This article is written by Tarun Gaur.
Recently, in Sushila Aggarwal v. State (NCT of Delhi)[1], Supreme Court has made a reference to a larger bench to address the issue as to “whether an order granting anticipatory bail should be restricted in time or not?” This comes at a time when questions on anticipatory bail are being raised from many fronts. Vide this article, I have tried to conceptualise the provisions for anticipatory bail, by analysing the provisions given u/s 438 CrPC and judicial precedents on the said point, in order to ascertain as to whether there was any need for such reference or the issue stands settled way back in 1980?
The legal framework
The law relating to anticipatory bail is laid down in section 438 of the Criminal Procedure Code which is-
[2][(1) where any person has a reason to believe that he may be arrested on accusation of having committed a non bailable offence, he may apply to the HC or the court of session for a direction under this section that in the event of such arrest he shall be released on bail; and that court may, after taking into consideration, inter alia, the following factors, namely:-
- The nature and gravity of accusation;
- The antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a court in respect of any cognizable offence;
- Possibility of the applicant to flee from justice; and
- Where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested;
Either reject the application forthwith or issue an interim order for the grant of anticipatory bail:
Provided that, where the high court or, as the case may be, the court of session, has not passed any interim order under this sub-section or has rejected the application for gent of anticipatory bail, it shall be open to an officer in-charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application.]
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Analysis of the provision
A bare perusal of the aforementioned provision provides for a remedy for a situation, where a person is not yet arrested by the police but he apprehends his arrest on an accusation of having committed a non-bailable offence, he can move to High Court or Court of Session with that apprehension and ask the court to grant him an order which would entitle him to be released on bail in the event he be arrested. The section, nowhere provides for any kind of time limitation on the orders passed under same.
The controversy
The controversy regarding an order of anticipatory bail is that of time limitation. Lately, Courts are trying to interpret section 438, as a provision which provides for a relief for limited duration. The reasoning given for such interpretation is that, they feel, provision for anticipatory bail exists for the sole purpose of providing the accused person some time to enable him to apply to the regular court for grant of regular bail and therefore, an order granting anticipatory bail will operate only until the regular bail of said accused person is finally disposed of. This line of reasoning also gets its backing from certain judgments of Supreme Court where it has been held that an order of anticipatory bail is not an order until the end of trial but is an order which can only be passed for a limited duration. The court said that it’s for the purpose of allowing the applicant to approach the regular court for the grant of regular bail and it will survive only till the time his regular bail is finally disposed of. Such judgments are passed in ignorance of the law laid down by the constitution bench in Shri Gurbaksh Singh Sibbia & Ors v. State of Punab[3] (Sibbia’s case).
The Supreme Court’s judgments, which are given in ignorance of Sibbia’s case, have already been overruled by Supreme Court in Siddharam Satlingappa Mehtre v. State of Maharashtra & Ors.[4](Mehtre’s case).
In Sushila Aggarwal v. state (NCT) (supra), one line of arguments placed before the court was in accordance with the reasoning given in Sibbia’s case and Mehtre’s case, and counter line of arguments was in accordance with the judgments, which were passed in ignoratium of Sibbia’s case, which stated that anticipatory bail should be for limited duration only. One of the earlier decisions of three judges which placed time restrictions on an order of anticipatory bail is Salauddin Abdulsamad Shaikh v. State of Maharshtra[5]. The court held that anticipatory bail is granted in anticipation of arrest in a non bailable case but that does not mean that regular court should be bypassed. The court held:
“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 HC 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.”
This view was then reiterated in K L Verma v. State[6], Sunita Devi v. State of Bihar[7], Adri Dharan Das v. State of WB[8].
