Sushila Aggarwal and Others vs State (NCT of Delhi) and Another

The expression “anticipatory bail” has not been defined in the Code. As observed by Supreme Court in the case of Balchand Jain, “anticipatory bail” means “bail in anticipation of arrest”. As held, 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. An application for “anticipatory bail” in anticipation of arrest could be moved by the accused at a stage before an FIR is filed or at a stage when FIR is registered but the charge sheet has not been filed and the investigation is in progress or at a stage after the investigation is concluded. Power to grant “anticipatory bail” under Section 438 of the Cr.P.C. vests only with the Court of Sessions or the High Court. Therefore, ultimately it is for the concerned court to consider the application for “anticipatory bail” and while granting the “anticipatory bail” it is ultimately for the concerned court to impose conditions including the limited period of “anticipatory bail”, depends upon the stages at which the application for anticipatory bail is moved. A person in whose favour a pre-arrest bail order is made under Section 438 of the Cr.P.C. has to be arrested. However, once there is an order of pre-arrest bail/anticipatory bail, as and when he is arrested he has to be released on bail. Otherwise, there is no distinction or difference between the pre-arrest bail order under Section 438 and the bail order under Section 437 & 439 of the Cr.P.C. The only difference between the pre-arrest bail order under Section 438 and the bail order under Sections 437 and 439 is the stages at which the bail order is passed. The bail order under Section 438 of the Cr.P.C. is prior to his arrest and in anticipation of his arrest and the order of bail under Sections 437 and 439 is after a person is arrested. A bare reading of Section

438 of the Cr.P.C. shows that there is nothing in the language of the Section which goes to show that the pre-arrest bail granted under Section 438 has to be time bound. The position is the same as in Section 437 and Section 439 of the Cr.P.C. [Para 7.1][33EH, 34A-D]

1.2 Considering the decision of the Constitution Bench of Supreme Court in the case of Gurbaksh Singh Sibbia and the relevant observations, the decision of this Court in the case of Siddharam Satlingappa Mhetre to the extent it takes the view that the life of the order under Section 438 Cr.P.C. cannot be curtailed is not a correct law in light of the observations made by the Constitution Bench in paragraphs 42 and 43 in Gurbaksh Singh Sibbia. The decision of Supreme Court in the case of Salauddin Abdulsamad Shaikh which takes an extreme view that the order of “anticipatory bail” has to be necessarily limited in time frame is also not a good law and is against and just contrary to the decision in the case of Gurbaksh Singh Sibbia, which is a Constitution Bench judgment. [Para 7.4]

1.3 Thus, considering the observations made by the Constitution Bench of Supreme Court in the case of Gurbaksh Singh Sibbia, the court may, if there are reasons for doing so, limit the operation of the order to a short period only after filing of an FIR in respect of the matter covered by order and the applicant may in such case be directed to obtain an order of bail under Sections 437 or 439 of the Code within a reasonable short period after the filing of the FIR. The Constitution Bench further observed that the same need not be followed as an invariable rule. It is further observed and held that normal rule should be not to limit the operation of the order in relation to a period of time. The conditions can be imposed by the concerned court while granting pre-arrest bail order8787 including limiting the operation of the order in relation to a period of time if the circumstances so warrant, more particularly the stage at which the “anticipatory bail” application is moved, namely, whether the same is at the stage before the FIR is filed or at the stage when the FIR is filed and the investigation is in progress or at the stage when the investigation is complete and the charge sheet is filed. However, the normal rule should be not to limit the order in relation to a period of time. [Para 7.5][49D-H]

Shri Gurbaksh Singh Sibbia and others v. State of Punjab (1980) 2 SCC 565 : [1980] 3 SCR 383 – relied on.

Siddharam Satlingappa Mhetre v. State of Maharashtra (2011) 1 SCC 694 : [2010] 15 SCR 201 – held not correct law.

Salauddin Abdulsamad Shaikh v. State of Maharashtra (1996) 1 SCC 667 : [1995] 6 Suppl. SCR 556 – held not good law.

