SUSHILA AGGARWAL AND OTHERS versus STATE (NCT OF DELHI) AND ANOTHER
[2020] 2 S.C.R. 1, Supreme Court of India, 2020
Outcome: Directions issued
Segment: Facts
A
B
C
D
E
F
G
H
1
SUSHILA AGGARWAL AND OTHERS
v.
STATE (NCT OF DELHI) AND ANOTHER
(Special Leave Petition (Criminal) Nos. 7281-7282 of 2017)
JANUARY 29, 2020
[ARUN MISHRA, INDIRA BANERJEE, VINEET SARAN,
M. R. SHAH AND S. RAVINDRA BHAT, JJ.]
Code of Criminal Procedure, 1973 – ss.437, 438, 439 and
167(2) – Order u/s.438 granting anticipatory bail – Life and
operation of – Conflicting views of different Benches of varying
strength as to whether the protection granted u/s.438 should be
limited to a fixed period so as to enable the person to surrender
before 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 – Reference to larger Bench – Held: (Per
Curiam) Protection granted u/s.438 should not invariably be limited
to a fixed period; it should inure in favour of the accused without
any restriction on time – Normal conditions u/s.437(3) r/w s.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. – Further, 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 – Observations in Siddharam
Satlingappa Mhetre case (and other similar judgments) that no
restrictive conditions at all can be imposed, while granting
anticipatory bail are overruled – Likewise, the decision in Salauddin
Abdulsamad Shaikh case and subsequent decisions which lay down
such restrictive conditions, or terms limiting the grant of anticipatory
bail, to a period of time are overruled – Guiding principles
enumerated for Courts to follow while dealing with applications
u/s.438 – Criminal Procedure Code (Amendment) Act, 2005 – Code
of Criminal Procedure Amendment Act, 2018 – Penal Code, 1860 –
   [2020] 2 S.C.R. 1
1
A
B
C
D
E
F
G
H
2
SUPREME COURT REPORTS
[2020] 2 S.C.R.
ss.376(3), 376AB, 376DA, 376DB – Constitution of India – Art.21
– Evidence Act, 1872 – s.27 – Interpretation of Statutes.
Answering the referred questions, the Court
HELD: 1.1 PER M. R. SHAH, J.
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][33E-
H, 34A-D]
A
B
C
D
E
F
G
H
3
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.
SUSHILA AGGARWAL v. STATE (NCT OF DELHI)
A
B
C
D
E
F
G
H
4
SUPREME COURT REPORTS
[2020] 2 S.C.R.
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,
A
B
C
D
E
F
G
H
5
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
SUSHILA AGGARWAL v. STATE (NCT OF DELHI)
A
B
C
D
E
F
G
H
6
SUPREME COURT REPORTS
[2020] 2 S.C.R.
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
A
B
C
D
E
F
G
H
7
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]
SUSHILA AGGARWAL v. STATE (NCT OF DELHI)
A
B
C
D
E
F
G
H
8
SUPREME COURT REPORTS
[2020] 2 S.C.R.
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.
A
B
C
D
E
F
G
H
9
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)
SUSHILA AGGARWAL v. STATE (NCT OF DELHI)
A
B
C
D
E
F
G
H
10
SUPREME COURT REPORTS
[2020] 2 S.C.R.
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 non-
compliance 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
A
B
C
D
E
F
G
H
11
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 fundamental-
it 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:
SUSHILA AGGARWAL v. STATE (NCT OF DELHI)
A
B
C
D
E
F
G
H
12
SUPREME COURT REPORTS
[2020] 2 S.C.R.
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]
A
B
C
D
E
F
G
H
13
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
SUSHILA AGGARWAL v. STATE (NCT OF DELHI)
A
B
C
D
E
F
G
H
14
SUPREME COURT REPORTS
[2020] 2 S.C.R.
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.
A
B
C
D
E
F
G
H
15
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
SUSHILA AGGARWAL v. STATE (NCT OF DELHI)
A
B
C
D
E
F
G
H
16
SUPREME COURT REPORTS
[2020] 2 S.C.R.
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.”
A
B
C
D
E
F
G
H
17
(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.
SUSHILA AGGARWAL v. STATE (NCT OF DELHI)
A
B
C
D
E
F
G
H
18
SUPREME COURT REPORTS
[2020] 2 S.C.R.
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.
Case Law Reference
IN THE JUDGMENT OF M.R. SHAH, J.:
[1980] 3 SCR 383
relied on
Para 1
[2010] 15 SCR 201
held not correct law
Para 1
[2015] 10 SCR 398
referred to
Para 1
[1995] 6 Suppl. SCR 556
held not good law
Para 1
(1998) 9 SCC 348
referred to
Para 1
[2004] 6 Suppl. SCR 707
referred to
Para 1
[2004] 3 Suppl. SCR 1006 referred to
Para 1
[2009] 16 SCR 590
referred to
Para 1
[2018] 3 SCR 739
referred to
Para 1
[1977] 2 SCR 52
referred to
Para 2
(1994) 4 SCC 260
referred to
Para 3.1
[2013] 14 SCR 713
referred to
Para 3.1
[2014] 8 SCR 128
referred to
Para 3.1
[2002] 5 Suppl. SCR 677
referred to
Para 3.1
[2001] 2 SCR 878
referred to
Para 5.1
A
B
C
D
E
F
G
H
19
IN THE JUDGMENT OF S. RAVINDRA BHAT, J.:
[1980] 3 SCR 383
relied on
Para 3
[1995] 6 Suppl. SCR 556
overruled
Para 4
(1998) 9 SCC 348
overruled
Para 4
[2004] 6 Suppl. SCR 707
overruled
Para 4
[2005] 2 SCR 188
overruled
Para 4
[2004] 3 Suppl. SCR 1006 overruled
Para 4
[2009] 16 SCR 590
overruled
Para 4
[2007] 11 SCR 615
overruled
Para 4
[2010] 15 SCR 201
overruled
Para 4
[2015] 10 SCR 398
overruled
Para 4
(2018) 3 SCC 22
referred to
Para 17
[1978] 2 SCR 358
referred to
Para 20
[1992] 1 Suppl. SCR 545
referred to
Para 21
(1994) 4 SCC 260
referred to
Para 24
[2013] 14 SCR 713
referred to
Para 24
[2014] 8 SCR 128
referred to
Para 24
[2002] 5 Suppl. SCR 677
referred to
Para 24
[2009] 7 SCR 1126
referred to
Para 27
[1995] 2 Suppl. SCR 590
referred to
Para 34
[2009] 10 SCR 978
referred to
Para 35
[1997] 4 Suppl. SCR 412
referred to
Para 36
[2001] 3 SCR 57
referred to
Para 36
[2012] 5 SCR 1
referred to
Para 47
[1978] 2 SCR 371
referred to
Para 48
(2019) 9 SCC 24
referred to
Para 53
[1967] 1 SCR 77
relied on
Para 62
[1987] 2 SCR 1
relied on
Para 62
SUSHILA AGGARWAL v. STATE (NCT OF DELHI)
A
B
C
D
E
F
G
H
20
SUPREME COURT REPORTS
[2020] 2 S.C.R.
[1994] 1 SCR 445
relied on
Para 63
[1976] 1 SCR 626
relied on
Para 64
[1961] 1 SCR 14
referred to
Para 66
[1965] 3 SCR 854
referred to
Para 66
[1994] 6 Suppl. SCR 69
relied on
Para 73
[2009] 14 SCR 195
referred to
Para 74
[2015] 10 SCR 398
referred to
Para 74
[2015] 12 SCR 387
referred to
Para 75
(2018) 8 SCC 475
referred to
Para 75
(2003) 1 SCC 236
referred to
Para 75
(2012) 13 SCC 720
referred to
Para 75
[2018] 4 SCR 466
referred to
Para 75
[2011] 6 SCR 800
referred to
Para 78
(2005) 8 SCC 21
referred to
Para 78
IN THE JUDGMENT OF ARUN MISHRA, INDIRA BANERJEE
AND VINEET SARAN, JJ.
[1980] 3 SCR 383
relied on
Para 3
[1995] 6 Suppl. SCR 556
overruled
Para 4
[2010] 15 SCR 201
overruled
Para 4
IN THE JUDGMENT OF PER CURIAM:
[2011] 6 SCR 800
referred to
Para 1(11)
[2012] 5 SCR 1
referred to
Para 1(11)
(2005) 8 SCC 21
referred to
Para 1(11)
[1980] 3 SCR 383
relied on
Para 1 (11)
[2010] 15 SCR 201
overruled
Para 1(12)
[1995] (6) Suppl. SCR 556 overruled
Para 1(12)
A
B
C
D
E
F
G
H
21
(1998) 9 SCC 348
overruled
Para 1(12)
[2004] 6 Suppl. SCR 707
overruled
Para 1(12)
[2005] 2 SCR 188
overruled
Para 1(12)
[2004] (3) Suppl. SCR 1006 overruled
Para 1(12)
[2009] 16 SCR 590
overruled
Para 1(12)
[2018] 3 SCR 739
overruled
Para 1(12)
[2007] 11 SCR 615
overruled
Para 1(12)
CRIMINAL APPELLATE JURISDICTION: Special Leave
Petition (Criminal) Nos. 7281-7282 of 2017.
From the Judgment and Order dated 25.07.2017 and 02.08.2017
of the High Court of Delhi at New Delhi in Bail Application No. 1415 of
2017.
Tushar Mehta, SG, Aman Lekhi, ASG, Vikramjit Banerjee, ASG,
V.Shekhar, Ms. Aishwarya Bhati, Sr. Advs., Abhay Kumar, Vineet Kumar
Singh, Saurabh Mishra, Ms. Vanshaja Saluja, Sanjay Kumar Tyagi, Pranay
Ranjan, Kanu Agrawal, Ayush Anand, Shantanu Sharma, B. V. Balaram
Das, Diyansh Rai, C. S. N. Mohan Rao, Lokesh Kumar Sharma, Nipun
Saxena, Ms. Sukanya Singh, Kartikey Kanojiya, Vivek Jain, Ms. Suchitra
Kumbhat, Ms. Sasha Maria Paul, Mehul M. Gupta, Dhananjay Ray,
Ms. Vrinda Bhandari, Apoorv Singhal, Rajeev Dubey, A. Mishra, K.
Mishra, Advs. for the appearing parties.
Harin P. Raval, K.V.Vishwanathan, Sr. Advs. (A.Cs.)
The Judgments of the Court were delivered by
M. R. SHAH, J.
1. In the light of the conflicting views of the different Benches of
varying strength, more particularly in the cases of Shri Gurbaksh Singh
Sibbia and others v. State of Punjab (1980) 2 SCC 565; Siddharam
Satlingappa Mhetre v. State of Maharashtra (2011) 1 SCC 694;
Bhadresh
Bipinbhai Sheth v. State of Gujarat (2016) 1 SCC 152 on
one side and in the cases of Salauddin Abdulsamad Shaikh v. State of
Maharashtra (1996) 1 SCC 667, subsequently followed in the case of
K.L. Verma v. State and another (1998) 9 SCC 348; Sunita Devi v.