Another point on the same lines, with certain modifications, given by Supreme Court in HDFC Bank Ltd v. J.J. Mannan[9] is as follows:
“19. The object of section 438 has been repeatedly explained by this court and the high courts to mean that a person should not be harassed or humiliated in order to satisfy the grudge or personal vendetta of the complainant. But at the same time the provisions of section 438 CrPC cannot also be invoked to exempt the accused from surrendering to the court after the investigation is complete and if charge-sheet is filed against him. Such an interpretation would amount to violence to the provisions of section 438 CrPC since even though a charge-sheet may be filed against an accused and charge is framed against him, he may still not appear before the court at all even during the trial.
- Section 438 contemplates arrest at the stage of investigation and provides a mechanism for an accused to be released on bail should he be arrested during the period of investigation. Once the investigation makes out a case against him and he is included as an accused in the charge-sheet, the accused has to surrender to the custody of the court and pray for regular bail. On the strength of an order granting anticipatory bail, an accused against whom charge has been framed, cannot avoid appearing before the trial court.”
With due respect, I believe, this is an erroneous conclusion drawn by Supreme Court, especially the fact that anticipatory bail is till the period of investigation. Nowhere in the entire section 438 CrPC, is any such thing mentioned. It’s impossible to fathom as to from where the court has reached this conclusion. This is despite the fact that the judgment of Sibbia’s case was placed on record in this case, yet the court, reached such an erroneous conclusion.
Another example, where in my view, the court has interpreted the concept of anticipatory bail contrary to what is mentioned in section 438 CrPC, is Satpal Singh v. State of Punjab[10]. The court held:
“14. In any case, the protection under section 438, CrPC is available to the accused only till the court summons the accused based on the charge sheet (Report under section 173(2), CrPC). On such appearance, the accused has to seek regular bail under section 439 CrPC and that application has to be considered by the court on its own merits. Merely because an accused was under the protection of anticipatory bail granted under section 438 CrPC, does not mean that he is automatically entitled to regular bail under section 439 CrPC. The satisfaction of the court for granting protection under section 438 CrPC is different from the one under section 439 CrPC while considering regular bail.”
It is important to note that, when a person is already out on anticipatory bail and he gets arrested and executes a bond in accordance with the order of anticipatory bail, then the order of anticipatory bail becomes regular bail and therefore, the accused when appears in court on filing of charge sheet, he is already out on bail and not on anticipatory bail. Therefore, he doesn’t need to apply for bail again and if he is forced to apply again, then it would lead to subjecting him to a process where he is applying for a relief which he already possess, which is contrary to everything including common sense. Further we follow adversarial method of criminal justice system, wherein accused is deemed to be innocent until proven guilty and this system of subjecting him to such double test, for a relief he already possess, goes against the entire criminal jurisprudence and what it means is that the accused is being asked to prove his innocence in the very beginning.
Supreme Court’s stand on the issue
A constitution bench of Supreme Court in Sibbia’s case, dealt with this issue at length and put the controversy to rest by holding categorically, that an order of anticipatory bail is not limited in time and will subsist till the end of trial. The court has explicitly and unequivocally held that in cases where FIR is not yet registered and the applicant is seeking anticipatory bail, in those cases, the court ‘may’ grant an order of anticipatory bail, limited in time but in other cases, i.e. where applicant is seeking anticipatory bail after the registration of FIR, the order of anticipatory bail ‘shall’ not be restricted in time. This difference of ‘may’ and ‘shall’ is quintessential to the whole concept of time limitation on anticipatory bail, as is enumerated in the Sibbia’s case, and therefore can’t be overlooked. This difference has been deliberately added in order to make sure that if in future such controversy arises, then it can be solved then and there. The court in para 42 held:
“42. There was some discussion before us on certain minor modalities regarding the passing of bail orders u/s 438(1). Can an order of bail be passed under the section without notice to the Public Prosecutor? It can be. But notice should issue to the public prosecutor of the government advocate forthwith and the question of bail should be re-examined in the light of respective contentions of the parties. The ad interim order too must conform to the requirements of the section and suitable conditions should be imposed on the applicant even at that stage. Should the operation of an order passed u/s 438(1) be limited in point of time? Not necessarily. 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 u/s 437 or 439 of the code within a reasonably short period after the filing of the FIR as aforesaid. But this need not be followed as an invariable rule. The normal rule should be not to limit the operation of the order in relation to a period of time.