Bhadresh Bipinbhai Sheth v. State of Gujarat (2016) 1 SCC 152 : [2015] 10 SCR 398; K.L. Verma v. State and another (1998) 9 SCC 348; Sunita Devi v. State of Bihar (2005) 1 SCC 608 : [2004] 6 Suppl. SCR 707; Nirmal Jeet Kaur v. State of M.P. (2004) 7 SCC 558 : [2004] 3 Suppl. SCR 1006; HDFC Bank Limited v. J.J. Mannan (2010) 1 SCC 679 : [2009] 16 SCR 590; Satpal Singh v. State of Punjab (2018) 4 SCC 303 : [2018] 3 SCR 739; Balchand Jain v. State of M.P. (1976) 4 SCC 572 : [1977] 2 SCR 52; Joginder Kumar v. State of U.P. (1994) 4 SCC 260; Lalitha Kumari v. State of U.P. (2014) 2 SCC 1 : [2013] 14 SCR 713; Arnesh Kumar v. State of Bihar (2014) 8 SCC 273 : [2014] 8 SCR 128; M.C. Abraham v. State of Maharashtra (2003) 2 SCC 649 : [2002] 5 Suppl. SCR 677 ; Uday Mohanlal Acharya v. State of Maharashtra (2001) 5 SCC 453 : [2001] 2 SCR 878 – referred to.

41st Report of the Law Commission of India – referred to. PER S. RAVINDRA BHAT, J. [CONCURRING]

2.1 Bail ipso facto has not been defined under the Code. It is now widely recognized as a norm which includes the governing principles enabling the setting of accused person on liberty subject to safeguards, required to make sure that he is present whenever needed. The justification for bail (to one accused of commission or committing a crime is that it preserves a person who is under cloud of having transgressed law but not convicted for it, from the rigors of a detention. Section 438 of the Cr.PC provides for the issuance of directions for the grant of bail to a person apprehending arrest. The Cr.PC of 1973 replaced the old code of 1898. The old code did not provide for any corresponding provision to Section 438 of the code of 1973. Under the old code, there was a sharp difference of opinion amongst the various High Courts on the question as to whether courts had the inherent power to pass an order of bail in anticipation of arrest. The predominant position was that courts did not have such a power. Subsequently, the need for various amendments to make the code more comprehensive resulted in the enactment of the Code of Criminal Procedure in 1973. Section 438 does not expressly use the term “anticipatory bail”; its language instead empowers the concerned to court to issue directions for grant of bail. [Paras 39, 40][94H], [95A-D]

2.2 The term ‘anticipatory bail’ finds no place in the Cr.PC itself but was used by the Law Commission of India in its 41st Report. The term was used to convey that it was an application for bail in anticipation of arrest, i.e., before the arrest itself is made. The pre-dominant thinking of the larger, Constitution Bench, in Sibbia, was that given the premium and the value that the Constitution and Article 21 placed on liberty- and given that a tendency was noticed, of harassment – at times by unwarranted arrests, the provision for anticipatory bail was made. It was 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. The courts had the discretion to impose such limitations (like co-operation with investigation, not tampering with evidence, not leaving the country etc) as were reasonable and necessary in the peculiar circumstances of a given case. However, there was no invariable or inflexible rule that the applicant had to make out a special case, or that the relief was to be of limited duration, in a point of time, or was unavailable for any particular class of offences. [Paras 42,46][95G, 99G-H, 100A-C]

2.3 Some judgments, notably Ram Kishna Balothia & Anr. and Jai Prakash Singh v State of Bihar held that the provision for anticipatory bail is not an essential ingredient of Article 21, particularly in the context of imposition of limitations on the discretion of the courts while granting anticipatory bail, either limiting the relief in point of time, or some other restriction in respect of the nature of the offence, or the happening of an event. Such observations are contrary to the broad terms of the power declared by the Constitution Bench of this court in Sibbia. The larger bench had specifically held that an “over-generous infusion of constraints and conditions which are not to be found in Section