SUSHILA AGGARWAL v. STATE (NCT OF DELHI)
A
B
C
D
E
F
G
H
22
SUPREME COURT REPORTS
[2020] 2 S.C.R.
State of Bihar (2005) 1 SCC 608; Nirmal Jeet Kaur v. State of M.P.
(2004) 7 SCC 558; HDFC Bank Limited v. J.J. Mannan (2010) 1
SCC 679; and Satpal Singh v. State of Punjab (2018) 4 SCC 303,
the following questions are referred for consideration by a larger Bench:
“(1) 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 Trial Court and seek regular bail.
(2) Whether the life of an anticipatory bail should end at the time
and stage when the accused is summoned by the court.”
2. Shri Harin P. Raval, learned Senior Advocate appearing as
Amicus Curiae relying upon the decision of this Court in the case of
Balchand Jain v. State of M.P. (1976) 4 SCC 572 has submitted that
though the expression “anticipatory bail” has not been defined in the
Code, as observed by this Court in the aforesaid decision, “anticipatory
bail” means “bail in anticipation of arrest”. It is submitted that in the
aforesaid decision, this Court has further observed that 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. It is submitted that when a
competent court grants “anticipatory bail”, it makes an order that in the
event of arrest, a person shall be released on bail. It is submitted that
there is no question of release on bail unless a person is arrested
and,
therefore, it is only on arrest that the order granting “anticipatory bail”
becomes operative.
2.1. Shri Raval, learned Amicus Curiae has taken us to the historical
perspective on the inclusion of Section 438 of the Cr. P.C. It is submitted
that on the recommendation of the Law Commission of India in its 41st
Report dated 24.09.1969, the Parliament introduced a new provision in
the form of “anticipatory bail” under Section 438 of the Cr.P.C. It is
submitted that the Law Commission of India in its 41st Report stated in
paragraph 39.9 the justification for power to grant “anticipatory bail”. It
is submitted that as per the Law Commission the necessity for granting
“anticipatory bail” arises mainly because sometimes influential persons
try to implicate their rivals in false cases for the purpose of disgracing
them or for other purposes by getting them detained in jail for some
days. It is submitted that the Law Commission further observed that
with the accentuation of political rivalry, this tendency is showing signs
of steady increase. Apart from false cases, where there are reasonable
A
B
C
D
E
F
G
H
23
grounds for holding that a person accused of an offence is not likely to
abscond, or otherwise misuse his liberty, while on bail, there seems to be
no justification to require him to first submit to custody, remain in prison
for some days, and then apply for bail.
2.2 It is further submitted that power to grant “anticipatory bail”
vests only in the High Courts or the Courts of Sessions. It is submitted
that the “anticipatory bail” can be applied at different stages. It is
submitted that even in a case where no FIR is lodged and a person is
apprehending his arrest in case the FIR is lodged, in that case, he can
apply for “anticipatory bail” and after notice to the Public Prosecutor
the Court can grant “anticipatory bail”. It is submitted that even in a
case where the FIR is lodged but the investigation has not yet begun,
i.e., pre investigation stage, the “anticipatory bail” can be applied. It is
submitted that “anticipatory bail” can also be applied at post investigation
stage. It is submitted that after exercising the discretion judiciously, the
High Court or the Sessions Court grants “anticipatory bail” and that too
after hearing the Public Prosecutor. It is submitted that 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.
2.3 Shri Harin P. Raval, learned Senior Advocate appearing as
Amicus Curiae has further submitted that in the case of Gurbaksh Singh
Sibbia (supra), a Constitution Bench of this Court has observed and
held that the facility which Section 438, Cr. P.C. affords is generally
referred to as “anticipatory bail”, an expression which was used by the
Law Commission in its 41st Report. Neither the section nor its marginal
note so describes it but, the expression “anticipatory bail” is a convenient
mode of conveying that it is possible to apply for bail in anticipation of
arrest. It is submitted that any order of bail can, of course, be effective
only from the date of arrest because to grant bail as stated in Wharton’s
Law Lexicon, is to “set at liberty a person arrested or imprisoned, on
security being taken for his appearance”. It is submitted that thus, bail is
basically release from restraint, more particularly, release from the
custody of the police. It is submitted that the act of arrest directly affects
freedom of movement of the person arrested by the police, and speaking
generally, an order of bail gives back to the accused that freedom on
condition that he will appear to take his trial. Taking a surety, bonds and
such other modalities are the means by which an assurance is secured
SUSHILA AGGARWAL v. STATE (NCT OF DELHI)
[M. R. SHAH, J.]
A
B
C
D
E
F
G
H
24
SUPREME COURT REPORTS
[2020] 2 S.C.R.
from the accused that though he has been released on bail, he will present
himself at the trial of the offence or offences of which he is charged and
for which he was arrested. It is submitted that the distinction between
an ordinary order of bail and an order of anticipatory bail is that whereas
the former is granted after arrest and therefore means release from the
custody of the police, the latter is granted in anticipation of arrest and is
therefore effective at the very moment of arrest. It is submitted that in
other words, unlike a post-arrest order of bail, it is a pre-arrest legal
process which directs that if the person in whose favour it is issued is
thereafter arrested on the accusation in respect of which the direction is
issued, he shall be released on bail.
2.4 Shri Harin P. Raval, learned Senior Advocate appearing as
Amicus Curiae has further submitted that however the core questions
before this Court are, (a) what is the life or currency of an anticipatory
bail once the same has been granted by the competent court?; (b) once
an order granting anticipatory bail has been passed, whether the said
anticipatory bail only survives till the stage of filing of charge sheet/
challan/final report or whether it subsists during the entire duration of
trial?. It is further submitted by Shri Raval that one another question
may arise, namely, in a case where if new incriminating materials are
found during the course
of investigation, whether they could be relied on
by the Court to cancel anticipatory bail which has already been granted?
2.5 It is submitted that, as such, the aforesaid questions are not
res integra in view of the decision of the Constitution Bench of this
Court in the case of Gurbaksh Singh Sibbia (supra). It is submitted
that in the case of Gurbaksh Singh Sibbia (supra), a Constitution
Bench of this Court has 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 which can vary from a few weeks to even
such duration until charge sheet has been filed and which may also extend
to the entire duration of the trial. It is submitted that it is further observed
that the sole consideration must be with a view to balance the two
competing interests, viz., protecting the liberty of the accused and the
sovereign power of the police to conduct a fair investigation. Shri Raval,
learned Amicus Curiae has heavily relied upon the observations made
by the Constitution Bench of this Court in paragraphs 42 & 43 of
Gurbaksh Singh Sibbia (supra).
A
B
C
D
E
F
G
H
25
2.6 It is further submitted by Shri Raval that in the subsequent
decision of this Court in the case of Siddharam Satlingappa Mhetre
(supra), this Court has taken the view that the order of anticipatory bail
once granted ordinarily subsists during the entire duration of the trial. It
is submitted that it is further observed that by that the power of the
Sessions Court or that of the High Court to re-visit its order granting
anticipatory bail is curtailed, in case circumstances exist or new
exigencies arise which merit interference. Heavy reliance is placed upon
observations made by this Court in the case of Siddharam Satlingappa
Mhetre (supra) in paragraphs 94, 95, 98, 100, 122 and 123.
It is submitted by Shri Raval that however, the judgment rendered
in Siddharam Satlingappa Mhetre (supra) particularly in paragraphs
95, 108, 122 and 123 does not take into consideration the observations of
the Constitution Bench in Gurbaksh Singh Sibbia (supra) in paragraphs
42 & 43, which clearly cull out that the discretion of the Sessions Court
or a High Court is wide enough to limit as well as specify the duration of
the anticipatory bail taking into account all relevant factors which may
persuade the discretion of the Court. It is submitted that Siddharam
Satlingappa Mhetre (supra) proceeded to hold that the anticipatory
bail shall subsists during the entire currency of the trial and specifically
rejected the notion that anticipatory bail could be for a limited time as
well, on the expiry of which the accused must surrender and apply for a
regular bail. It is submitted that in view of the conflicting approach, the
decision rendered in the case of Siddharam Satlingappa Mhetre
(supra)particularly the observations made in paragraphs 95, 108, 122 &
123 need to be revisited.
2.7 It is further submitted by Shri Raval, learned Amicus Curiae
that the discretion of the Sessions Court and the High Court is absolute,
and no limitations whatsoever have been imposed by the legislature. It is
submitted that the discretion therefore can be exercised to even limit the
duration of the anticipatory bail, in order to ensure that the accused also
cooperates with the investigation, or that relevant discoveries to secure
incriminating material could be made under Section 27 of the Evidence
Act, or in view of new incriminating circumstances which establish
complicity of the accused. It is submitted that therefore the view taken
by this Court in Siddharam Satlingappa Mhetre (supra) that the
anticipatory bail to subsist for the entire duration of the trial, curtails the
discretion of the Sessions Court or the High Court to limit such duration
SUSHILA AGGARWAL v. STATE (NCT OF DELHI)
[M. R. SHAH, J.]
A
B
C
D
E
F
G
H
26
SUPREME COURT REPORTS
[2020] 2 S.C.R.
of anticipatory bail. It is submitted that such an interpretation is in absolute
contravention of the law declared by the Constitution Bench in the case
of Gurbaksh Singh Sibia (supra).
