The apex court in a recent decision said that anticipatory bail once granted cannot have an expiry date until specified by the court

The Supreme Court in its recent decision in the Sushila Aggarwal and Others vs. State (NCT of Delhi) case declared that anticipatory bail once granted to an accused under Section 438 of the Criminal Procedure Code (CrPC) cannot have an expiry date until explicitly specified by the court. This verdict is indeed a cornerstone in reaffirming the right to life and liberty of citizens as guaranteed by our Constitution. Authored by Justice MR Shah and Justice SR Bhat, this verdict has resolved the controversies created mainly by two judgments viz., Salauddin Abdulsamad Shaikh and Siddharam Satlingappa Mhetre, with both of them taking completely opposite views. Salauddin narrowed the scope and jurisdiction of the courts under Section 438 by mandating imposition of strict conditions while granting anticipatory bail. However, Mhetre ruled that grant of bail for a limited period or with any such conditions is contrary to the legislative intention and settled tenets of criminal law. These seemingly incongruent strands of reasoning, stemming from the two distinct lines of precedents and spawning divergent approaches to the scope of jurisdiction under Section 438, impelled a reference to the larger Bench. Before going into the nuances of this verdict, we must understand the meaning and definition of anticipatory bail and its governing parameters. The CrPC, 1973 does not define anticipatory bail and rather provides only the mechanism for availing it through Section 438. However, the apex court defined anticipatory bail as “bail in anticipation of arrest” in the case of Balchand Jain for the very first time. Further, it was also laid down that the power to grant anticipatory bail rests only with the Sessions Court and the High Court. Here, it is interesting to note that the old code of criminal procedure, 1898 did not contain any provision for anticipatory bail and it was adopted only after the recommendations from the 41st Report of the Law Commission of India. Now coming back to the recent judgment in Sushila, the Constitution Bench decided upon a bunch of controversies, cleared some major confusions and passed some landmark orders, which are as follows:

Reiterated the law laid down by the Constitution Bench in Gurbaksh Singh Sibbia and others vs State of Punjab (Sibbia case): There is nothing in the CrPC to indicate that the grant of pre-arrest/anticipatory bail should be time-bound. However, the court concerned has the discretion to impose conditions for the grant of anticipatory bail, including a limited duration of protection, on a case-to-case basis, depending on the stage at which the application for anticipatory bail is moved. As a rule, there should be no time-limit imposed in granting pre-arrest protection. The duration of an anticipatory bail order does not normally end when the accused is summoned by the court. However, it is up to the court to impose additional restrictions if there are peculiar circumstances warranting the same.

The life of anticipatory bail does not end when the accused is summoned by court: The court found that ordinarily, the protection given through anticipatory bail would not automatically come to an end if the person is summoned as an accused in the case by a court. However, if there are special or peculiar circumstances necessitating the same, the court has the power to limit the tenure of anticipatory bail.

Time-limits may be imposed by courts but not as a rule: All the same, the court further noted as per the Sibbia case, the competent court still retains the discretion to impose time-limits or other conditions, on a case-to-case basis, if required. However, it added that such limits should not be ordinarily imposed. The Supreme Court, therefore, has answered the first issue in the following terms, “The protection granted to a person under Section 438 of the CrPC 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 condition...”

Guidelines on grant of anticipatory bail: Before parting with the matter, the Bench also issued some more guidelines on the grant of anticipatory bail. It ruled that the anticipatory bail applications should be based on concrete facts, not vague or general allegations, relatable to a specific offence. It is advisable that the court, depending on the seriousness of the threat of arrest, issue notice to the public prosecutor to obtain facts. Nothing in the CrPC compels or obliges a court to impose conditions limiting the grant of anticipatory bail. The need to impose restrictions during grant of anticipatory bail would have to be judged on a case-to-case basis. 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. The gravity of the offence and the applicant’s role should guide the court in deciding whether or not to grant anticipatory bail in its discretion. Anticipatory bail granted can (depending on the conduct of the accused) continue after filing of the chargesheet till end of trial.

(Khandelwal and Naru are legal researchers to Supreme Court’s Justice MR Shah and Justice NV Ramana)