438 can make its provisions constitutionally vulnerable since the right to personal freedom cannot be made to depend on compliance with unreasonable restrictions.” The reason for enactment of Section 438 in the Code was Parliamentary acceptance of the crucial underpinning of personal liberty in a free and democratic country. Parliament wished to foster respect for personal liberty and accord primacy to a fundamental tenet of criminal jurisprudence, that everyone is presumed to be innocent till he or she is found guilty. Life and liberty are the cherished attributes of every individual. The urge for freedom is natural to each human being. Section 438 is a procedural provision concerned with the personal liberty of each individual, who is entitled to the benefit of the presumption of innocence. As denial of bail amounts to deprivation of personal liberty, the court should lean against the imposition of unnecessary restrictions on the scope of Section 438, especially when not imposed by the legislature. The interpretation of Section 438- that it does not encapsulate Article 21, is erroneous. This court is of the opinion that the issue is not whether Section 438 is an intrinsic element of Article 21: it is rather whether that provision is part of fair procedure. As to that, there can be no doubt that the provision for anticipatory bail is pro-liberty and 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, which Parliament itself recognized as a widespread malaise on the part of the police. [Paras 47, 49 and 50][100C-F, 101B-D, E-G]

2.4 A fuller consideration of the various decisions cited earlier, especially those which emphasized the need to limit the life of an order of anticipatory bail, are premised on the understanding that the grant of an unconditional order of bail would thwart investigation. In the first place, this premise is unfounded, given that Sibbia stated that such an order would be “contrary to the terms” of Section 438; and furthermore, that conditions mentioned in Section 438(2) could be imposed while granting anticipatory bail. The requirement of imposing conditions is not compulsive (noticing the use of the term “may” which precedes the requirement of imposing conditions). Nevertheless, an unconditional order, in the sense of an order not even imposing conditions mentioned in Section 438(2) can impede or hamper investigation, Sibbia held that the conditions mentioned in that provision should be imposed. This requirement is more a matter of prudence, while granting relief. The Law Commission’s 41st and 48th report focused on the need to introduce the provision (for anticipatory bail) as a preventive, or curative measure, to deal with a particular problem, i.e. unwarranted arrests. Sibbia noticed this fact, and also that significantly, Section 438 is not hedged with any obligation on the court’s power, to impose conditions. That situation remains unchanged: the provision remains unaltered-at least substantially (barring an amendment in 2005 which obliged the issuance of notice to the public prosecutor before issuing any order for anticipatory bail). The 203rd Report of the Law Commission, which reviewed the entire law on the subject and noticed later decisions, such as Salauddin, Adari Narain Das, etc, recommended no change in law on this aspect relating to conditions. In this background, it is important to notice that the only bar, or restriction, imposed by Parliament upon the exercise of the power (to grant anticipatory bail) is by way of a positive restriction, i.e. in the case where accused are alleged to have committed offences punishable under Section 376(3) or Section 376AB or Section 376DA or Section 376DB of the Indian Penal Code. In other words, Parliament has now denied jurisdiction of the courts (i.e. Court of Session and High Courts) from granting anticipatory bail to those accused of such offences. The amendment (Code of Criminal Procedure Amendment Act, 2018) introduced Section 438(4). Clearly, therefore, where the Parliament wished to exclude or restrict the power of courts, under Seciton 438 of the Code, it did so in categorical terms. Parliament’s omission to restrict the right of citizens, accused of other offences from the right to seek anticipatory bail, necessarily leads one to assume that neither a blanket restriction can be read into by this court, nor can inflexible guidelines in the exercise of discretion, be insisted upon- that would amount to judicial legislation. [Paras 54-56][105B-D, 106A-D, 107-A-B-C]

2.5 The imposition of conditions under Section 438(2) with reference to Section 437(3) is enough safeguard for the authorities – including the police and other investigating agencies, who have to investigate into crimes and the possible complicity of the applicants who seek such relief. Taking each concern, i.e. the addition of more serious offences; presence of a large number of individuals or complainants; possibility of non-cooperation non-cooperation in the investigation or the requirement of the accused’s statement to aid the recovery of articles and incriminating articles in the course of statements made during investigations – it is noticeable, significantly, that each of these is contemplated as a condition and is invariably included in every order granting anticipatory bail. In the event of violation or alleged violation of these, the concerned authority is not remediless; recourse can be had to Section 438(2) read with Section 437(3). Any violation of these terms would attract a direction to arrest him. This power or direction to arrest is found in Section 437(5). However, that provision has no textual application to regular bail granted by the Court of Sessions or High Courts under Section 439 or directions not to arrest, i.e. order of anticipatory bail under Section 438. Secondly, Section 439(2) which is cast in wide terms, adequately covers situations when an accused does not cooperate during the investigation or threatens to, or intimidates witness[es] or tries to tamper with other evidence. There is nothing in the provisions of Section