2.8 Making the above submissions and relying upon the aforesaid
decisions of the Constitution Bench of this Court, Shri Raval, learned
Amicus Curiae has concluded as under:
1) that the power vested by the Parliament on superior criminal
courts in the order of hierarchy, such as Sessions Court and High Court,
is a power entailing conferment of absolute discretion in deciding whether
an application for anticipatory bail may be allowed or rejected, and also
inheres in this discretion, the additional power to limit the duration of
anticipatory bail to any point in time, or to any stage as the Courts may
deem fit in the facts and circumstances of the case, and in view of all
the attending circumstances;
2) that the order granting anticipatory bail will not interdict the
power of the investigating agency to continue investigation of the case
or would prevent the investigating agency to ask for and be granted,
respectively, Police Custody of the accused for the purposes of the
investigation and where the investigating officer feels that the custody
of the accused is necessary. Further since police custody can be granted
only in the first 14 days of the arrest, the decision to restrict the duration
of the bail would balance the twin competing
interest, viz., the individual
liberty and the sovereign power of the police to investigate the case;
3) that the life of the order granting anticipatory bail can be
restricted, which may be at a stage till either the FIR is filed in cases
where such order is granted on an reasonable apprehension of being
arrested in relation to a cognizable case, where the FIR or Complaint is
yet not filed; in cases where FIR or complaint is filed, it may be restricted
to a period of ten days after arrest (since it leaves a period of 4 days for
the investigation agency to get police custody, within the outer limit of 14
days) and then leave it open for the accused so released on anticipatory
bail to apply for regular bail under Section 437/439; alternatively such
order may endure till filing of charge sheet which has to be filed within
90 days of the arrest. It may be remembered here that non-filing of
charge sheet within 90 days of arrest entitles the accused, statutory bail
or default bail, as a matter of right, in view of express stipulation contained
in Section 167 of the Code of Criminal Procedure, 1973. Also, in case
A
B
C
D
E
F
G
H
27
where an accused is released on anticipatory bail, the investigation
authorities may not be subjected to adherence to filing of charge sheet
within 90 days as there would be no consequence as the accused is
already enlarged on bail. It may therefore be safer to adhere to the
earlier practice evolved by judicial precedents to restrict the operation
of life of the order granting anticipatory bail for 10 days of arrest, leaving
it open to the accused to apply for regular bail under Section 437/439 of
the Code and equally leaving it open for the Court to consider such an
application without in any way being influenced by the fact of grant of
anticipatory bail, as at that stage the considerations are at a very early
stage where the investigation itself may be in nascent stage or the
materials are yet to be gathered and the accused is yet to be interrogated;
and
4) that anticipatory bail once granted can also be cancelled, either
in appeal to a superior forum on challenge being made or by the same
court on establishment of well accepted and legally enshrined principles
relating to cancellation of bail.
3. Shri K.V. Vishwanathan, learned Senior Advocate who was
also requested to assist us as an Amicus Curiae has submitted that the
exercise of power under Section 438 is exactly like the exercise of power
under Sections 437 and 439 of the Cr.P.C. It is submitted therefore, the
pre-arrest bail granted in anticipation of arrest under Section 438 ought
to operate like
any other order granting bail till an order of conviction or
till an affirmative direction is passed under Section 439(2) of the Cr.P.C.
It is submitted that therefore the law laid down by this Court in the cases
of Gurbaksh Singh Sibbia (supra) and Siddharam Satlingappa
Mhetre (supra) lay down the correct law. It is submitted that the
exceptions carved out in Gurbaksh Singh Sibbia (supra) particularly
in paras 19, 42 and 43 are well within the scheme of the Code.
3.1 It is further submitted by Shri Vishwanathan, learned Amicus
Curiae that the power of arrest of the police is under Section 41 of the
Cr.P.C. It is submitted that this Section has two essential parts. One,
relating to offences in which the maximum punishment can extend to
imprisonment for seven years. Second, relating to offences in which the
maximum punishment can extent to imprisonment above seven years or
death penalty. It is submitted that though they have different conditions
and thresholds, in both cases it is clear from a bare reading of the section
that the power of arrest cannot be exercised in every FIR that is
SUSHILA AGGARWAL v. STATE (NCT OF DELHI)
[M. R. SHAH, J.]
A
B
C
D
E
F
G
H
28
SUPREME COURT REPORTS
[2020] 2 S.C.R.
registered under Section 154 Cr.P.C. It is submitted that this power is
circumscribed by the conditions laid down in this Section. Moreover, this
principle that the power of arrest is not required to be exercised in every
case was recognised in the cases of Joginder Kumar v. State of U.P.
(1994) 4 SCC 260 (para 20); Lalitha Kumari v. State of U.P. (2014)
2 SCC 1 (paras 107-108); and Arnesh Kumar v. State of Bihar (2014)
8 SCC 273 (paras 5 and 6). It is submitted that, in fact, this Court in
the case of M.C. Abraham v. State of Maharashtra (2003) 2 SCC
649 (para 15) has held that it was not mandatory for the police to
arrest a person only because his/her anticipatory bail had been rejected.
3.2 It is further submitted by Shri Vishwanathan, learned Amicus
Curiae that the power of arrest is then further circumscribed by Section
438 Cr.P.C. It is submitted that as recognized by the Law Commission,
there are cases where the power of arrest is not required or allowed to
be exercised. It is submitted that exercising power of arrest in such
cases would be a grave violation of a person’s right and liberty. It is
submitted that such exercise of power would amount to misuse of Section
41. It is submitted that the check on the power of arrest and custody
provided by Sections 437 or 439 is limited as the check is only post
facto. It is submitted that by then the person arrested has already
suffered the trauma and humiliation of
arrest.
3.3 It is further submitted that to safeguard this situation, Section
438 was introduced so as to provide for judicial intervention in necessary
cases. It is submitted that this judicial intervention is to ensure that the
power of arrest is regulated under the scrutiny of the courts. It is submitted
that to strike a further balance between the power of arrest and the
rights of the accused, this power was specifically given to the Court of
Session and the High Court so as to ensure that this judicial intervention
is done at the supervisory level and not at the magisterial level. It is
submitted that it is in this light that the two questions raised in the present
reference need to be addressed.
3.4 Taking us to the recommendations in the 41st Report of the
Law Commission and the observations made in the Report of the
Committee on Reforms of the Criminal Justice system, headed by Dr.
Justice V.S. Malimath, it is submitted by Shri Vishwanathan that Section
438 is a check on the power of arrest of the police. It is submitted that as
stated in the above Law Commission Report, it is a check not only against
false cases, but also in cases where the need to arrest does not arise.
A
B
C
D
E
F
G
H
29
3.5 It is further submitted that even otherwise a bare reading of
the Section 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. It is submitted that the position is the same as in
Sections 437 and 439. It is submitted that at this stage Section 438(3) is
relevant to be taken into consideration. It is submitted that there are two
very important aspects in Section 438(3) Cr.P.C. which are relevant to
be considered to understand the scheme of the Code, viz., (a) a person
in whose favour a pre-arrest bail order has been made under Section
438 has first to be arrested. Such a person is then released on bail on the
basis of the pre-arrest bail order. For such release the person has to
comply with the requirement of Section 441 of giving a bond or surety;
and (b) where the magistrate taking cognizance under Section 204 is of
the view that a warrant is required to be issued at the first instance, such
magistrate is only empowered to issue only a bailable warrant and not a
non-bailable warrant. This curtailment of power of the magistrate clearly
shows the intent of the legislature that a person who has been granted
bail under Section 438 ought not to be arrested at the stage of cognizance
because of the said pre-arrest bail order. It is submitted that in light of
this express provision, no other interpretation is possible to be given to
the said section. It is
submitted that the second question referred herein
is squarely covered by this sub-section.
3.6 It is further submitted by Shri Vishwanathan, learned Amicus
Curiae that the order passed under Section 438, which is in the nature of
a pre-arrest bail order, is however subject to the power granted to the
Court of Session and the High Court under Section 439(2), Cr.P.C., which
gives power to the Court of Session or the High Court to direct the
arrest of the accused at any time. It is submitted that this ensures that
through judicial intervention the balance between the two competing
principles can again be revisited if the need arises. It is submitted that
the only difference is that the power of arrest in these cases is exercised
only after judicial scrutiny. It is submitted that in any case and as observed
by this Court in Gurbaksh Singh Sibbia (supra), the orders once passed
under Section 438 will continue till the trial unless in exercise of judicial
discretion the Sessions Court or the High Court limits the same, looking
to the facts and circumstances of the case and the stages at which the
power under Section 438 Cr.P.C. is exercised. It is submitted that the
Code presupposes that the order passed under Sections 438 or 439 are
not or cannot be temporary time bound. It is submitted that a person in
SUSHILA AGGARWAL v. STATE (NCT OF DELHI)
[M. R. SHAH, J.]
A
B
C
D
E
F
G
H
30
SUPREME COURT REPORTS
[2020] 2 S.C.R.
whose favour an order of pre-arrest bail is passed can be taken into
custody thereafter only when a specific direction is passed under Section
439(2) of the Code.
3.7 Shri Vishwanathan, learned Amicus Curiae, while making the
aforesaid submissions and relying upon the aforesaid decisions of this
Court, has concluded that the pre-arrest bail granted under Section 438
of the Code is exactly like the orders of bail passed under Sections 437
and 439 of the Code; the Code does not contemplate any power in the
hands of the Courts to pass time-bound orders under Section 438 for
good reason; on the other hand, the investigating agency can approach
the Court under Section 439(2) and in the event of the police making out
a case, the Court has all the powers to direct the accused to be taken
into custody.
4. Shri Tushar Mehta, learned Solicitor General of India has heavily
relied upon paras 42 and 43 of Gurbaksh Singh Sibbia (supra) and
has submitted that as observed and held by the Constitution Bench of
this Court that the Court can in a given case and for justifiable reasons
limit the period of anticipatory bail. It is submitted that this Court in the
case of Siddharam Satlingappa Mhetre (supra) has misread the
judgment in Gurbaksh Singh Sibbia (supra) to a limited extent. It is
submitted that to the extent Siddharam Satlingappa Mhetre (supra)
states that “in view of the clear declaration of the law by the Constitution
Bench,
the life of the order under Section 438 Cr.P.C. granting bail cannot
be curtailed”, may not be correct law in light of the observations made in
para 42 by the Constitution Bench in Gurbaksh Singh Sibbia (supra).
It is submitted that the Constitution Bench in Gurbaksh Singh Sibbia
(supra) has not categorically barred anticipatory bail order for limited
time period, and at the same time, merely stated that “normal rule” should
be not to limit the time period. It is submitted that at the same time, the
decision of this Court in the case of Salauddin Abdulsamad Shaikh
(supra), to the extent it states that the order of the anticipatory bail has
to be necessarily limited in time frame is against the decision of the
Constitution Bench in Gurbaksh Singh Sibbia (supra), which
specifically states that the “normal rule” to not limit the order of
anticipatory bail. It is submitted that therefore the extreme views on
both side in Siddharam Satlingappa Mhetre (supra) and Salauddin
Abdulsamad Shaikh (supra), to that limited extent, do not consider the
observations in Gurbaksh Singh Sibbia (supra), in the correct light. It
A
B
C
D
E
F
G
H
31
is submitted that in a case, with justifiable reasons, to be recorded in
writing, indicating reasons to deviate from the “normal rule”, the
anticipatory bail can be granted for a limited time period, the life of
which, would extinguish accordingly.
4.1 It is further submitted by Shri Tushar Mehta, learned Solicitor
General of India that so far as the second reference, namely, whether
the life of an anticipatory bail should end at the time and stage when the
accused is summoned by the court is concerned, it is submitted that
there cannot be a straightjacket formula. It is submitted that in a case
wherein the anticipatory bail is granted for a limited time period, the life
would extinguish accordingly. It is submitted that in a case wherein the
anticipatory bail is granted without conditions, the life may terminate
upon the circumstances warranting cancellation of such bail or such
interference. It is submitted that the statute does not contemplate an
automatic cancellation upon filing of charge sheet and therefore the
judgment of this Court in the case of HDFC Bank Limited (supra), to
that extent, may not lay down the correct law. It is submitted that, at the
same time, the Hon’ble Courts have deprecated the practice of blanket
orders of bail/anticipatory bail. It is submitted that there are eventualities
arising in every case may be different and therefore are required to be
dealt with accordingly, in the facts and circumstances of each case. It is
submitted that even while granting the anticipatory bail, the right of the
investigating agency to seek custodial interrogation cannot be hampered
mechanically.