- “during the last couple of years this court, while dealing with appeals against orders passed by various High Courts, has granted anticipatory bail to many a person by imposing conditions set out in section 438(2)(i),(ii) and (iii). The court has, in addition, directed in most of those cases that (A) the applicant should surrender himself to the police for a brief period if a discovery is to be made under section 27 of the Evidence act, or that he should be deemed to have surrendered himself if such a discovery is to be made. In certain exceptional cases, the court has, in view of the material placed before it, directed that the order of anticipatory bail will remain in operation only for a week or so until after the filing of the FIR in respect of matters covered by the order. These orders, on the whole, have worked satisfactorily, causing the least inconvenience to the individuals concerned and least interference with the investigational rights of the police. The court has attempted through orders to strike a balance between the individual’s right to personal freedom and the investigational rights of the police. The appellant who were refused anticipatory bail by various courts have long since been released by this court under section 438(1) of the code.”
Examining the SC’s arguments
In my opinion, the argument that an order of anticipatory bail should be restricted in time and it is only passed till the stage of investigation is over, after which the accused have to apply for regular bail, is inherently fallacious. An order of anticipatory bail, by virtue of its special character, is one which becomes operative on the arrest of a person and the provisions of regular bail come into picture when a person is arrested or in custody. Therefore, when a person who has obtained an order of anticipatory bail, gets arrested and then gets released by virtue of order of anticipatory bail, the person ceases to be in custody. Therefore, he can’t move regular court for regular bail as the very essence of regular bail is absent in such a situation. Therefore, it is completely unimaginable as to how such process can be facilitated and if this is made a law, it would lead to bypassing of what is mandated in section 439 CrPC. In other words, the requirements of section 439 would become dead letter and no part of a statute can be rendered redundant in that manner.
To say, granting anticipatory bail means bypassing the regular court is, in my opinion, an absurd argument. It is not bypassing, as if that would have been the case, the legislature wouldn’t have thought of including a specific provision for anticipatory bail, instead would have simply added one sub para or by way of proviso in 437/439 only, that the regular court only have the power to grant anticipatory bail for a shorter period or till the time the bail application is disposed of. But again, that would be interim bail and not anticipatory bail. Therefore, saying that grant of anticipatory bail till the end of trial is bypassing the regular court is vague and absurd and not in consonance with the law. Further there are certain considerations that need to be looked into before granting or refusing anticipatory bail. This in itself means meticulous application of judicial mind of higher courts i.e. High Court and Court of Session, which wouldn’t have occurred if purpose of anticipatory bail was intended to be only to give an accused person some time to approach the regular court for obtaining an order of regular bail. If contrary would have been the case, then the role of High Court and Court fo Session would have been a formal one and they wouldn’t have required to go into facts of the case and apply the considerations in order to find out if a case for grant of anticipatory bail is made out or not.
Moreover, the legislature amended section 438 in 2005, but didn’t insert anything to the provisions by which it would have interpreted that provisions of 438 are to operate for limited duration only. All this shows that neither there is any nor there have been ever any, intent of this nature in the mind of legislature.
Main ground given for reference by the Ld. Amicus Curiae, is that Sibbia’s case didn’t specify about the time limit of anticipatory bail. With all due respect to the Ld. Sr. Amicus, I disagree with his contention. Sibbia’s case, very categorically and in clear terms, states that anticipatory bail is not time restricted. The only time it puts such fetters on order of anticipatory bail is in a situation when anticipatory bail is obtained but FIR is not registered. And even in that case, the word, it used is “may” and not “shall”, there go even in that case, it is left to the discretion of court.