438 which suggests that Parliament intended to restrict its operation, either as regards the time period, or in terms of the nature of the offences in respect of which, an applicant had to be denied bail, or which special considerations were to apply. [Paras 61, 62][109-D-H, 110A]

2.6 For the above reasons, the answer to the first question in the reference made to this bench is that there is no offence, per se, which stands excluded from the purview of Section 438 except the offences mentioned in Section 438 (4). In other words, anticipatory bail can be granted, having regard to all the circumstances, in respect of all offences. At the same time, if there are indications in any special law or statute, which exclude relief under Section 438 (1) they would have to be duly considered. There can be no inflexible time frame for which an order of anticipatory bail can continue. [Para 68][115G-H, 116A, B-C]

Re Question No. 2: Whether the life of an anticipatory bail should end at the time and stage when the accused is summoned by the court.

2.7 The observations about the width and amplitude of the power under Section 438, made in answer to the first question, are equally relevant here too. In the present context, further, the judgment and observations of this Court in its interpretation of Section 167(2) are telling. It was held in Gursharan Singh, the release by grant of bail of an accused under Section 167(2) amounts to “deemed bail”. This is borne out by Section 167(2) which states that anyone released on bail under its provision “shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter.” The judgment in Aslam Babalal Desai clarified that when an accused is released by operation of Section 167(2) and subsequently, a charge-sheet is filed, there is no question of the cancellation of his bail. In these circumstances, the mere fact that an accused is given relief under Section 438 at one stage, per se does not mean that upon the filing of a charge-sheet, he is necessarily to surrender or/and apply for regular bail. The analogy to ‘deemed bail’ under Section 167(2) with anticipatory bail leads this court to conclude that the mere subsequent event of the filing of a charge-sheet cannot compel the accused to surrender and seek regular bail. As a matter of fact, interestingly, if indeed, 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, because there would have been nothing in his behavior requiring such a step. In other words, an accused, who is granted anticipatory bail would continue to be at liberty when the charge sheet is filed, the natural implication is that there is no occasion for a direction by the Court that he be arrested and further that he had cooperated with the investigation. At the same time, however, at any time during the investigation were any occasion to arise calling for intervention of the court for infraction of any of the conditions imposed under Section 437(3) read with Section 438(2) or the violation of any other condition imposed in the given facts of a case, recourse can always be had under Section 439(2). [Para 70][117D-H, 118A-C]

2.8 Section 438 (3) states that when a person is granted anticipatory bail, is later arrested without warrant by an officer in charge of a police station “on such accusation”, and is willing to give bail, “he shall be released on bail; and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person he shall issue a bailable warrant in conformity with the direction of the Court under sub-section (1)”. The order granting anticipatory bail, is also- as noticed earlier, and in several previous decisions, a “direction” under this Section

438 “that in the event of such arrest” the applicant be released on bail. Therefore, when an accused in fact is granted bail, and the conditions outlined in Section 438 (2) are included as part of the direction “to release” him in the event of arrest, all the necessary conditions which he is obliged to follow exist. Section 438 (3) outlines the steps to be taken, in the event of arrest of one who has been granted relief under Section 438 (1). In the event of noncompliance with any or all conditions, imposed by the court, the concerned agency or the police, a direction can be sought from the court under Section 439 (2). [Para 71][118C-F]

2.9 Unless circumstances to the contrary: in the form of behaviour of the accused suggestive of his fleeing from justice, or evading the authority or jurisdiction of the court, or his intimidating witnesses, or trying to intimidate them, or violate any condition imposed while granting anticipatory bail, the law does not require the person to surrender to the court upon summons for trial being served on him. Subject to compliance with the conditions imposed, the anticipatory bail given to a person, can continue till end of the trial. [Para 76][123F-G, 124A]