5. Relying upon the decisions of this Court in the cases of HDFC
Bank Ltd. (supra) and Satpal Singh (supra), it is submitted by Shri
Vikramjit Banerjee, learned Additional Solicitor General of India that as
held by this Court in the aforesaid decisions, the purpose of Section 438
is providing protection only during the process of investigation and the
accused should seek regular bail upon submission of the charge sheet
against him from the court where entire material is placed. It is submitted
that in any case grant of the pre-arrest bail under Section 438 Cr.P.C.
shall not affect the right of the investigating agency to seek custodial
interrogation and in conducting further investigation.
5.1 It is further submitted by Shri Banerjee, learned ASG that as
held by this Court in the case of Uday Mohanlal Acharya v. State of
Maharashtra (2001) 5 SCC 453, that even when accused is found to
be on bail at the stage of committal proceedings, the committing Magistrate
SUSHILA AGGARWAL v. STATE (NCT OF DELHI)
[M. R. SHAH, J.]
A
B
C
D
E
F
G
H
32
SUPREME COURT REPORTS
[2020] 2 S.C.R.
has the power to cancel the bail and commit him to custody, if he considers
it necessary to do so. It is submitted that as observed and held by this
Court in the aforesaid decisions that an interpretation that an order of
protection from arrest under Section 438 will remain operational till the
end of the trial will effectively make Section 209 (b) of Cr.P.C. otiose.
5.2 At the end, Shri Banerjee, learned ASG has submitted that
there should necessarily be conditions imposed in granting a pre-arrest
bail order and it cannot be a blanket order; in terms of the Cr.P.C. under
Section 209(b) and Section 240(2), the accused can be remanded to
custody by the Magistrate during the stage of inquiry, if he considers it
necessary to do so at the stage of the submission of the final report/
charge sheet or committal proceedings. It is submitted that it is imperative
therefore that if the accused takes pre-arrest bail during the earlier state
of criminal investigation, the power of the Magistrate under the said
provisions of Cr.P.C. should be maintained including the power of the
Magistrate to send the accused to the custody.
6. Shri C.S.N. Mohan Rao, learned Advocate appearing on behalf
of respondent no.2 has vehemently submitted that the Constitution Bench
judgment in Gurbaksh Singh Sibbia (supra) has dealt with various
aspects of anticipatory bail and preserved the discretionary power granted
by the legislature on the courts
while considering application for
anticipatory bail. It is submitted that the Constitution Bench has refused
to impose any limitation or conditions, which are not imposed by the
Parliament.
6.1 It is further submitted by the learned Counsel appearing on
behalf of respondent no.2 that the decision of the Constitution Bench
regarding duration of anticipatory bail is not called in question by any
judgment. It is submitted that there is a clear conflict regarding the
duration of anticipatory bail as enunciated by the Constitution Bench
and the order in Salauddin Abdulsamad Shaikh (supra), which was
followed in number of subsequent judgments. It is submitted that the
decision of this Court in Salauddin Abdulsamad Shaikh (supra) and
subsequent judgments following Salauddin Abdulsamad Shaikh
(supra) are all per incuriam.
6.2 It is further submitted by the learned Counsel appearing on
behalf of respondent no.2 that as a normal rule, it is not required to limit
the duration of anticipatory bail. It is submitted that however, court while
A
B
C
D
E
F
G
H
33
granting anticipatory bail may, keeping in view the peculiar facts and
circumstances of the case, limit the duration of anticipatory bail. It is
submitted that the life of anticipatory bail would not end on filing of
charge sheet.
6.3 It is further submitted by the learned counsel appearing on
behalf of respondent no.2 that both the questions of law framed for
consideration by the larger Bench does not arise for consideration. It is
submitted that considering the elaborate reasons given by the Constitution
Bench in not putting any fetters or limitations on the discretionary power
of a court to grant anticipatory bail and as there is no ambiguity in the
judgment of the Constitution Bench, this Court may reiterate the judgment
of the Constitution Bench in Gurbaksh Singh Sibbia (supra).
7. We have heard the learned counsel for the respective parties
at length.
In the light of the conflicting views of the different Benches of
varying strength, the following questions are referred for consideration
by a larger Bench:
“(1) 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 Trial Court and seek regular bail.
(2) Whether the life of an anticipatory bail should end at the time
and stage when the accused is summoned by the court.”
7.1 At the outset, it is required to be noted that as such the expression
“anticipatory bail” has not been defined in the Code. As
observed by this
Court in the case of Balchand Jain (supra), “anticipatory bail” means
“bail in anticipation of arrest”. As held by this Court, 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
SUSHILA AGGARWAL v. STATE (NCT OF DELHI)
[M. R. SHAH, J.]
A
B
C
D
E
F
G
H
34
SUPREME COURT REPORTS
[2020] 2 S.C.R.
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.
7.2 While considering the issues referred to a larger Bench,
referred to hereinabove, the decision of the Constitution Bench of this
Court in Gurbaksh Singh Sibbia (supra) is required to be referred to
and considered in detail. The matter before the Constitution Bench in
the
case of Gurbaksh Singh Sibbia (supra) was arising out of the
decision of the Full Bench of the Punjab and Haryana High Court. The
High Court rejected the application for bail after summarising, what
according to it was the true legal position, thus,
“(1) The power under Section 438, Criminal Procedure Code, is
of an extraordinary character and must be exercised sparingly
in exceptional cases only;
(2) Neither Section 438 nor any other provision of the Code
authorises the grant of blanket anticipatory bail for offences
not yet committed or with regard to accusations not so far
levelled.
(3) The said power is not unguided or uncanalised but all the
limitations imposed in the preceding Section 437, are implicit
therein and must be read into Section 438.
(4) In addition to the limitations mentioned in Section 437, the
petitioner must make out a special case for the exercise of
the power to grant anticipatory bail.
A
B
C
D
E
F
G
H
35
(5) Where a legitimate case for the remand of the offender to
the police custody under Section 167(2) can be made out by
the investigating agency or a reasonable claim to secure
incriminating material from information likely to be received
from the offender under Section 27 of the Evidence Act can
be made out, the power under Section 438 should not be
exercised.
(6) The discretion under Section 438 cannot be exercised with
regard to offences punishable with death or imprisonment
for life unless the court at that very stage is satisfied that
such a charge appears to be false or groundless.
(7) The larger interest of the public and State demand that in
serious cases like economic offences involving blatant
corruption at the higher rungs of the executive and political
power, the discretion under Section 438 of the Code should
not be exercised; and
(8) Mere general allegations of mala fides in the petition are
inadequate. The court must be satisfied on materials before
it that the allegations of mala fides are substantial and the
accusation appears to be false and groundless.”
7.3 After considering the scheme of “anticipatory bail” under
Section 438, Cr.P.C. and while not agreeing with the Full Bench, this
Court has observed and held as under:
“12. …..By any known canon of construction, words of width
and amplitude ought not generally to be cut down so as to
read into the language of the statute restraints and conditions
which the legislature itself did not
think it proper or necessary
to impose. This is especially true when the statutory provision
which falls for consideration is designed to secure a valuable
right like the right to personal freedom and involves the
application of a presumption as salutary and deep grained
in our criminal jurisprudence as the presumption of
innocence. Though the right to apply for anticipatory bail
was conferred for the first time by Section 438, while enacting
that provision the legislature was not writing on a clean slate
in the sense of taking an unprecedented step, insofar as the
right to apply for bail is concerned. It had before it two cognate
SUSHILA AGGARWAL v. STATE (NCT OF DELHI)
[M. R. SHAH, J.]
A
B
C
D
E
F
G
H
36
SUPREME COURT REPORTS
[2020] 2 S.C.R.
provisions of the Code: Section 437 which deals with the
power of courts other than the Court of Session and the High
Court to grant bail in non-bailable cases and Section 439
which deals with the “special powers” of the High Court and
the Court of Session regarding bail…..
The provisions of Sections 437 and 439 furnished a
convenient model for the legislature to copy while enacting
Section 438. If it has not done so and has departed from a
pattern which could easily be adopted with the necessary
modifications, it would be wrong to refuse to give to the
departure its full effect by assuming that it was not intended
to serve any particular or specific purpose. The departure,
in our opinion, was made advisedly and purposefully:
Advisedly, at least in part, because of the 41st Report of the
Law Commission which, while pointing out the necessity of
introducing a provision in the Code enabling the High Court
and the Court of Session to grant anticipatory bail, said in
para 39.9 that it had “considered carefully the question of
laying down in the statute certain conditions under which
alone anticipatory bail could be granted” but had come to
the conclusion that the question of granting such bail should
be left “to the discretion of the court” and ought not to be
fettered by the statutory provision itself, since the discretion
was being conferred upon superior courts which were
expected to exercise it judicially. The
legislature conferred a
wide discretion on the High Court and the Court of Session
to grant anticipatory bail because it evidently felt, firstly, that
it would be difficult to enumerate the conditions under which
anticipatory bail should or should not be granted and
secondly, because the intention was to allow the higher courts
in the echelon a somewhat free hand in the grant of relief in
the nature of anticipatory bail. That is why, departing from
the terms of Sections 437 and 439, Section 438(1) uses the
language that the High Court or the Court of Session “may,
if it thinks fit” direct that the applicant be released on bail.
Sub-section (2) of Section 438 is a further and clearer
manifestation of the same legislative intent to confer a wide
discretionary power to grant anticipatory bail. It provides
that the High Court or the Court of Session, while issuing a
A
B
C
D
E
F
G
H
37
direction for the grant of anticipatory bail, “may include such
conditions in such directions in the light of the facts of the
particular case, as it may think fit”, including the conditions
which are set out in clauses (i) to (iv) of sub-section (2). The
proof of legislative intent can best be found in the language
which the legislature uses. Ambiguities can undoubtedly be
resolved by resort to extraneous aids but words, as wide and
explicit as have been used in Section 438, must be given their
full effect, especially when to refuse to do so will result in
undue impairment of the freedom of the individual and the
presumption of innocence. It has to be borne in mind that
anticipatory bail is sought when there is a mere apprehension
of arrest on the accusation that the applicant has committed
a non- bailable offence. A person who has yet to lose his
freedom by being arrested asks for freedom in the event of
arrest. That is the stage at which it is imperative to protect his
freedom, insofar as one may, and to give full play to the
presumption that he is innocent. In fact, the stage at which
anticipatory bail if generally sought brings about its striking
dissimilarity with the situation in which a person who is
arrested for the commission of a non-bailable offence asks
for bail. In the latter situation, adequate data is available to
the court, or can be called for by it, in the light of which it
can grant or refuse relief and while granting it, modify it by
the imposition of all or any of the conditions mentioned in
Section 437.
