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In this post we will discuss about Anticipatory bail and its validity as per criminal procedure code through latest precedent of Supreme Court.

Judgement Digest: Sushila Aggarwal and others vs State

(NCT of Delhi) and another

The recent decision of the Supreme Court which forms the present discussion offers an in-depth analysis of the provision of Section 438 of the Code of Criminal Procedure,1973. Anticipatory bail is prayed for by someone who believes that they may be arrested on an accusation of a criminal charge. If the relief is granted, the person is released on bail at the very moment of the arrest. The essential dispute in this case arises from the various interpretations taken up by the Apex Court benches in many decisions over the past decades. This judgement seems to have settled the position for good.

Read it at Sushila Aggarwal vs State (Nct Of Delhi)

Facts of the Case

The court had appointed an amicus curiae to expand on the issues of the case. He submitted that although anticipatory bail has not been defined in the Code of Criminal Procedure, it was defined as “bail in anticipation of arrest” in the Balchand Jain case cited below. It was also observed in this judgement that the word is a misnomer; an anticipatory bail becomes operative only in the event of an arrest. The historical perspective is that the provision was inserted on the recommendation of the Law Commission’s 41st report. The justification given in the report for “anticipatory bail” was that it is a relief for those who are implicated in false cases by influential people for disgracing them. Further, when there are reasonable grounds that the person will not misuse their liberty or abscond, the process of regular bail is also not justified. Anticipatory bail can be granted only by the High Courts and Sessions Court. It can be given at any stage of the proceedings, be it before an FIR is filed, or investigation is initiated or after. Therefore once the bail is granted in anticipation of the arrest, there is no reason to limit the same till the summon is issued by the Court and/or there is no reason to limit the period of bail in anticipation granted.

In the case of Gurbaksh Singh Sibbia, the Court observed that an arrest restricts a person’s freedom of movement, while a bail restores it. The difference between an ordinary bail and an anticipatory bail is that the former is granted after the arrest and means a release from police custody. The latter is granted in anticipation of an arrest and is effective at the moment of the arrest. Another question that arises here is if new incriminating materials are found during the investigation, whether they could be relied on by the Court to cancel anticipatory bail which has already been granted? These questions were discussed in the above case, where it was held that there is no limit to the currency of an order of anticipatory bail. The Court is vested with absolute discretion to direct the duration of the trial. The sole consideration is to balance the competing interests of personal liberty and police sovereignty.

In Siddharam’s case, the court held that the order of anticipatory bail once granted ordinarily subsists during the entirety of the trial, because of which the power to revisit the bail order is restricted if incriminating facts arise. Two conflicting views emerge: the bail can be of a limited period as per the discretion of the court (Gurbaksh); the bail exists for the entire trial and not for a limited time (Siddharam).

It was submitted that there is no legislative limit on the discretion of the courts and this power is absolute. The view taken in Siddharam is in complete contravention of law laid down in Gurbaksh. The conclusions taken by the amicus curiae were:

The High Court and Sessions court have absolute power to grant anticipatory bail and additional power to limit the duration at any point in time.
The grant of anticipatory bail does not prevent the police to be granted custody. The interests of the police and the accused are thus balanced by restriction of duration.
The life of the order granting anticipatory bail can be restricted- and keeping in view other bail provisions, to 10 days as per judicial precedent.
Anticipatory bail once granted can also be cancelled.

A second amicus curiae was also appointed, who submitted that anticipatory bail functions like any other bail, operating till a direction is issued under 498(2) CrPC. Anticipatory bail puts a check on the power to arrest. The language of Section 438 does not necessitate pre-arrest bail to be time-bound. The order of anticipatory bail is subject to the powers of the Sessions Court and the High Court under Section 439(2) under which arrest of an accused can be directed at any time, i.e., only an order under this section will lead to his arrest.

The Solicitor General submitted that judgements of Siddharam and Salauddin Abdulsamad Shaikh are in contravention of the “normal rule” in Gurbaksh Singh to not limit the time period of bail. Any deviation from this “normal rule” needs to be recorded. There is no straightjacket formula as to whether the bail expires on summoning. The statute does not contemplate an automatic cancellation upon the filing of charge sheet and the judgment in the case of HDFC Bank Limited to that extent might not lay down the correct law.