2.10 Answers to the reference:

(1) Question No.1- The protection granted under Section

438 Cr.PC should not always or ordinarily be limited to a fixed period; it should inure in favour of the accused without any restriction as to time. Usual or standard conditions under Section

437 (3) read with Section 438 (2) should be imposed; if there are peculiar features in regard to any crime or offence (such as seriousness or gravity etc.), it is open to the court to impose any appropriate condition (including fixed nature of relief, or its being tied to an event or time bound) etc.

(2) Question No. 2- The life of an anticipatory bail does not end generally at the time and stage when the accused is summoned by the court, or after framing charges, but can also continue till the end of the trial. 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. [Para 77][124B-C, D-E]

2.11 In conclusion, it would be useful to remind oneself that the rights which the citizens cherish deeply, are fundamentalit is not the restrictions that are fundamental. Joseph Story, the great jurist and US Supreme Court judge, remarked that “personal security and private property rest entirely upon the wisdom, the stability, and the integrity of the courts of justice.” The history of our republic – and indeed, the freedom movement has shown how the likelihood of arbitrary arrest and indefinite detention and the lack of safeguards played an important role in rallying the people to demand independence.

Witness the Rowlatt Act, the nationwide protests against it, the Jallianwalla Bagh massacre and several other incidents, where the general public were exercising their right to protest but were brutally suppressed and eventually jailed for long. The specter of arbitrary and heavy-handed arrests: too often, to harass and humiliate citizens, and oftentimes, at the interest of powerful individuals (and not to further any meaningful investigation into offences) led to the enactment of Section 438. Despite several Law commission reports and recommendations of several committees and commissions, arbitrary and groundless arrests continue as a pervasive phenomenon. Parliament has not thought it appropriate to curtail the power or discretion of the courts, in granting pre-arrest or anticipatory bail, especially regarding the duration, or till charge sheet is filed, or in serious crimes. Therefore, it would not be in the larger interests of society if the court, by judicial interpretation, limits the exercise of that power: the danger of such an exercise would be that in fractions, little by little, the discretion, advisedly kept wide, would shrink to a very narrow and unrecognizably tiny portion, thus frustrating the objective behind the provision, which has stood the test of time, these 46 years. [Paras 79, 80][127A-F]

Shri Gurbaksh Singh Sibbia and others v. State of Punjab (1980) 2 SCC 565 : [1980] 3 SCR 383; Chandra Mohan v. State of Uttar Pradesh & Ors [1967] 1 SCR 77; Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd. & Ors. (1987) 1 SCC 424 : [1987] 2 SCR 1; Directorate of Enforcement v Deepak Mahajan (1994) 3 SCC 440 : [1994]

1 SCR 445; State of Haryana & Ors. v. Sampuran Singh & Ors. (1975) 2 SCC 810 : [1976] 1 SCR 626; Dolat Ram v State of Haryana [1995] 1 SCC 349 : [1994] 6 Suppl. SCR

69 – relied on.

Salauddin Abdulsamad Shaikh v. State of Maharashtra (1996)

1 SCC 667 : [1995] 6 Suppl. SCR 556; K.L. Verma v. State & Anr (1998) 9 SCC 348; Sunita Devi v. State of Bihar & Anr (2005) 1 SCC 608 : [2004] 6 Suppl. SCR 707; Adri Dharan Das v. State of West Bengal (2005) 4 SCC 303 : [2005] 2 SCR 188; Nirmal Jeet Kaur v. State of M.P. & Anr (2004) 7 SCC 558 : [2004] 3 Suppl. SCR 1006; HDFC Bank Limited v. J.J. Mannan (2010) 1 SCC 679 : [2009] 16 SCR 590; Satpal Singh v. the State of Punjab (2018) SCC Online (SC 415); Naresh Kumar Yadav v Ravindra Kumar (2008) 1 SCC