13. This is not to say that anticipatory bail, if granted,
must be granted without the imposition of any conditions. That
will be plainly contrary to the very terms of Section 438.
Though sub-section (1) of that section says that the court
“may, if it thinks fit” issue the necessary direction for bail,
sub-section (2) confers on the court the power to include such
conditions in the direction as it may think fit in the light of the
facts of the particular case, including the conditions mentioned
in clauses (i) to (iv) of that sub-section. The controversy
therefore is not whether the court has the power to impose
conditions while granting anticipatory bail. It clearly and
expressly has that power. The true question is whether by a
process of construction, the amplitude of judicial discretion
SUSHILA AGGARWAL v. STATE (NCT OF DELHI)
[M. R. SHAH, J.]
A
B
C
D
E
F
G
H
38
SUPREME COURT REPORTS
[2020] 2 S.C.R.
which is given to the High Court and the Court of Session, to
impose such conditions as they may think fit while granting
anticipatory bail, should be cut down by reading into the
statute conditions which are not to be found therein, like those
evolved by the High Court or canvassed by the learned
Additional Solicitor General. Our answer, clearly and
emphatically, is in the negative. The High Court and the Court
of Session to whom the application for anticipatory bail is
made ought to be left free in the exercise of their judicial
discretion to grant bail if they consider it fit so to do on the
particular facts and circumstances of the case and on such
conditions as the case may warrant. Similarly, they must be
left free to refuse bail if the circumstances of the case so
warrant, on considerations similar to those mentioned in
Section 437 or which are generally considered to be relevant
under Section 439 of the Code.
xxx
xxx
xxx
xxx
xxx
xxx
xxx
xxx
18. According to the sixth proposition framed by the
High Court, the discretion under Section 438 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. Now, Section 438 confers on the High
Court and the Court of Session the power to grant anticipatory
bail if the applicant has reason to believe that he may be
arrested on an accusation of having committed “a non-bailable
offence”. We see no warrant for reading into this provision
the conditions subject to which bail can be granted under
Section 437(1) of the Code. That section, while conferring
the power to grant bail in cases of non-bailable offences,
provides by way of an exception that a person accused or
suspected of the commission of a non-bailable offence “shall
not be so released” if there appear to be reasonable grounds
for believing that he has been guilty of an offence punishable
with death or imprisonment for life. If it was intended that the
exception contained in Section 437(1) should govern the
grant of relief under Section 438(1), nothing would have been
easier for the legislature than to introduce into the latter
A
B
C
D
E
F
G
H
39
section a similar provision. We have already pointed out the
basic distinction between these two sections. Section 437
applies only after a person, who is alleged to have committed
a non-bailable offence, is arrested or detained without warrant
or appears or is brought before a court. Section 438 applies
before the arrest is made and, in fact, one of the pre-conditions
of its application is that the person, who applies for relief
under it, must be able to show that he has reason to believe
that “he may be arrested”, which plainly means that he is not
yet arrested. The nexus which this distinction bears with the
grant or refusal of bail is that in cases falling under Section
437, there is some concrete data on the basis of which it is
possible to show that there appear to be reasonable grounds
for believing that the applicant has been guilty of an offence
punishable with death or imprisonment for life. In cases falling
under Section 438 that stage is still to arrive and, in the
generality of cases thereunder, it would be premature and
indeed difficult to predicate that there are or are not
reasonable grounds for so believing. The foundation of the
belief spoken of in Section 437(1), by reason of which the
court cannot release the applicant on bail is, normally, the
credibility of the allegations contained in the first information
report. In the majority of cases falling under Section 438,
that data will be lacking for forming the requisite belief. If at
all
the conditions mentioned in Section 437 are to be read
into the provisions of Section 438, the transplantation shall
have to be done without amputation. That is to say, on the
reasoning of the High Court, Section 438(1) shall have to be
read as containing the clause that the applicant “shall not”
be released on bail “if there appear reasonable grounds for
believing that he has been guilty of an offence punishable
with death or imprisonment for life”. In this process one shall
have overlooked that whereas, the power under Section 438(1)
can be exercised if the High Court or the Court of Session
“thinks fit” to do so, Section 437(1) does not confer the power
to grant bail in the same wide terms The expression “if it thinks
fit”, which occurs in Section 438(1) in relation to the power
of the High Court or the Court of Session, is conspicuously
absent in Section 437(1). We see no valid reason for rewriting
SUSHILA AGGARWAL v. STATE (NCT OF DELHI)
[M. R. SHAH, J.]
A
B
C
D
E
F
G
H
40
SUPREME COURT REPORTS
[2020] 2 S.C.R.
Section 438 with a view, not to expanding the scope and ambit
of the discretion conferred on the High Court and the Court
of Session but, for the purpose of limiting it. Accordingly, we
are unable to endorse the view of the High Court that
anticipatory bail cannot be granted in respect of offences
like criminal breach of trust for the mere reason that the
punishment provided therefor is imprisonment for life.
Circumstances may broadly justify the grant of bail in such
cases too, though of course, the court is free to refuse
anticipatory bail in any case if there is material before it
justifying such refusal.
19. A great deal has been said by the High Court on the
fifth proposition framed by it, according to which, inter alia,
the power under Section 438 should not be exercised if the
investigating agency can make a reasonable claim that it can
secure incriminating material from information likely to be
received from the offender under Section 27 of the Evidence
Act. According to the High Court, it is the right and the duty
of the police to investigate into offences brought to their notice
and therefore, courts should be careful not to exercise their
powers in a manner which is calculated to cause interference
therewith. ….. An order of anticipatory bail does not in any
way, directly or indirectly, take away from the police their
right to investigate into charges made or to be made against
the person released on bail.
In fact, two of the usual conditions
incorporated in a direction issued under Section 438(1) are
those recommended in sub-section (2)(i) and (ii) which require
the applicant to cooperate with the police and to assure that
he shall not tamper with the witnesses during and after the
investigation. While granting relief under Section 438(1),
appropriate conditions can be imposed under Section 438(2)
so as to ensure an uninterrupted investigation. One of such
conditions can even be that in the event of the police making
out a case of a likely discovery under Section 27 of the
Evidence Act, the person released on bail shall be liable to
be taken in police custody for facilitating the discovery.
Besides, 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
A
B
C
D
E
F
G
H
41
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 [AIR 1960 SC 1125 : (1961) 1
SCR 14, 26 : 1960 Cri LJ 1504] to the effect that when a
person not in custody approaches a police officer
investigating an offence and offers to give information leading
to the discovery of a fact, having a bearing on the charge
which may be made against him, he may appropriately be
deemed so have surrendered himself to the police. The broad
foundation of this rule is stated to be that Section 46 of the
Code of Criminal Procedure does not contemplate any
formality before a person can be said to be taken in custody:
submission to the custody by word or action by a person is
sufficient. For similar reasons, we are unable to agree that
anticipatory bail should be refused if a legitimate case for
the remand of the offender to the police custody under Section
167(2) of the Code is made out by the investigating agency.
20. It is unnecessary to consider the third proposition
of the High Court in any great details because we have already
indicated that there is no justification for reading into Section
438 the limitations mentioned in Section 437. The High Court
says that such limitations are implicit in Section 438 but, with
respect, no such implications arise or can be read into that
section. The plenitude of the section must be given its full
play.
21. The High Court says in its fourth
proposition that
in addition to the limitations mentioned in Section 437, the
petitioner must make out a “special case” for the exercise of
the power to grant anticipatory bail. This, virtually, reduces
the salutary power conferred by Section 438 to a dead letter.
In its anxiety, otherwise just, to show that the power conferred
by Section 438 is not “unguided or uncanalised”, the High
Court has subjected that power to a restraint which will have
the effect of making the power utterly unguided. To say that
the applicant must make out a “special case” for the exercise
of the power to grant anticipatory bail is really to say nothing.
The applicant has undoubtedly to make out a case for the
grant of anticipatory bail. But one cannot go further and say
SUSHILA AGGARWAL v. STATE (NCT OF DELHI)
[M. R. SHAH, J.]
A
B
C
D
E
F
G
H
42
SUPREME COURT REPORTS
[2020] 2 S.C.R.
that he must make out a “special case”. 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. Every kind of judicial discretion, whatever
may be the nature of the matter in regard to which it is required
to be exercised, has to be used with due care and caution. In
fact, an awareness of the context in which the discretion is
required to be exercised and of the reasonably foreseeable
consequences of its use, is the hallmark of a prudent exercise
of judicial discretion. One ought not to make a bugbear of
the power to grant anticipatory bail.
22. By proposition No. 1 the High Court says that the
power conferred by Section 438 is “of an extraordinary
character and must be exercised sparingly in exceptional cases
only”. It may perhaps be right to describe the power as of an
extraordinary character because ordinarily the bail is applied
for under Section 437 or Section 439. These sections deal
with the power to grant or refuse bail to a person who is in
the custody of the police and that is the ordinary situation in
which bail is generally applied for. But this does not justify
the conclusion that the power must be exercised in exceptional
cases only, because
it is of an extraordinary character. We
will really be saying once too often that all discretion has to
be exercised with care and circumspection, depending on
circumstances justifying its exercise. It is unnecessary to travel
beyond it and subject the wide power conferred by the
legislature to a rigorous code of self-imposed limitations.
xxx
xxx
xxx
xxx
xxx
xxx
25. ….. We agree, with respect, that the power conferred
by Section 438 is of an extraordinary character in the sense
indicated above, namely, that it is not ordinarily resorted to
like the power conferred by Sections 437 and 439. We also
agree that the power to grant anticipatory bail should be
exercised with due care and circumspection but beyond that,
it is not possible to agree with the observations made in
A
B
C
D
E
F
G
H
43
Balchand Jain [(1976) 4 SCC 572 : 1976 SCC (Cri) 689 :
(1977) 2 SCR 52] in an altogether different context on an
altogether different point.
xxx xxx
xxx
xxx
xxx
xxx
33. We would, therefore, prefer to leave the High Court
and the Court of Session to exercise their jurisdiction under
Section 438 by a wise and careful use of their discretion
which, by their long training and experience, they are ideally
suited to do. The ends of justice will be better served by trusting
these courts to act objectively and in consonance with
principles governing the grant of bail which are recognised
over the years, than by divesting them of their discretion which
the legislature has conferred upon them, by laying down
inflexible rules of general application. It is customary, almost
chronic, to take a statute as one finds it on the ground that,
after all, “the legislature in its wisdom” has thought it fit to
use a particular expression. A convention may usefully grow
whereby the High Court and the Court of Session may be
trusted to exercise their discretionary powers in their wisdom,
especially when the discretion is entrusted to their care by
the legislature in its wisdom. If they err, they are liable to be
corrected.
xxx
xxx
xxx
xxx
xxx
35. Section 438(1) of the Code lays down a condition
which has to be satisfied before anticipatory bail can be
granted. The applicant must show that he has “reason to
believe” that he may be arrested for a non-bailable offence.
