40, 46)
(c) Code of Criminal Procedure, 1973 - Section 438 and Article 21, Constitution of India - right to personal freedom cannot be made to depend on compliance with unreasonable restrictions - The provision is pro-liberty - Enables one anticipating arrest, a facility of approaching the court for a direction that he or she not be arrested - It was specifically enacted as a measure of protection against arbitrary arrests and humiliation by the police - Requirement of imposing conditions is not compulsive. (Para 47, 50, 54)
(d) Code of Criminal Procedure, 1873 - Section 438 - A blanket restriction cannot be read into section 438- Nor inflexible guidelines in exercise of discretion be insisted upon - That would amount to judicial legislation. (Para 56)
(e) Code of Criminal Procedure, 1973 - Section 438 - Sub-section (2) spells out three distinct restrictions as to cooperation with police in investigation, not influencing any person from disclosing any material fact to police or the court and not to leave India without permission of the court - Courts can impose other conditions also but while doing to conditions that are not there should not be read into the provision - Imposition of conditions under Section 438(2) with reference to Section 437(3) is enough safeguard. (Para 59, 60, 61)
(f) Code of Criminal Procedure, 1873 - Section 438 - No offence stands excluded from the purview of Section 438, except those mentioned in sub-section (4) - However, provisions of any special law or statute excluding relief under section 438(1) would have to be duly considered - There can be no inflexible time frame for which an order of anticipatory bail can continue. (Para 68)
(g) Code of Criminal Procedure, 1873 - Section 438 - Deemed bail - Section 167(2) - Person on anticipatory bail need not surrender upon filing of charge-sheet, or summoning of the accused by the court, or even addition of an offence in the charge-sheet. (Para 70)
(h) Code of Criminal Procedure, 1873 - Section 438 and 439 - In case of non compliance of the conditions of anticipatory bail imposed under section 438(2) prosecution can approach court under section 439(2) for arrest. (Para 71)
(h) Code of Criminal Procedure, 1873 - Section 438 - Subject to compliance with the conditions imposed - Anticipatory bail given to a person can continue till end of the trial. (Para 76)
Facts of the case:
On reference, in view of conflicting views of different Benches, the following questions arise for consideration in this case:
(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.
Finding of the Court:
Subject to compliance with the conditions imposed, anticipatory bail given to a person can continue till end of the trial.
JUDGMENT
M.R. SHAH, J.
In the light of the conflicting views of the different Benches of varying strength, more particularly in the cases of Shri Gurbaksh Singh Sibbia and others v. State of Punjab (1980) 2 SCC 565; Siddharam Satlingappa Mhetre v. State of Maharashtra (2011) 1 SCC 694; Bhadresh Bipinbhai Sheth v. State of Gujarat (2016) 1 SCC 152 on one side and in the cases of Salauddin Abdulsamad Shaikh v. State of Maharashtra (1996) 1 SCC 667, subsequently followed in the case of K.L. Verma v. State and another (1998) 9 SCC 348; Sunita Devi v. State of Bihar (2005) 1 SCC 608; Nirmal Jeet Kaur v. State of M.P. (2004) 7 SCC 558; HDFC Bank Limited v. J.J. Mannan (2010) 1 SCC 679; and Satpal Singh v. State of Punjab (2018) 4 SCC 303, the following questions are referred for consideration by a larger Bench:
“(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.”
2. Shri Harin P. Raval, learned Senior Advocate appearing as Amicus Curiae relying upon the decision of this Court in the case of Balchand Jain v. State of M.P. (1976) 4 SCC 572 has submitted that though the expression “anticipatory bail” has not been defined in the Code, as observed by this Court in the aforesaid decision, “anticipatory bail” means “bail in anticipation of arrest”. It is submitted that in the aforesaid decision, this Court has further observed that the expression “anticipatory bail” is a misnomer inasmuch as it is not as if bail is presently granted by the Court in anticipation of arrest. It is submitted that when a competent court grants “anticipatory bail”, it makes an order that in the event of arrest, a person shall be released on bail. It is submitted that there is no question of release on bail unless a person is arrested and, therefore, it is only on arrest that the order granting “anticipatory bail” becomes operative.
2.1. Shri Raval, learned Amicus Curiae has taken us to the historical perspective on the inclusion of Section 438 of the Cr. P.C. It is submitted that on the recommendation of the Law Commission of India in its 41st Report dated 24.09.1969, the Parliament introduced a new provision in the form of “anticipatory bail” under Section 438 of the Cr.P.C. It is submitted that the Law Commission of India in its 41st Report stated in paragraph 39.9 the justification for power to grant “anticipatory bail”. It is submitted that as per the Law Commission the necessity for granting “anticipatory bail” arises mainly because sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. It is submitted that the Law Commission further observed that with the accentuation of political rivalry, this tendency is showing signs of steady increase. Apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty, while on bail, there seems to be no justification to require him to first submit to custody, remain in prison for some days, and then apply for bail.
2.2 It is further submitted that power to grant “anticipatory bail” vests only in the High Courts or the Courts of Sessions. It is submitted that the “anticipatory bail” can be applied at different stages. It is submitted that even in a case where no FIR is lodged and a person is apprehending his arrest in case the FIR is lodged, in that case, he can apply for “anticipatory bail” and after notice to the Public Prosecutor the Court can grant “anticipatory bail”. It is submitted that even in a case where the FIR is lodged but the investigation has not yet begun, i.e., pre investigation stage, the “anticipatory bail” can be applied. It
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