632 : [2007] 11 SCR 615; Siddharam Satlingappa Mhetre v. State of Maharashtra & Ors (2011) 1 SCC 694 : [2010] 15 SCR 201; Bhadresh Bipinbhai Sheth v. State of Gujarat & Anr (2016) 1 SCC 152 : [2015] 10 SCR 398 – overruled. Dataram Singh v. State of U.P (2018) 3 SCC 22; Gurcharan Singh v State (Delhi Admn) (1978) 1 SCC 118 : [1978] 2 SCR 358; Aslam Babalal Desai v State of Maharastra (1992)

4 SCC 272 : [1992] 1 Suppl. SCR 545; Joginder Kumar v. State of U.P. (1994) 4 SCC 260; Lalitha Kumari v. State of U.P (2014) 2 SCC 1 : [2013] 14 SCR 713; Arnesh Kumar v. State of Bihar (2014) 8 SCC 273 : [2014] 8 SCR 128; M.C. Abraham v. State of Maharastra (2003) 2 SCC 649 : [2002]

5 Suppl. SCR 677; Pradeep Ram v. State of Jharkhand (2019) SCC Online (SC) 825; Mithabhai Pashabhai Patel v. State of Gujarat (2009) 6 SCC 332 : [2009] 7 SCR 1126; State of M.P. & Anr. v Ram Kishna Balothia & Anr. (1995) Supp (3) SCC 419 : [1995] 2 Suppl. SCR 590; Savitri Agarwal v. State of Maharashtra & Anr (2009) 8 SCC 325 : [2009] 10 SCR 978; State of A.P. v. Bimal Krishna Kundu (1997) 8 SCC 104: [1997] 4 Suppl. SCR 412; Muraleedharan v. State of Kerala (2001) 4 SCC 638 : [2001] 3 SCR 57; Jai Prakash Singh v State of Bihar (2012) 4 SCC 379 : [2012] 5 SCR 1; Gudikanti Narasimhulu v. Public Prosecutor (1978) 1 SCC 240 : [1978]

2 SCR 371; P. Chidambaram v. Directorate of Enforcement (2019) 9 SCC 24; State of U.P. v Deoman Upadhyaya [1961]

1 SCR 14; Vallabhdas Liladhar v Asst. Collector of Customs [1965] 3 SCR 854; Hazari Lal Das v State of West Bengal & Anr (2009) 10 SCC 652 : [2009] 14 SCR 195; Sudhir v. Maharastra 2016 (1) SCC 146 : [2015] 12 SCR 387; Arvind Tiwary v. State of Bihar (2018) 8 SCC 475; Mahant Chand Yogi v. State of Haryana (2003) 1 SCC 236; Padmakar Tukaam Bhavnagare v. State of Maharastra (2012) 13 SCC 720; X v. State of Telangana, (2018) 16 SCC 511 : [2018] 4 SCR 466; Prakash Kadam & Etc. Etc. v Ramprasad Vishwanath Gupta & Anr (2011) 6 SCC 189 : [2011] 6 SCR 800; State through C.B.I. v. Amarmani Tripathi (2005) 8 SCC

21 – referred to.

Report of the Committee on Reforms of the Criminal Justice System by Dr. Justice V.S. Malimath; Reports of the Law Commission of India- 41st, 48th, 154th, 177th, 203rd and 268th – referred to.

Halsbury’s Laws of England(Halsbury’s Laws of England 4th Edn., Vol. 11, para 166); Codex Justinianus (or ‘Code Jus’) in Book 9 titled Title 3(2); Wharton’s Law Lexicon – referred to.

PER ARUN MISHRA, INDIRA BANERJEE AND VINEET

SARAN, JJ. [CONCURRING]

3. The conclusions in Shri Gurbaksh Singh Sibbia and others v. State of Punjab 1980 (2) SCC 565 needs reiteration and further that the restrictive manner in which Section 438 of the Cr.PC has been interpreted in Salauddin Abdulsamad Shaikh v. State of Maharashtra 1996 (1) SCC 667 is incorrect. Therefore, it is agreed that Salauddin and other cases which have followed it needs to be overruled. Similarly, the wide interpretation in Siddharam Satlingappa Mhetre v. State of Maharashtra & Ors. 2011 (1) SCC 694, i.e. that no conditions can be imposed while granting an order of anticipatory bail, is incorrect. Mhetre to that extent and other judgments which have followed it are accordingly overruled.[128A-C]

Shri Gurbaksh Singh Sibbia and others v. State of Punjab (1980) 2 SCC 565 : [1980] 3 SCR 383 – relied on.