The Additional Solicitor General submitted that anticipatory bail is effective during the investigation stage and normal bail should be sought when proceedings begin. If pre-arrest bail continues throughout the trial, it shall render 209 (b) of CrPC ineffective.

The counsel for respondents contended that the duration of anticipatory bail is not called in question by any judgment. The life of anticipatory bail would not end on the filing of the charge sheet.

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Issues of the case

Whether the protection granted to a person under Section 438 Cr.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?

Case Laws Cited

Shri Gurbaksh Singh Sibbia and others v. State of Punjab ^[1]

Siddharam Satlingappa Mhetre v. State of Maharashtra ^[2]

Bhadresh Bipinbhai Sheth v. State of Gujarat ^[3]

Salauddin Abdulsamad Shaikh v. State of Maharashtra ^[4]

K.L. Verma v. State and another ^[5]

Sunita Devi v. State of Bihar ^[6]

Nirmal Jeet Kaur v. State of M.P.^[7]

HDFC Bank Limited v. J.J. Mannan ^[8]

Satpal Singh v. State of Punjab ^[9]

Balchand Jain v. State of M.P.^[10]

Findings of the Court

Justice Shah reiterated the basics of anticipatory bail and moved on to analyse the decision in Gurbaksh Singh Sibbia’s case. The Full Bench of Punjab-Haryana High Court summarised the legal position in eight propositions, the gist of which is that the power under Section 438 should be used sparingly and in special cases, should not be applied in grave offences, and should read in relative provisions.

The Supreme Court remarked that the language of Section 438 has clearly departed from those of related provisions, and this should be given due regard. The superior courts have been granted wide discretionary powers per the intent of the wording. It is imperative to protect the freedom of an individual who apprehends arrest following the presumption of innocence.

This does not imply that the courts cannot impose conditions upon the grant of bail. This power has been expressly granted to them. The real question was thus, whether the discretionary power can be limited by the statute conditions as developed by the Full Bench or the ASG. The Court answered this in negative. They are free to exercise their power to grant bail on conditions or altogether refuse it based on the facts of the case.

As per the sixth proposition of the High Court, the power cannot be exercised in regard to offences punishable with death or imprisonment for life unless, the court at the stage of granting anticipatory bail, is satisfied that such a charge appears to be false or groundless. This was rejected because the requirements of Section 437 do not extend to Section 438. If that was the case, it would not be a separate section with clearly departed language. Moreover, at the stage of anticipatory bail, the court would have no concrete data for determining if or not there are reasonable grounds for the order because that stage of investigation is yet to arrive. The discretion of the latter section is not present in the previous one.

The fifth proposition restricted the power when the investigating agency can make a reasonable claim that it can secure incriminating material from information likely to be received from the offender. Again this is not valid because the specific requirements state that the person needs to cooperate. Moreover, as per State of U.P. v. Deoman Upadhyaya ^[11], a person approaching the police with information is deemed to have surrendered and provided sufficient reason for custody.

The fourth proposition was that the person is required to make a special case. The court stated, “We do not see why the provisions of Section 438 should be suspected as containing something volatile or incendiary, which needs to be handled with the greatest care and caution imaginable. A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use.”

The first proposition, which stated that it should be exercised sparingly and in extraordinary cases, was rejected for the provision itself is out of the ordinary ones for bail. Although, they agreed that it should be granted with due care. The court further stated:

The Section cannot be invoked on the basis of vague and general allegations.
The Court must decide whether a case has been made out for granting such relief. It cannot leave the question for the decision of the Magistrate.
Filing of an FIR is not a condition precedent for anticipatory bail.
It can be granted even after an FIR is filed unless the applicant has been arrested.
It cannot be granted after an arrest for that contradicts the very provision.

One proposition was agreed with- the restriction to grant a blanket anticipatory bail. This means that it cannot be granted in the apprehension of “whenever arrested for whichever offence whatsoever”. A case should be made out by the accused, lest it would lead to lawlessness.