Some often overlooked issues
There are certain important aspects which have been constantly overlooked and I believe, it is the ignorance of same only which has lead to the controversy at hand. One of the important issue which have been constantly overlooked is that, an order of anticipatory bail is not an order which stays an order of anticipatory bail forever. It is an order which, when a person gets arrested and he furnishes a bond in accordance with the order of anticipatory bail, he is no longer out on anticipatory bail but on regular bail. Therefore, what it means is that an order of anticipatory bail becomes an order of regular bail, the moment the person is arrested. Therefore, the argument i.e. once anticipatory bail is granted, one must approach regular court for regular bail, fails on this very aspect. Now, if a person on anticipatory bail, after furnishing the bond, is out on bail, is forced to apply to regular court for grant of regular bail, it will lead to a situation, in which the applicant is subjected to different judicial forum’s mind for the same thing, twice, which have huge possibility of creating imbalance in judicial propriety.
Further, section 438 provides for concurrent jurisdiction of High Court and Session Court. If the intent would have been to provide relief of anticipatory bail only till the time investigation is going on, there wouldn’t be concurrent jurisdiction, that too of such higher courts. Forums are clearly defined in 437 and 439, therefore, legislature wouldn’t have bothered to create a new provision for anticipatory bail when it could have simply added the relief of anticipatory bail in 437/439 only. Moreover, the very fact that the power to grant anticipatory bail is given to superior echelons i.e. High Court and Court of Sessions and not to magisterial court, clearly shows that the intent of legislature behind enacting the provision of anticipatory bail is that, it is a remedy which is exceptional in nature, requires a higher degree of scrutiny and therefore, will fall in exclusive domain of higher courts. It is true that regular court is not involved in this process, but at the same time, the considerations and scrutiny of the facts in conjunction with well settled grounds for bail, is also high as the same is done by higher courts. Therefore, in such situation when an order for grant of anticipatory bail is passed, its veracity can’t be assailed by placing imaginary fetters on order granting anticipatory bail i.e. treating it as an order granting temporary relief.
Recourse after the granting of anticipatory bail
The entire controversy, as is narrated in Sushila Agarwal (Supra), in my opinion, stems from the fear as to what can be done in the event, the order of anticipatory bail is misused by the applicant. It is generally believed that if anticipatory bail is granted, the applicant will misuse his liberty and will not be available for his trial or will try to tamper with the evidence or will threaten the witnesses, so on and so forth. It is to be remembered that the legislature has not left any vacuum for such situation. The recourse regarding such situation is provided by the legislature in CrPC itself i.e. the remedy of filing an application for cancellation of bail, granted to the accused. It’s not like there is nothing that prosecution or complainant can do in case anticipatory bail is misused by the accused. In fact section 439(2) in its clear terms stipulates that a High Court or Court of Session may direct that any person who has been released on bail be arrested and commit him to custody. This provision clearly and categorically stipulates that High Court or Court of Session have the power to commit any person, released on bail, to the custody again.
Conclusion
In the light of above, I feel, that the law laid down by the constitution bench in Sibbia’s case which is then meticulously examined and reiterated by Supreme Court in Mehtre’s case, is the correct law on the point of time restriction on an order of anticipatory bail. An order of anticipatory bail can’t be restricted in time and saying that once anticipatory bail is obtained, one will invariably have to approach regular court to obtain regular bail, will be unreasonable, fallacious and illegal. In view of same, I believe, there was no need for any reference of such issue to a larger bench, but since a reference has already been made, the ultimate outcome is best left to the wisdom of the court and its fine sense of judgment.
[1] 2018 SCC OnLine SC 531
[2] Subs. By Act 25 of 2005, sec. 38, for sub-section (1) (effective date yet to be notified)
Sub-section (1), before substitution, stood as under:
“(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 ti thinks fit, direct that in the event of such arrest, he shall be released on bail.”
[3] AIR 1980 SC 1632
[4] (2011) 1 SCC 694
[5] (1996) 1 SCC 667
[6] (1998) 9 SCC 348
[7] (2005) 1 SCC 608
[8] (2005) 4 SCC 303
[9] (2010) 1 SCC 679
[10] (2018) SCC OnLine SC 415