Salauddin Abdulsamad Shaikh v. State of Maharashtra (1996) 1 SCC 667 : [1995] 6 Suppl. SCR 556;

Siddharam Satlingappa Mhetre v. State of Maharashtra (2011) 1 SCC 694 : [2010] 15 SCR 201 – overruled. PER ARUN MISHRA, INDIRA BANERJEE, VINEET

SARAN, M.R. SHAH, S. RAVINDRA BHAT, JJ. [PER

CURIAM]

FINAL CONCLUSIONS:

4. Answers to the reference:

(1) Question No.1- The protection granted to a person under Section 438 Cr. PC should not invariably be limited to a fixed period; it should inure in favour of the accused without any restriction on time. Normal conditions under Section 437 (3) read with Section 438 (2) should be imposed; if there are specific facts or features in regard to any offence, it is open for the court to impose any appropriate condition (including fixed nature of relief, or its being tied to an event) etc.

(2) Second question- The life or duration of an anticipatory bail order does not end normally at the time and stage when the accused is summoned by the court, or when charges are framed, but can continue till the end of the trial. Again, 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. The following need to be kept in mind by courts, dealing with applications under Section 438, Cr. PC:

(1) Consistent with the judgment in Shri Gurbaksh Singh Sibbia and others v. State of Punjab, when a person complains of apprehension of arrest and approaches for order, the application should be based on concrete facts (and not vague or general allegations) relatable to one or other specific offence. The application seeking anticipatory bail should contain bare essential facts relating to the offence, and why the applicant reasonably apprehends arrest, as well as his side of the story. These are essential for the court which should consider his application, to evaluate the threat or apprehension, its gravity or seriousness and the appropriateness of any condition that may have to be imposed. It is not essential that an application should be moved only after an FIR is filed; it can be moved earlier, so long as the facts are clear and there is reasonable basis for apprehending arrest.

(2) It may be advisable for the court, which is approached with an application under Section 438, depending on the seriousness of the threat (of arrest) to issue notice to the public prosecutor and obtain facts, even while granting limited interim anticipatory bail.

(3) Nothing in Section 438 Cr. PC, compels or obliges courts to impose conditions limiting relief in terms of time, or upon filing of FIR, or recording of statement of any witness, by the police, during investigation or inquiry, etc. While considering an application (for grant of anticipatory bail) the court has to consider the nature of the offence, the role of the person, the likelihood of his influencing the course of investigation, or tampering with evidence (including intimidating witnesses), likelihood of fleeing justice (such as leaving the country), etc. The courts would be justified – and ought to impose conditions spelt out in Section

437 (3), Cr. PC [by virtue of Section 438 (2) ]. The need to impose other restrictive conditions, would have to be judged on a case by case basis, and depending upon the materials produced by the state or the investigating agency. Such special or other restrictive conditions may be imposed if the case or cases warrant, but should not be imposed in a routine manner, in all cases. Likewise, conditions which limit the grant of anticipatory bail may be granted, if they are required in the facts of any case or cases; however, such limiting conditions may not be invariably imposed.

(4) Courts ought to be generally guided by considerations such as the nature and gravity of the offences, the role attributed to the applicant, and the facts of the case, while considering whether to grant anticipatory bail, or refuse it. Whether to grant or not is a matter of discretion; equally whether and if so, what kind of special conditions are to be imposed (or not imposed) are dependent on facts of the case, and subject to the discretion of the court.

(5) Anticipatory bail granted can, depending on the conduct and behavior of the accused, continue after filing of the charge sheet till end of trial.

(6) An order of anticipatory bail should not be “blanket” in the sense that it should not enable the accused to commit further offences and claim relief of indefinite protection from arrest. It should be confined to the offence or incident, for which apprehension of arrest is sought, in relation to a specific incident. It cannot operate in respect of a future incident that involves commission of an offence.