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The law in Sibbia has been followed for a long time, where the courts have granted anticipatory bail on specified conditions, the breach of which causes cancellation of the bail order. The decision in Siddharam is in contravention of this law, along with the extreme view taken in Salauddin, i.e., the order has to be limited in a time frame. The former is a decision of a Constitution Bench and as such is binding. The normal rule should be to not limit the time period of the bail and conditions can be imposed by the concerned court while granting prearrest bail order.

Justice Ravindra Bhat agreed with Justice Shah’s judgement but supplied additional conclusions. There were two lines of thought in judgements related to Section 438. One is that anticipatory bail orders should invariably contain a condition that would define its time of operation, after which the individual concerned would have to secure regular bail. The other is that no conditions should be imposed by the court. The history of the section was reiterated and Sibbia analysed similarly as above. The propositions by the Full Bench were also revisited.

The first chord of dissonance from Sibbia was struck in Salauddin, where the court approved the approach of defining the bail period on expiry of which regular bail needs to be sought. This scope was enlarged in K.L. Verma, where it was held that the protection under 438 continues until the application for regular bail is disposed off. This ratio was used in many subsequent cases. In HDFC Ltd. a new axiom was also added which provided that regular bail must be sought if the police “made out” a case against the accused. This was done to prevent the accused from not surrendering. In Salauddin, the court agreed with the decision of the bench in Sibbia. They further held that limiting the period of anticipatory bail is contrary to the provisions of Section 438, right to personal liberty under Article 21, and the legislative intention and law declared by the constitution bench. It is a settled legal position crystallized in Sibbia that the courts should not impose restrictions on the scope of section 438 which are not envisaged by the Legislature. Certain parameters were also laid out in this decision for consideration of granting anticipatory bail, which ranged from nature of the offence, possibility of absconding,, and evaluation of entire material.

The petitioner’s counsel argued that limitation cannot be imposed on the period of bail, it is congruent with the life of the case. Personal liberty is the most cherished freedom, which is why Article 22 provides for bail. The substantive constitutional right of personal liberty can be denied only in accordance with the procedure established by a law that is fair, just, and reasonable.

It was argued that anticipatory bail is a remedy for the apprehension of arrest in a false case. It protects an individual from the trauma of arrest and is based on the presumption of innocence. Relying on Dataram Singh v. State of U.P ^[12], it was stated that in our criminal jurisprudence, the grant of bail is the general rule, and putting a person in jail is an exception. Section 438 read with 439(2) has clear guidelines that a court can impose conditions on its discretion. There have been cases where anticipatory bail has been denied with further orders to surrender and seek regular bail, which is not rationally sound. If an anticipatory bail application is denied, it does not automatically mean that the accused has to surrender and seek regular bail. If later a material change in circumstances leads to the cancellation of bail, the accused has equal right to apply a fresh application of bail. It was urged that the reasoning in Mhetre be followed. In Gurcharan Singh vs State (Delhi Adm), it was stated that when the situation arises, cancellation of bail is the requisite approach rather than limiting the bail period. Statutory bail, i.e., the release of the accused when a charge sheet is not filed within the prescribed period is also deemed to be bail. Conversely in Aslam Babalal Desai v State of Maharastra, it was held that merely due to late filing of the charge sheet, bail or deemed bail cannot be cancelled.

The power of arrest cannot be exercised in every FIR filed, as held in Joginder Kumar v. State of U.P. Decision in M.C. Abraham v. State of Maharastra held that it was not mandatory for the police to arrest a person only because anticipatory bail had been rejected. The power to grant anticipatory bail has been vested in superior courts to ensure that judicial intervention is done at the supervisory level and not at the magisterial level. There is nothing in the language of Section 438 which suggests that the bail has to be time-bound. The scope of 439(2) is not limited to cancellation. In Pradeep Ram v. State of Jharkhand, The difference between cancellation of bail and a direction to take a person into custody under Section 439(2) was recognised. The direction to take a person into custody can be issued without the cancellation of bail. The need for the court’s supervision after the bail had been granted was recognised.