The use of the
expression “reason to believe” shows that the
belief that the applicant may be so arrested must be founded
on reasonable grounds. Mere ‘fear’ is not ‘belief”, for which
reason it is not enough for the applicant to show that he has
some sort of a vague apprehension that some one is going to
make an accusation against him, in pursuance of which he
may be arrested. The grounds on which the belief of the
applicant is based that he may be arrested for a non-bailable
offence, must be capable of being examined by the court
objectively, because it is then alone that the court can
SUSHILA AGGARWAL v. STATE (NCT OF DELHI)
[M. R. SHAH, J.]
A
B
C
D
E
F
G
H
44
SUPREME COURT REPORTS
[2020] 2 S.C.R.
determine whether the applicant has reason to believe that
he may be so arrested. Section 438(1), therefore, cannot be
invoked on the basis of vague and general allegations, as if
to arm oneself in perpetuity against a possible arrest.
Otherwise, the number of applications for anticipatory bail
will be as large as, at any rate, the adult populace. Anticipatory
bail is a device to secure the individuals liberty; it is neither a
passport to the commission of crimes nor a shield against
any and all kinds of accusations, likely or unlikely
36. Secondly, if an application for anticipatory bail is
made to the High Court or the Court of Session it must apply
its own mind to the question and decide whether a case has
been made out for granting such relief. It cannot leave the
question for the decision of the Magistrate concerned under
Section 437 of the Code, as and when an occasion arises.
Such a course will defeat the very object of Section 438.
37. Thirdly, the filing of a first information report is not
a condition precedent to the exercise of the power under
Section 438. The imminence of a likely arrest founded on a
reasonable belief can be shown to exist even if an FIR is not
yet filed.
38. Fourthly, anticipatory bail can be granted even after
an FIR is filed, so long as the applicant has not been arrested.
39. Fifthly, the provisions of Section 438 cannot be
invoked after the arrest of the accused. The grant of
“anticipatory bail” to an accused who is under arrest involves
a contradiction in terms, insofar as the offence or offences
for which he is arrested, are concerned. After arrest, the
accused must seek his remedy under Section 437 or Section
439 of the Code, if he wants to be released on bail in respect
of the offence or offences for which he is arrested.
40. We have said that there is one proposition formulated
by the High Court with which we are inclined to agree. That
is proposition (2). We agree that a ‘blanket order’ of
anticipatory bail should not generally be passed. This flows
from the very language of the section which, as discussed
above, requires the applicant to show that he has “reason to
A
B
C
D
E
F
G
H
45
believe” that he may be arrested. A belief can be said to be
founded on reasonable grounds only if there is something
tangible to go by on the basis of which it can be said that the
applicant’s apprehension that he may be arrested is genuine.
That is why, normally, a direction should not issue under
Section 438(1) to the effect that the applicant shall be released
on bail “whenever arrested for whichever offence
whatsoever”. That is what is meant by a ‘blanket order’ of
anticipatory bail, an order which serves as a blanket to cover
or protect any and every kind of allegedly unlawful activity,
in fact any eventuality, likely or unlikely regarding which, no
concrete information can possibly be had. The rationale of a
direction under Section 438(1) is the belief of the applicant
founded on reasonable grounds that he may be arrested for
a non-bailable offence. It is unrealistic to expect the applicant
to draw up his application with the meticulousness of a
pleading in a civil case and such is not requirement of the
section. But specific events and facts must be disclosed by
the applicant in order to enable the court to judge of the
reasonableness of his belief, the existence of which is the
sine qua non of the exercise of power conferred by the section.
41. Apart from the fact that the very language of the
statute compels this construction, there is an important
principle involved in the insistence that facts, on the basis of
which a direction under Section
438(1) is sought, must be
clear and specific, not vague and general. It is only by the
observance of that principle that a possible conflict between
the right of an individual to his liberty and the right of the
police to investigate into crimes reported to them can be
avoided. A blanket order of anticipatory bail is bound to cause
serious interference with both the right and the duty of the
police in the matter of investigation because, regardless of
what kind of offence is alleged to have been committed by
the applicant and when, an order of bail which comprehends
allegedly unlawful activity of any description whatsoever, will
prevent the police from arresting the applicant even if he
commits, say, a murder in the presence of the public. Such an
order can then become a charter of lawlessness and a weapon
to stifle prompt investigation into offences which could not
possibly be predicated when the order was passed. Therefore,
SUSHILA AGGARWAL v. STATE (NCT OF DELHI)
[M. R. SHAH, J.]
A
B
C
D
E
F
G
H
46
SUPREME COURT REPORTS
[2020] 2 S.C.R.
the court which grants anticipatory bail must take care to
specify the offence or offences in respect of which alone the
order will be effective. The power should not be exercised in
a vacuum.
42. There was some discussion before us on certain
minor modalities regarding the passing of bail orders under
Section 438(1). Can an order of bail be passed under the
section without notice to the Public Prosecutor? It can be.
But notice should issue to the Public Prosecutor or the
Government Advocate forthwith and the question of bail
should be re-examined in the light of the respective contentions
of the parties. The ad interim order too must conform to the
requirements of the section and suitable conditions should be
imposed on the applicant even at that stage. Should the
operation of an order passed under Section 438(1) be limited
in point of time? Not necessarily. The court may, if there are
reasons for doing so, limit the operation of the order to a
short period until after the filing of an FIR in respect of the
matter covered by the order. The applicant may in such cases
be directed to obtain an order of bail under Section 437 or
439 of the Code within a reasonably short period after the
filing of the FIR as aforesaid. But this need not be followed
as an invariable rule. The normal rule should be not to limit
the operation of the order in relation to a period of time.
43. During the last couple of years this Court, while
dealing with appeals against orders passed by various High
Courts, has granted anticipatory bail to many a person by
imposing conditions set out in Section 438(2) (i), (ii) and (iii).
The court has, in addition, directed in most of those cases
that (a) the applicant should surrender himself to the police
for a brief period if a discovery is to be made under Section
27 of the Evidence Act or that he should be deemed to have
surrendered himself if such a discovery is to be made. In
certain exceptional cases, the court has, in view of the material
placed before it, directed that the order of anticipatory bail
will remain in operation only for a week or so until after the
filing of the FIR in respect of matters covered by the order.
These orders, on the whole, have worked satisfactorily,
causing the least inconvenience to the individuals concerned
A
B
C
D
E
F
G
H
47
and least interference with the investigational rights of the
police. The court has attempted through those orders to strike
a balance between the individual’s right to personal freedom
and the investigational rights of the police. The appellants
who were refused anticipatory bail by various courts have
long since been released by this Court under Section 438(1)
of the Code.”
7.4 The aforesaid decision of the Constitution Bench in the case
of Gurbaksh Singh Sibbia (supra) holds the field for number of years
and the same has been followed by all the Courts in the country. While
granting anticipatory bail, normally following conditions are imposed by
the court/courts which as such are in consonance with the decision of
the Constitution Bench in the case of Gurbaksh Singh Sibbia (supra)
and Section 438(2) read with Section 437(3) of the Cr.P.C:
1. the applicant namely________________ shall furnish personal
bond of Rs.______________ with his recent self-attested photograph
and surety of the like amount on the following conditions at the satisfaction
of the Investigating Officer;
2. the applicant shall remain present before the concerned police
station on ____________ between ____________________;
3. the applicant shall co-operate with the investigation and make
himself available for interrogation whenever required;
4. the applicant shall not directly or indirectly make any inducement,
threat or promise to any witness acquainted with the facts of the case so
as
to dissuade him from disclosing such facts to the court or to any
police officer;
5. the applicant shall not obstruct or hamper the police investigation
and not to play mischief with the evidence collected or yet to be collected
by the police;
6. the applicant shall not leave the territory of ____________,
without prior permission of the court, till trial is over;
7. the applicant shall mark his presence before concerned police
station on ______________ between ____________ for the period
of six months, from the date of this order;
8. the applicant shall maintain law and order;
SUSHILA AGGARWAL v. STATE (NCT OF DELHI)
[M. R. SHAH, J.]
A
B
C
D
E
F
G
H
48
SUPREME COURT REPORTS
[2020] 2 S.C.R.
9. the applicant shall, at the time of execution of the Bond, furnish
his address and mobile number to the Investigating Officer, and the Court
concerned, and shall not change the residence till the final disposal of
the case;
10. the applicant shall surrender his passport, if any, before the
Investigating Officer within a week and, if he does not possess any
passport, he shall file an affidavit to that effect before the Investigating
Officer;
11. the applicant shall regularly remain present during the trial,
and co-operate the Honourable Court to complete the trial for the above
offences.
If breach of any of the above conditions is committed, the order
of anticipatory bail would be cancelled. It would be open to the
Investigating Officer to file an application for remand, and the concerned
Magistrate would decide it on merits, without influenced by the grant of
anticipatory bail order.
However, in the case of Siddharam Satlingappa Mhetre (supra),
despite the specific observations by the Constitution Bench of this Court
in Gurbaksh Singh Sibbia (supra) that the normal rule should be not
to limit the operation of the order in relation to a period of time, in other
words in an appropriate case and looking to the facts and circumstances
of the case and the stage at which the pre-arrest bail application was
made, the court concerned can limit the operation of the order in relation
to a period of time, on absolute
misreading of the judgment in the case of
Gurbaksh Singh Sibbia (supra) and just contrary to the observations
made in paragraphs 42 and 43, an absolute proposition of law is laid
down that the life of the order under Section 438, Cr. P.C. granting bail
cannot be curtailed. Despite the clear cut observations made by the
Constitution Bench in Gurbaksh Singh Sibbia (supra) made in
paragraphs 42 and 43, in the case of Salauddin Abdulsamad Shaikh
(supra), a three Judge Bench of this Court has observed and held that
the order of “anticipatory bail” has to be necessarily limit in time frame.
In many cases subsequently the decision in the case of Salauddin
Abdulsamad Shaikh (supra) has been followed, despite the specific
observations made by the Constitution Bench in Gurbaksh Singh Sibbia
(supra) made in paragraphs 42 and 43 which, as such, are just contrary
to the view taken in subsequent decisions in the cases of Siddharam
A
B
C
D
E
F
G
H
49
Satlingappa Mhetre (supra) and Salauddin Abdulsamad Shaikh
(supra). At this stage, it is required to be noted that in the case of
Salauddin Abdulsamad Shaikh (supra), this Court had not at all
considered the decision of the Constitution Bench in the case of Gurbaksh
Singh Sibbia (supra). It cannot be disputed that the decision of this
Court in the case of Gurbaksh Singh Sibbia(supra) is a Constitution
Bench decision which is binding unless it is upset by a larger Bench than
the Constitution Bench. Therefore, considering the decision of the
Constitution Bench of this Court in the case of Gurbaksh Singh Sibbia
(supra) and the relevant observations, reproduced hereinabove, the
decision of this Court in the case of Siddharam Satlingappa Mhetre
(supra) 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 (supra). The decision of this Court in the
case of Salauddin Abdulsamad Shaikh (supra) 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 of this Court in the case of Gurbaksh Singh Sibbia
(supra), which is a Constitution Bench judgment.
