Anticipatory Bail

Source: The Hitavada      Date: 21 May 2018 10:42:22


 

 

 

 

 

 

 

 

 

 

Anticipatory bail is granted in anticipation of arrest in non-bailable cases, but that does not mean that 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.


THROUGH an order passed in the case - Sushila Aggarwal and Others v. State (NCT of Delhi) and Another, on May 15, 2018, a 3-judge bench of the Supreme Court, consisting of Justice Kurian Joseph, Justice Mohan M. Shantanagoudar and Justice Navin Sinha, has requested the Chief Justice to refer the two conflicting views on anticipatory bail for reconciliation to a larger bench.


The divergent views are on the issue, whether an anticipatory bail should be for a limited period of time. The line of judgements that anticipatory bail should not be for a limited period places its reliance on the Constitution bench decision of the apex court in the case - Shri Gurbaksh Singh Sibbia and Others v. State of Punjab - (1980) 2 SCC 565. Through the judgement of the case - Siddharam Satlingappa Mhetre v. State of Maharashtra and Others -(2011) 1 SCC 694, which is a very detailed judgement by a 2-judge bench, on the scope and object of an anticipatory bail.


In the Mhetre case, Supreme Court took the view that the Constitution bench has held that anticipatory bail granted by the court should ordinarily continue till the trial of the case. The court has observed in paragraph 95 of the judgement that “The order granting anticipatory bail for a limited duration and thereafter directing the accused to surrender and apply for a regular bail is contrary to the legislative intention and judgement of the Constitution bench in Sibbia case”.


The decision in the Mhetre case has been recently followed in the case - Bhadresh Bipinbhai Sheth v. State of Gujarat and Another - (2016) 1 SCC 152. The other line of judgements is that orders of anticipatory bail should be of a limited duration. The judgement in the case - Salauddin Abdulsamand Shaikh v. State of Maharashtra - (1996) 1 SCC 667, is one of the earlier decisions of a 3-judge bench. True, there is no reference to the decision of the Constitution bench in the Sibbia case. However, discussing the concept of anticipatory bail the Supreme Court has taken the view that :


“2. Under section 438 of the Code of Criminal Procedure when any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence , the High Court or the court of Session may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail and in passing that order , it may include such conditions having regard to the facts of the particular case, as it may deem appropriate. “Anticipatory bail is granted in anticipation of arrest in non-bailable cases, but that does not mean that 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 HC is granting the 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 chargesheet is submitted.


“3. It should be realised that an order of anticipatory bail could even be obtained in cases of a serious nature as for example murder and, therefore, it is essential that the duration of that order should be limited and ordinarily the court granting anticipatory bail should not substitute itself for the original court which is expected to deal with the offence. It is that court which has then to consider whether, having regard to the material placed before it the accused person is entitled to bail.” This view has been followed in the cases - K L Verma v. State and Another - (1998) 9 SCC 348, Sunita Devi v. State of Bihar and Another - (2005) 1 SCC 608 and Adri Dharan Das v. State of West Bengal - (2005) 4 SCC 303. In the K L Verma case, after referring to Salauddin case, the Supreme Court has held: “to put it differently, anticipatory bail may be granted for a duration which may extend to the date on which the bail application is disposed of or even a few days thereafter to enable the accused persons to move the higher court, if they so desire. This decision was not intended to convey that as soon as the accused persons are produced before the regular court the anticipatory bail ends even if the court is yet to decide the question of bail on merits. The decision in the Salauddin case has to be so understood”.


In the decision of the case - HDFC Bank Ltd. v. J J Mannan - (2010) 1 SCC 679, the apex court has referred to a contention based on the Constitution bench decision in Sibbia’s case and yet it has taken the view that the protection under section 438 is only till the investigation is completed and chargesheet is filed.


In the decision of the case - Satpal Singh v. State of Punjab - (2018) SCC online Supreme Court 415, it has been held that the satisfaction of the court for granting protection under section 438 Cr.P.C. is different from the one under section 439 Cr.P.C. while considering regular bail.


Placing reliance on Sibbia decision, the two-judge bench in the Mhetre case has taken the stand that the decisions in the Salauddin, K L Verma, Adri Dharan Das and Sunita Devi cases are per incuriam. According to the court, the life of the order under section 438 Cr.P.C. granting bail cannot be curtailed. Perhaps ratio of the decision in the Sibbia case was not brought to the notice of the judges, who had decided the cases of Salauddin, K L Verma, Adri Dharan Das and Sunita Devi. The power under section 438 is somewhat extraordinary in character and it (should be exercised) only in exceptional cases.


The court considered this approach contrary to the legislative intention and the Constitution bench’s decision in the Sibbia case. The court would not be justified in rewriting section 438 Cr.P.C. The judgements in these cases have clearly ignored the decision in the Sibbia case, which has comprehensively dealt with all the facets of anticipatory bail enumerated under section 438 Cr.P.C. Consequently, the judgements mentioned in paras 124 and 125 of this judgement are per incuriam. The normal rule should be not to limit the operation of the order in relation to a period of time.


In the light of the conflicting views of the different benches of varying strength, the court felt that the legal position needs to be authoritatively settled in clear and unambiguous terms. Therefore, the court formulated these two questions for reference to a larger bench:

 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 an anticipatory bail should end at the time and stage when the accused is summoned by the court.