The amicus curiae submitted that it is in a matter of prudence and for the public interest that courts should impose a limit on the life of anticipatory bail. The court can revisit the order once it has been granted, and they are not powerless as such. Unconditional, blanket bail was not the intent of the provision. The court must frame the conditions of the bail such that the interests of the police and the accused are balanced. The law declared in Mhetre is thus erroneous. By the virtue of 437(3), its provisions are to be read with 438(2). “It is needless to mention that the Courts are duty-bound to impose appropriate conditions as provided under Section 438(2) of the Code.”

However, there is no difference in the appraisal of the facts when considering bail under 438 or 439. The court must exercise its discretion properly. In State of M.P. & Anr. v Ram Kishna Balothia & Anr, the court refused to find that 438 was an inherent part of Article 21. The state also argued that the grant of unconditional orders would hamper the investigation and affect public interests thereby.

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The conclusions were as follows:

For question one: The right to life and liberty is the most cherished feature of the constitution. Section 438 is the provision concerned with the personal liberty of an individual who is entitled to the presumption of innocence. To interpret that it does not encapsulate Article 21 is erroneous. The question is not whether it is an inherent part of it, but whether it is part of fair procedure.

The Law Commission proposed minor changes to the provision in its 154th Report. In the 177th Report, it heavily criticised the abuse of power of arrest. The provision remains unaltered except for the recent Criminal Law (Amendment) Act of 2018 which added subsection 438(4) to the Code. According to the amendment, a positive restriction has been put on courts so that they cannot grant anticipatory bail to those accused of offences listed in the subsection. Thus, no restriction in the form of judicial legislation can be imposed.

The imposition of conditions under Section 438(2) with reference to Section 437(3) was considered enough safeguard for the authorities. The concerns listed out by the Full Bench in its propositions are adequately covered in every order of anticipatory bail. Even if there is any breach of any condition, the court has other powers, such as to order arrest. State of Haryana v. Sampuran Singh observed that by no stretch of the imagination a Judge is entitled to add something more than what is there in the statute by way of a supposed intention of the legislature. The narrower interpretation of the provision can lead to denial of bail to a genuine petitioner.

Therefore, the court held that the view expressed in Mhetre and subsequent decisions that the grant of anticipatory bail for a limited period or not for certain offences is not good law and such observations were overruled. Further, the rule in Salauddin was also very wide and not god law. In conclusion, it was held that imposing conditions while granting bail is normal.

For question two: The question here was whether there is anything in the law which requires that upon the filing of the charge-sheet, or the summoning of the accused, by the court, he should be asked to surrender and apply for regular bail. The judgement of Aslam Babalal Desai is relevant here. The mere fact that an accused is given relief of anticipatory bail at one stage does not mean that upon the filing of a charge-sheet, he is necessarily to surrender and apply for regular bail. The interesting observation here was that if a charge-sheet is filed where the accused is on anticipatory bail, the normal implication would be that there was no occasion for the investigating agency or the police to require his custody.

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Conclusion

The court thus came to the conclusions that:

Anticipatory bail should not be granted for a limited time period, and should impose the standard provisions under Sections 438 and 437.
The life of anticipatory bail does not expire with the filing of the charge sheet or the summoning by the court. However, if there are any special or peculiar features necessitating the court to limit the tenure of anticipatory bail, it is open for it to do so.

In the light of the grave implications of arbitrariness in power to arrest, which were apparent from even before the Independence, the Constitution has upheld the principles of personal liberty in the highest regard. This is clear in the spirit of Article 21 and Article 22. The Criminal Procedure Code vests great power in the hands of the police and investigating authority with the various provisions of the arrest of any accused. This has lead to utter misuse of the authority by the police for misdeeds like corruption and vengeance. The provision of anticipatory bail is a respite for those who fall victim to such exploitation. For decades, various decisions regarding this have been at odds with each other. Some sought to impose narrowing interpretations and restrictions, while others completely disregarded the power to do so. The final position restores the unique discretionary power given to the High Courts and Sessions Court, along with additional powers to amend their orders given in pursuance of the long-debated provision.

References

As given in footnotes.

This post was written by Jigyasa Kharbanda

Rest for case specific advice, one may contact best 498A Anticipatory Bail Criminal Lawyer Advocate of Chandigarh Panchkula Mohali (Punjab & Haryana). Kharar Derabassi Zirakpur