Judgments

SUSHILA AGGRAWAL VS STATE ( NCT OF DELHI ) : CASE SUMMARY

The Constitution Bench of the Supreme Court consisting of five judges  in Sushila Aggrawal  & Ors Vs. State (NCT of Delhi) & another (Special Leave Petition (Criminal ) No. 7281 – 7282/2017 answered the reference in light of different opinions expressed by various benches of the Supreme Court on following issues :

  • Whether the protection granted to a person under Section 438 Cr. P.C. should be limited to a fixed period so as to enable the person to surrender before the Trail 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 ?

Justice M.R. Shah and Justice Ravindra Bhat delivered separate but concurring judgments. Justice   Arun Mishra, Justice Indira Bannerjee and Justice Vineet Saran concurred.

JUDGMENT  OF JUSTICE M R SHAH

Justice M R Shah  noted that an application for anticipatory bail can be moved by an accused before a FIR is filed or at a stage when FIR has been registered and chargesheet has not been filed or when investigation has been concluded and chargesheet has been filed. Once there is an order of pre-arrest bail/anticipatory bail, when an accused  is arrested, he has to be released on bail. The only difference between the pre-arrest bail order under Section 438 and the bail order under Section 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 Section 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 438  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.

The Supreme Court in Gurbaksh Singh Sibbia and others v. State of Punjab (1980) 2 SCC 565 has held that while granting anticipatory bail the normal rule should be not to limit the operation of the order in relation to a period of time. The Supreme Court in Salauddin Abdulsamad Shaikh v. State of Maharashtra (1996) 1 SCC 667 held a contrary view wherein it was held that the order of “anticipatory bail “ has to be necessarily limit in time frame.  It was held by Justice M. R. Shah that  view taken in  Salauddin Abdulsamad Shaikh  is not a good law and is contrary to judgment of Constitution Bench in Gurbaksha Singh. Justice M. R. Shah held as under:

7.5. Thus, considering the observations made by the Constitution Bench in this Court in the case of Gurbaksh Singh Sibbia (Supra ) , 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 Section 437 or 439 of the Code within a reasonable short period after the filing of the FIR. The Constitution Bench has 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. We are of the opinion that the conditions can be imposed by the concerned court wile granting pre-arrest bail order 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 complete and the charge sheet is filed. However, as observed hereinabove, the normal rule should be not to limit the order in relation to a period of  time.

JUDGMENT OF JUSTICE S. RAVINDRA BHAT

Justice Ravindra Bhat while answering reference on the first issue noted that there are two different line of opinions have emerged after Gurbaksh Singh Sibbia judgment. The Supreme Court in   Salauddin Abdulsamad Shaikh v. State of Maharashtra (1996) 1 SCC 667, K . L Verma Vs. State and another  (1998) 9 SCC 348, Nirmal Jeet Kaur v. State of M.P. (2004) 7 SCC 558;  HDFC Bank Limited v. J. J. Manan (2010) 1 (SCC 679 and Satpal Singh V. State of Punjab (2018 )4 SCC 303  has held that Court of Session or the High Court as the case may be are obliged to grant anticipatory bail for limited jurisdiction or to await the course of investigation so the normal court are not bypassed, or that in economic offences anticipatory bail should not be granted.  On the other hand the Supreme Court in  Siddaram Satlingappa Mhetre v  State of Maharastra (2011) 1 SCC 694  has held that the courts should not impose restrictions on the ambit and scope of section 438 Cr.P.C. which are not envisaged by the Legislature. The court cannot rewrite the provision of the statute in the garb of interpreting it. The Supreme Court endorsed the view of Sibbia and held as under:

Regarding question No. 1, it is held that 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.

Justice Ravindra Bhat while answering the reference on the second issue held as under:

The second question referred to this court is answered, by holding that 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.

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Mukesh Kumar Suman is an advocate and legal author based at Delhi. He regularly appears before various Judicial Forums including NCLT, NCLAT, High Courts and the Supreme Court. He can be approached at mukesh_suman@outlook.com or +91 9717864570.

Mukesh Kumar Suman

Mukesh Kumar Suman

Mukesh Kumar Suman is an advocate based at Delhi. He has rich experience in civil, criminal, commercial, arbitration and corporate insolvency matters. He regularly appears before District Courts, NCLT, NCLAT, High Court and the Supreme Court. He can be approached at mukesh_suman@outlook.com or +91 9717864570.

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