7.5 Thus, considering the observations made by the Constitution
Bench of 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 Sections 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 while
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 in progress or at the
stage when 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.
SUSHILA AGGARWAL v. STATE (NCT OF DELHI)
[M. R. SHAH, J.]
A
B
C
D
E
F
G
H
50
SUPREME COURT REPORTS
[2020] 2 S.C.R.
S. RAVINDRA BHAT, J.
1. I have gone through the reasoning and conclusions of Justice
M.R.Shah. I am in agreement with his judgment. However, I am
supplementing the conclusions arrived at by Shah, J with this separate
judgment since I am of the view that while there is no disagreement on
the essential reasoning, some aspects need to be discussed, in addition.
2. The following questions have been referred to this larger bench
of five judges:
(1) Whether the protection granted to a person under Section 438
Cr. PC should be limited to a fixed period so as to enable the person to
surrender before the Trial Court and seek regular bail.
(2) Whether the life of an anticipatory bail should end at the time
and stage when the accused is summoned by the court.
Background
3. First, a background. The judgment of a five-judge bench of this
court in Shri Gurbaksh Singh Sibbia and others v. State of Punjab1
considered the available views on the provision for anticipatory bail (a
concept not in existence till the enactment of the Criminal Procedure
Code, 1973- hereafter “Cr. PC” or “the Code”). Section 438 enables
two classes of courts- a Court of Sessions and High Court, to issue
directions not to arrest a person, who apprehends arrest. Sibbia
comprehensively dealt with the history of the provision, the felt need
which resulted in its enactment, the observations and comments of the
41st Report of the Law Commission, which had suggested
introduction
of such a provision, and the efficacy of prevailing practices. In brief,
Sibbia (which this court would analyze in greater detail later) held that
the power (to grant anticipatory bail) is cast in wide terms and should
not be hedged in through narrow judicial interpretation. At the same
time, the larger bench (of five judges, which decided Sibbia) ruled that
in given individual cases, courts could impose conditions which were
appropriate, having regard to the circumstances.
4. This reference is necessitated, because in the present case, a
bench of three judges, on 15th May 2018, noticed conflicting views
11980 (2) SCC 565
A
B
C
D
E
F
G
H
51
regarding interpretation of the provision- Section 438. The court noticed,
prima facie, that one line of judgments (Salauddin Abdulsamad Shaikh
v. State of Maharashtra2; K.L. Verma v. State & Anr3; Sunita Devi v.
State of Bihar & Anr4; Adri Dharan Das v. State of West Bengal5;
Nirmal Jeet Kaur v. State of M.P. & Anr6; HDFC Bank Limited v.
J.J. Mannan7; Satpal Singh v. the State of Punjab8 and Naresh Kumar
Yadav v Ravindra Kumar9 held that anticipatory bail orders should
invariably contain conditions, either with reference to time, or occurrence
of an event, such as filing of a charge sheet, in criminal proceedings, that
would define its time of operation, after which the individual concerned
would have to secure regular bail, under Section 439 Cr. PC. The court
also noticed, that on the other hand, the observations in Sibbia did not
suggest such an inflexible approach. The second line of cases included
Siddharam Satlingappa Mhetre v. State of Maharashtra & Ors10
and Bhadresh Bipinbhai Sheth v. State of Gujarat & Anr11; these
held that no conditions ought to be imposed by the court, whilst granting
anticipatory bail, which was to inure and protect the individual indefinitely-
even when charges were framed in a given criminal case, leading to
trial- till the end of the trial.
5. The court, in Sibbia, elaborately dealt with the background
which led to the introduction of the provision for anticipatory bail. It took
note of the forty first report of the Law
Commission, on whose
recommendations the provision was introduced. Sibbia traced the history
of the provision, from the stage of the recommendation, to the draft bill
and later its enactment, observing as follows:
“4. The CrPC, 1898 did not contain any specific provision
corresponding to the present Section 438. 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
2 (1996 (1) SCC 667)
3 1998 (9) SCC 348
4 2005 (1) SCC 608
5 2005 (4) SCC 303
6 2004 (7) SCC 558
7 2010 (1) SCC 679
8 2018 SCC Online (SC 415
9 2008 (1) SCC 632
10 2011 (1) SCC 694
11 2016 (1) SCC 152
SUSHILA AGGARWAL v. STATE (NCT OF DELHI)
[S. RAVINDRA BHAT, J.]
A
B
C
D
E
F
G
H
52
SUPREME COURT REPORTS
[2020] 2 S.C.R.
arrest, the preponderance of view being that it did not have
such power. The need for extensive amendments to the CrPC
was felt for a long time and various suggestions were made
in different quarters in order to make the Code more effective
and comprehensive. The Law Commission of India, in its 41st
Report dated September 24, 1969 pointed put the necessity
of introducing a provision in the Code enabling the High Court
and the Court of Session to grant “anticipate; bail”. It
observed in paragraph 39.9 of its report (Volume I) :
39.9. The suggestion for directing the release of a person on
bail prior to his arrest (commonly known as “anticipatory
bail”) was carefully considered by us. Though there is a
conflict of judicial opinion about the power of a Court to-
grant anticipatory bail, the majority view is that there is no
such power under the existing provisions of the Code. The
necessity for granting anticipatory bail arises mainly because
sometimes influential persons try to’ implicate their rivals in
false cases for the purpose of disgracing them or for other
purposes by getting them detained in jail for some days. In
recent times, with the accentuation of political rivalry, this
tendency is showing signs of steady increase. Apart from false
cases, where there are reasonable grounds for holding that a
person accused of an offence is not likely to abscond, or
otherwise misuse his liberty while on bail, there seems no
justification to require him first to submit to custody, remain
in prison for some days and then apply for bail.
We recommend the acceptance of this suggestion. We are
further of the view that this special power should be conferred
only on the High Court and the Court of Session, and that
the order should take effect at the time of arrest or thereafter.
In order to settle the details of this suggestion, the following
draft of a, new section is placed for consideration :
‘497A. (1) When any person has a reasonable
apprehension that he would be arrested on an accusation
of having committed a non-bailable offence, he may apply
to the High Court or the Court of Session for a direction
under this section. That Court may, in its discretion, direct
that in the event of his arrest, he shall be released on bail.
A
B
C
D
E
F
G
H
53
(2) A Magistrate taking cognizance of an offence against
that person shall, while taking steps Under Section 204(1),
either issue summons or a bailable warrant as indicated
in the direction of the Court under Sub-section (1).
(3) if any person in respect of whom such a direction is
made is arrested without warrant by an officer in charge
of a police station on an accusation of having committed
that; offence, and is prepared either at the time of arrest
or at any time while in the custody of such officer to give
bail, such person shall be released on bail.”
We considered carefully the question of laying down in the
statute certain conditions under which alone anticipatory bail could
be granted. But we found that it may not be practicable to
exhaustively enumerate those conditions; and moreover, the laying
down of such conditions may be construed as prejudging (partially
at any rate) the whole case. Hence we would leave it to the
discretion, of the; court and prefer not to fetter such discretion in
the statutory provision itself. Superior Courts will, undoubtedly,
exercise their discretion properly, and not make any observations
in the order granting anticipatory bail which will have a tendency
to prejudice the fair trial of the accused.’
5. The suggestion made by the Law Commission was, in
principle, accepted by the Central Government which introduced
Clause 447 in the Draft Bill of the CrPC, 1970 with a view to
conferring an express power on the High Court
and the Court of
Session to grant anticipatory bail. That Clause read thus :
‘447. (1) When any person has reason to believe that he would
be arrested on an accusation of having committed a non-
bailable offence, he may apply to the High Court or the Court
of Session for a direction under this section; and that Court
may, if it thinks fit, direct that in the event of such arrest, he
shall be released on bail.
(2) If such person is thereafter arrested without warrant by
an officer in charge of a police station on such accusation,
and is prepared either at the lime of arrest or at any time
while in the custody of such officer to give bail, he shall be
released on bail; and if a Magistrate taking cognizance of
SUSHILA AGGARWAL v. STATE (NCT OF DELHI)
[S. RAVINDRA BHAT, J.]
A
B
C
D
E
F
G
H
54
SUPREME COURT REPORTS
[2020] 2 S.C.R.
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).’
6. The Law Commission, in paragraph 31 of its 48th Report
(1972), made the following comments on the aforesaid Clause.
‘31. The Bill introduces a provision for the grant of
anticipatory bail. This is substantially in accordance with the
recommendation made by the previous Commission. We agree
that this would be a useful addition, though we must add that
it is in very exceptional cases that such a power should be
exercised.
We are further of the view that in order to ensure that
the provision is not put to abuse at the instance of
unscrupulous petitioners, the final order should be made only
after notice to the Public Prosecutor. The initial order should
only be an interim one. Further, the relevant section should
make it clear that the direction can be issued only for reasons
to be recorded, and if the court is satisfied that such a
direction is necessary in the interests of justice.
It will also be convenient to provide that notice of the interim
order as well as of the final orders will be given to the
Superintendent of Police forthwith.’
Clause 447 of the Draft Bill of 1970 was enacted with certain
modifications and became Section 438 of the CrPC, 1973
which we have extracted at the outset of this judgment.”
6. The context
of Sibbia was the correctness of a decision of the
Full Bench of the Punjab and Haryana High Court, which restrictively
interpreted Section 438 and held that the power under Section 438, “is
extra-ordinary” and must be exercised sparingly in exceptional cases
only; that it does not empower the grant of anticipatory bail in a blanket
manner, in respect of offences not yet committed or with regard to
accusations not yet levelled; that it is not an unguided power, but subject
to limitations in Section 437 – which are implicit and must be read into
Section 438.The Full Bench also held that the petitioner must “must
make out a special case for the exercise of the power to grant
anticipatory bail”; and further that where a legitimate case for remand
A
B
C
D
E
F
G
H
55
to police custody is made or a reasonable claim to secure incriminating
material from information likely to be received from the offender “under
Section 27 of the Evidence Act can be made out, the power Under
Section 438 should not be exercised.” The full bench held that Section
438 cannot be availed in respect of offences punishable with death or
life imprisonment “unless the court at that very stage is satisfied that
such a charge appears to be false or groundless.” Likewise, in larger
public interest and the state’s interest Section 438 cannot be resorted to
in “economic offences involving blatant corruption at the higher
rungs of the executive and political power” and that
“(8) Mere general allegation of mala fides in the petition are
inadequate. The court must be satisfied on materials before it
that the allegations of mala fides are substantial and the
accusation appears to be false and groundless.”