(7) An order of anticipatory bail does not in any manner limit or restrict the rights or duties of the police or investigating agency, to investigate into the charges against the person who seeks and is granted pre-arrest bail.

(8) The observations in Sibbia regarding “limited custody” or “deemed custody” to facilitate the requirements of the investigative authority, would be sufficient for the purpose of fulfilling the provisions of Section 27, in the event of recovery of an article, or discovery of a fact, which is relatable to a statement made during such event (i.e deemed custody). In such event, there is no question (or necessity) of asking the accused to separately surrender and seek regular bail. Sibbia had observed that “if and when the occasion arises, it may be possible for the prosecution to claim the benefit of Section 27 of the Evidence Act in regard to a discovery of facts made in pursuance of information supplied by a person released on bail by invoking the principle stated by this Court in State of U.P. v Deoman Upadhyaya.”

(9) It is open to the police or the investigating agency to move the court concerned, which grants anticipatory bail, for a direction under Section 439 (2) to arrest the accused, in the event of violation of any term, such as absconding, non-cooperating during investigation, evasion, intimidation or inducement to witnesses with a view to influence outcome of the investigation or trial, etc.

(10) The court referred to in para (9) above is the court which grants anticipatory bail, in the first instance, according to prevailing authorities.

(11) The correctness of an order granting bail, can be considered by the appellate or superior court at the behest of the state or investigating agency, and set aside on the ground that the court granting it did not consider material facts or crucial circumstances. This does not amount to “cancellation” in terms of Section 439 (2), Cr. PC.

(12) The observations in Siddharam Satlingappa Mhetre v. State of Maharashtra & Ors (and other similar judgments) that no restrictive conditions at all can be imposed, while granting anticipatory bail are hereby overruled. Likewise, the decision in Salauddin Abdulsamad Shaikh v. State of Maharashtra and subsequent decisions (including K.L. Verma v. State & Anr; Sunita Devi v. State of Bihar & Anr; Adri Dharan Das v. State of West Bengal; Nirmal Jeet Kaur v. State of M.P. & Anr; HDFC Bank Limited v. J.J. Mannan; Satpal Singh v. the State of Punjab and Naresh Kumar Yadav v Ravindra Kumar) which lay down such restrictive conditions, or terms limiting the grant of anticipatory bail, to a period of time are hereby overruled. [Para 1][128-E-H; 129-A-H; 130-A-H; 131-A-D]

Siddharam Satlingappa Mhetre v. State of Maharashtra (2011) 1 SCC 694 : [2010] 15 SCR 201; Salauddin Abdulsamad Shaikh v. State of Maharashtra (1996) 1 SCC 667 : [1995] 6 Suppl. SCR 556; K.L. Verma v. State and another (1998) 9 SCC 348; Sunita Devi v. State of Bihar (2005) 1 SCC 608 : [2004] 6 Suppl. SCR 707; Adri Dharan Das v. State of West Bengal (2005)

(4) SCC 303 : [2005] 2 SCR 188; Nirmal Jeet Kaur v. State of M.P. (2004) 7 SCC 558 : [2004] 3 Suppl. SCR 1006; HDFC Bank Limited v. J.J. Mannan (2010) 1 SCC

679 : [2009] 16 SCR 590; Satpal Singh v. State of Punjab (2018) 4 SCC 303 : [2018] 3 SCR 739; Naresh Kumar Yadav v Ravindra Kumar (2008) 1 SCC 632 : [2007] 11 SCR 615 – overruled.

Shri Gurbaksh Singh Sibbia and others v. State of Punjab (1980) 2 SCC 565 : [1980] 3 SCR 383 – relied on.

Prakash Kadam & Etc. Etc. vs Ramprasad Vishwanath Gupta & Anr (2011) 6 SCC 189 : [2011] 6 SCR 800; Jai Prakash Singh v State of Bihar (2012) 4 SCC 325 : [2012] 5 SCR 1; State through C.B.I. v. Amarmani Tripathi (2005) 8 SCC 21 – referred to.