Sushila Aggarwal and others v. State (NCT of Delhi) (2020): Whether the Order of Anticipatory Bail Time-Bound?
Instances of reputed individuals being falsely implicated by their political rivals were on the rise. The intent behind this was to harass them by putting them behind the bars. Personal liberty is an important facet of the Right to Life. It became necessary to protect the liberty of such individuals. That’s when the concept of ‘Anticipatory Bail’ gained momentum. As the name suggests, it is granted when an individual has apprehension of being arrested.
Though Section 438 of the Criminal Procedure Code, 1973 provides for anticipatory bail but does not define it. Nor it throws light upon the duration for which such bail will subsist. Thus, the question which now arises is whether the anticipatory bail granted to a person is limited for a particular period or it continues till the end of the trial?
A close look at the case of Sushila Aggarwal and others v. State (NCT of Delhi) and Another through the course of this Article will provide answers to all your questions.
Table of Contents:
- Background of the Case
- Sushila Aggarwal and others v. State (NCT of Delhi) and Another
- Contentions Presented by Advocates
- Observations Made by Court
- Final Judgement of the Court
Background of the Case
Different benches of the Apex Court have held different opinions with regards to the time limit of an anticipatory bail granted to a person under section 438 of the Criminal Procedure Code (hereafter referred as CrPC).
In the year 1980, the Supreme Court in the case of Gurbaksh Singh Sibbia and Others v. State of Punjab ruled that there cannot be a persistent formula for granting bail. Thus, a narrow interpretation should not be given to it under section 438 and it is the discretion of the court to direct the duration of the trial.
In the case of Salauddin Abdulsamad Shaikh v. State of Maharashtra (1995), the Apex Court held that the order of anticipatory bail has to be necessarily time-bound.
In the case of Uday Mohanlal Acharya v. State of Maharashtra, (2001) the court observed that even if the accused is on bail, at the stage of committal proceedings, the Magistrate has the power to cancel the bail and commit him to custody.
The Apex Court in the year 2009, held in the case of HDFC Bank Limited v. J.J. Mannan, (2009) and Satpal Singh v. State of Punjab, that once an investigation makes a case against a person and then the charge sheet made includes his name, the accused will have to surrender to the custody of the court and will have to pray for regular bail.
In the case of Siddharam Satlingappa Mhetre v. State of Maharashtra, (2010) the Supreme Court ruled that an anticipatory bail granted to a person once should persist throughout the duration’s trial.
Case: Sushila Aggarwal and others v. State (NCT of Delhi) and Another
In 133-page Judgement, the 5 Judge Bench of Supreme Court while giving a significant verdict in the instant case held that Anticipatory Bail is not fixed for a particular period and can continue till the end of the trial. However, if any special or peculiar features necessitates putting a limitation on the anticipatory bail’s tenure, courts are free to do it.
The conflicting views of Benches with different strengths of Supreme Court as mentioned above with regards to the question of the time limit of an anticipatory bail required certain questions to be referred to a large bench.
- Whether the protection granted to a person under section 438 of P.C. should be limited to a fixed period to enable the person to surrender before the Trial Court and seek regular bail.
- Whether the life of anticipatory bail should end at the time and stage when the accused is summoned by the court.
Contentions Presented by Advocates
Relying upon the Judgement of this court in the case of Balchand Jian v. State of Madhya Pradesh, the learned Senior Advocate Shri Harin P. Raval appeared as Amicus Curiae, submitted that though no proper definition is provided for “anticipatory bail” by the CrPC, as observed by the Apex Court anticipatory bail means “bail in anticipation of arrest”.
He stated that according to the Law Commission of India, the need to introduce ‘anticipatory bail’ was to protect people from their rival influential people who put false charges on them intending to get to put them behind the bars.
He further submitted that anticipatory bail can be given at different stages. Even if no FIR is lodged and a person apprehends his arrest, in case the FIR is lodged, he can apply for “anticipatory bail”. After giving notice to the Public Prosecutor, the court can grant anticipatory bail.
He submitted that anticipatory bail can also be given in the pre-investigation stage. Pre-investigation stage is one in which FIR is lodged but the investigation has not yet begun. Further, he submitted that the “anticipatory bail” can also be given in post-investigation stage.
It is after hearing from the Public Prosecutor, that the High Court or Sessions Court can grant “anticipatory bail”. Thus, if once the anticipatory bail is granted there is no reason to limit the said bail till the court issues summons or limit its period.
Further, he submitted that the Constitution Bench of the Apex Court has in the above-mentioned case of Gurbaksh Singh Sibbia held that, the court has absolute discretion to direct the duration’s trial. It can differ from weeks to the entire period of trial. The consideration should be given to balancing the two competing interests of protecting the accused’s liberty on one hand and the sovereign power of the police to conduct a fair investigation on the other hand.
In the case of Siddharam Satlingappa Mhetre, the Supreme Court has held that once an order of anticipatory arrest is granted, it will continue for the entire duration of the trial.
He further submitted that due to the conflicting opinion given in this said case from the Gurbaksh Singh case, it is necessary to revisit it.
Relying upon the above-mentioned decisions of the Apex Court, Shri Raval, the learned Amicus Curiae concluded as under-
- That the Parliament confers High Court and Session Court, with the power and discretion to decide whether the anticipatory bail application should be allowed or rejected. By looking at the facts and circumstances of the case they can limit the duration of anticipatory bail at any stage that the Court deems fit.
- The anticipatory bail order will not prohibit the investigating agencies in their investigation of the case or from asking and granting, respectively, the police custody of the accused of investigation purposes wherever the officer doing investigation feels that the custody of the accused is necessary.
- That the duration of anticipatory bail order can be restricted and can be left for accused so released on anticipatory bail to apply for regular bail under section 437 and 439.
- That anticipatory bail once granted can be cancelled later either in appeal to a superior forum on the challenge being made or by the same court on the establishment of well-accepted and legally enshrined principles relating to bail cancellation.
Shri K.V. Vishwanathan learned Senior Advocate who also assisted as Amicus Curiae submitted that the power exercised under section 438 is similar to the power exercised under sections 437 and 439 of the CrPC. If the investigating agencies approach Court under section 439(2) of the CrPC, the Court may order to arrest the person.
Shri Tushar Mehta, the learned Solicitor General of India, submitted that after giving a justified reason, the time limit of anticipatory bail can be restricted. The stage and time on which the Court summons the person, the life of the bail will terminate.
Observations Made by Court
Coram: Justice M.R. Shah, Justice Arun Mishra, Justice Indira Banerjee, Justice Vineet Saran, Justice Ravindra Bhat
The Constitutional Bench by pointing towards the difference in forms of arrest under section 438 and 437, stated that the bail under section 438 is sought when there is an apprehension of arrest and later is taken recourse at the stage when sufficient data is available to the Court and thus, no special case needs to be made out in granting bail under section 438.
The Courts have to very cautiously exercise the power granted to them under section 438 and cannot be invoked on vague allegations.
Hon’ble Justice Ravindra Bhatt interpreted Section 438 as an essential element of Article 21 of the Indian Constitution. According to Justice Bhatt, unreasonable restrictions cannot be imposed on the right to anticipatory bail. Further, the provision of section 438 is a procedural legal path that concerns the personal liberty of freedom.
Section 438(2) of CrPC read together with section 437(3) lay enough safeguards for the authorities to prohibit the accused to escape from the authorities. Any kind of violations of the conditions imposed on him will lead to his arrest under section 439(2). The accused who has been granted anticipatory bail will continue to be at liberty even if a charge sheet is filed. But it is his duty to cooperate with the Police and to carefully follow all the conditions.
With regards to the conflicting opinions of the Supreme Court in different cases, the Court held the Judgement given in Siddharam Mhetre v. State of Maharashtra and the Judgements that followed to be bad in law and thus stands overruled. The Constitutional Bench of the Supreme Court in the case of Gurbaksh Singh Sibbia v. State of Punjab is considered as the law and it needs reiteration.
The Hon’ble Justice M.R. Shah stated that in order to balance the rights of the police for investigation as well as that of the accused, in certain conditions the Apex Court will impose a time limit for such bail till FIR is filed. But the normal rule will be not to limit the operation of the order.
Final Judgement of the Court
5 Judge Bench Court unanimously concurred with the opinion that was kept before them.
Regarding the First Issue- The Court held that Anticipatory bail as a ‘general rule’ will not be limited to a fixed period of time. Usual or standard conditions can be imposed under section 437(3) read with 438(2) of CrPC if the situation demands.
Regarding Second Issue-
The life span of Anticipatory bail does not end as soon as summons gets issued by the Trial Court, or after the charges are framed, but can also be continued till the end of the trial. The Court is open to limit the tenure of anticipatory bail if any special or peculiar features necessitates the Court to do so.
Bail has always been an essential aspect of Criminal Law Jurisprudence. Bail protects an individual’s liberty and helps to counter false presumptions. It is a magical tool that is to be carefully used.
The Constitutional Bench in the case of Sushila Aggarwal and others v. State (NCT of Delhi) and Another overruled the judgements that fixed the time period of the anticipatory bail.
The decision given in this case by the Apex Court by acting as a legal precedent will serve the interest of the public. It will set a benchmark for the lower courts to understand the scope of anticipatory bail under section 438 of the CrPC.