7. Sibbia discussed this issue and held that the narrow, restricted
interpretation of Section 438 was not warranted. The court disapproved
the Punjab High Court Full Bench decision; the five judge Bench ruled
as follows:
“…The provisions of Sections 437 and 439 furnished a
convenient model for the legislature to copy while enacting
Section 438. If it has not done so and has departed from a
pattern which could easily be adopted with the necessary
modifications, it would be wrong to refuse to give to the
departure its full effect by assuming that it was not
intended
to serve any particular or specific purpose. The departure,
in our opinion, was made advisedly and purposefully:
Advisedly, at least in part, because of the 41st Report of the
Law Commission which, while pointing out the necessity of
introducing a provision in the Code enabling the High Court
and the Court of Session to grant anticipatory bail, said in
para 39.9 that it had “considered carefully the question of
laying down in the statute certain conditions under which
alone anticipatory bail could be granted” but had come to
the conclusion that the question of granting such bail should
be left “to the discretion of the court” and ought not to be
fettered by the statutory provision itself, since the discretion
was being conferred upon superior courts which were
expected to exercise it judicially. The legislature conferred a
SUSHILA AGGARWAL v. STATE (NCT OF DELHI)
[S. RAVINDRA BHAT, J.]
A
B
C
D
E
F
G
H
56
SUPREME COURT REPORTS
[2020] 2 S.C.R.
wide discretion on the High Court and the Court of Session
to grant anticipatory bail because it evidently felt, firstly, that
it would be difficult to enumerate the conditions under which
anticipatory bail should or should not be granted and
secondly, because the intention was to allow the higher courts
in the echelon a somewhat free hand in the grant of relief in
the nature of anticipatory bail. That is why, departing from
the terms of Sections 437 and 439, Section 438(1) uses the
language that the High Court or the Court of Session “may,
if it thinks fit” direct that the applicant be released on bail.
Sub-section (2) of Section 438 is a further and clearer
manifestation of the same legislative intent to confer a wide
discretionary power to grant anticipatory bail. It provides
that the High Court or the Court of Session, while issuing a
direction for the grant of anticipatory bail, “may include such
conditions in such directions in the light of the facts of the
particular case, as it may think fit”, including the conditions
which are set out in clauses (i) to (iv) of sub-section (2). The
proof of legislative intent can best be found in the language
which the legislature uses. Ambiguities can undoubtedly be
resolved by resort to extraneous aids but words, as wide and
explicit as have been used in Section 438, must be given their
full effect, especially when to refuse to do so will result in
undue impairment of the
freedom of the individual and the
presumption of innocence. It has to be borne in mind that
anticipatory bail is sought when there is a mere apprehension
of arrest on the accusation that the applicant has committed
a non- bailable offence. A person who has yet to lose his
freedom by being arrested asks for freedom in the event of
arrest. That is the stage at which it is imperative to protect his
freedom, insofar as one may, and to give full play to the
presumption that he is innocent. In fact, the stage at which
anticipatory bail if generally sought brings about its striking
dissimilarity with the situation in which a person who is
arrested for the commission of a non-bailable offence asks
for bail. In the latter situation, adequate data is available to
the court, or can be called for by it, in the light of which it
can grant or refuse relief and while granting it, modify it by
the imposition of all or any of the conditions mentioned in
Section 437.
A
B
C
D
E
F
G
H
57
13. This is not to say that anticipatory bail, if granted, must
be granted without the imposition of any conditions. That will
be plainly contrary to the very terms of Section 438. Though
sub-section (1) of that section says that the court “may, if it
thinks fit” issue the necessary direction for bail, sub-section
(2) confers on the court the power to include such conditions
in the direction as it may think fit in the light of the facts of
the particular case, including the conditions mentioned in
clauses (i) to (iv) of that sub-section. The controversy therefore
is not whether the court has the power to impose conditions
while granting anticipatory bail. It clearly and expressly has
that power. The true question is whether by a process of
construction, the amplitude of judicial discretion which is
given to the High Court and the Court of Session, to impose
such conditions as they may think fit while granting
anticipatory bail, should be cut down by reading into the
statute conditions which are not to be found therein, like those
evolved by the High Court or canvassed by the learned
Additional Solicitor General. Our answer, clearly and
emphatically, is in the negative. The High Court and the Court
of Session to whom the application for anticipatory bail is
made ought to be left free in the exercise of their judicial
discretion to grant bail if they consider it fit so to do on the
particular facts and circumstances of the case and on such
conditions as the
case may warrant. Similarly, they must be
left free to refuse bail if the circumstances of the case so
warrant, on considerations similar to those mentioned in
Section 437 or which are generally considered to be relevant
under Section 439 of the Code.
14. Generalizations on matters which rest on discretion and
the attempt to discover formulae of universal application when
facts are bound to differ from case to case frustrate the very
purpose of conferring discretion. No two cases are alike on
facts and therefore, courts have to be allowed a little free
play in the joints if the conferment of discretionary power is
to be meaningful. There is no risk involved in entrusting a
wide discretion to the Court of Session and the High Court in
granting anticipatory bail because, firstly, these are higher
courts manned by experienced persons, secondly, their orders
SUSHILA AGGARWAL v. STATE (NCT OF DELHI)
[S. RAVINDRA BHAT, J.]
A
B
C
D
E
F
G
H
58
SUPREME COURT REPORTS
[2020] 2 S.C.R.
are not final but are open to appellate or revisional scrutiny
and above all because, discretion has always to be exercised
by courts judicially and not according to whim, caprice or
fancy. On the other hand, there is a risk in foreclosing
categories of cases in which anticipatory bail may be allowed
because life throws up unforeseen possibilities and offers new
challenges. Judicial discretion has to be free enough to be
able to take these possibilities in its stride and to meet these
challenges. While dealing with the necessity for preserving
judicial discretion unhampered by rules of general
application.
————
———————
      ———
19. A great deal has been said by the High Court on the fifth
proposition framed by it, according to which, inter alia, the
power under Section 438 should not be exercised if the
investigating agency can make a reasonable claim that it can
secure incriminating material from information likely to be
received from the offender under Section 27 of the Evidence
Act. According to the High Court, it is the right and the duty
of the police to investigate into offences brought to their notice
and therefore, courts should be careful not to exercise their
powers in a manner which is calculated to cause interference
therewith. It is true that the functions of the judiciary and the
police are in a sense complementary and not overlapping.
And, as observed by the Privy Council in King-Emperor v.
Khwaja Nazir
Ahmed [AIR 1945 PC 18 : (1943-44) 71 IA
203 : 46 Cri LJ 413] :
“Just as it is essential that every one accused of a crime
should have free access to a Court of justice so that he
may be duly acquitted if found not guilty of the offence
with which he is charged, so it is of the utmost importance
that the judiciary should not interfere with the police in
matters which are within their province and into which the
law imposes on them the duty of inquiry .... The functions
of the judiciary and the police are complementary, not
overlapping, and the combination of the individual liberty
with a due observance of law and order is only to be
obtained by leaving each to exercise its own function,…”
A
B
C
D
E
F
G
H
59
But these remarks, may it be remembered, were made by
the Privy Council while rejecting the view of the Lahore
High Court that it had inherent jurisdiction under the old
Section 561-A of the Criminal Procedure Code, to quash
all proceedings taken by the police in pursuance of two
first information reports made to them. An order quashing
such proceedings puts an end to the proceedings with the
inevitable result that all investigation into the accusation
comes to a halt. Therefore, it was held that the court cannot,
in the exercise of its inherent powers, virtually direct that
the police shall not investigate into the charges contained
in the FIR. We are concerned here with a situation of an
altogether different kind. An order of anticipatory bail does
not in any way, directly or indirectly, take away from the
police their right to investigate into charges made or to be
made against the person released on bail. In fact, two of
the usual conditions incorporated in a direction issued
under Section 438(1) are those recommended in sub-section
(2)(i) and (ii) which require the applicant to cooperate with
the police and to assure that he shall not tamper with the
witnesses during and after the investigation. While granting
relief under Section 438(1), appropriate conditions can
be imposed under Section 438(2) so as to ensure an
uninterrupted investigation. One of such conditions can
even be that in the event of the police making out a case of
a likely discovery
under Section 27 of the Evidence Act,
the person released on bail shall be liable to be taken in
police custody for facilitating the discovery. Besides, 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 [AIR 1960 SC 1125 :
(1961) 1 SCR 14, 26 : 1960 Cri LJ 1504] to the effect that
when a person not in custody approaches a police officer
investigating an offence and offers to give information
leading to the discovery of a fact, having a bearing on the
charge which may be made against him, he may
SUSHILA AGGARWAL v. STATE (NCT OF DELHI)
[S. RAVINDRA BHAT, J.]
A
B
C
D
E
F
G
H
60
SUPREME COURT REPORTS
[2020] 2 S.C.R.
appropriately be deemed so have surrendered himself to
the police. The broad foundation of this rule is stated to
be that Section 46 of the Code of Criminal Procedure does
not contemplate any formality before a person can be said
to be taken in custody: submission to the custody by word
or action by a person is sufficient. For similar reasons, we
are unable to agree that anticipatory bail should be refused
if a legitimate case for the remand of the offender to the
police custody under Section 167(2) of the Code is made
out by the investigating agency.
 ——————
————
———-
21. The High Court says in its fourth proposition that in
addition to the limitations mentioned in Section 437, the
petitioner must make out a “special case” for the exercise
of the power to grant anticipatory bail. This, virtually,
reduces the salutary power conferred by Section 438 to a
dead letter. In its anxiety, otherwise just, to show that the
power conferred by Section 438 is not “unguided or
uncanalised”, the High Court has subjected that power to
a restraint which will have the effect of making the power
utterly unguided. To say that the applicant must make out
a “special case” for the exercise of the power to grant
anticipatory bail is really to say nothing. The applicant
has undoubtedly to make out a case for the grant of
anticipatory bail. But one cannot go further and say that
he must make out a “special case”. 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. Every kind of judicial
discretion, whatever may be the nature of the matter in
regard to which it is required to be exercised, has to be
used with due care and caution. In fact, an awareness of
the context in which the discretion is required to be exercised
and of the reasonably foreseeable consequences of its use,
is the hallmark of a prudent exercise of judicial discretion.
A
B
C
D
E
F
G
H
61
One ought not to make a bugbear of the power to grant
anticipatory bail.
————
—————
————-
22. By proposition No. 1 the High Court says that the power
conferred by Section 438 is “of an extraordinary character
and must be exercised sparingly in exceptional cases only”.
It may perhaps be right to describe the power as of an
extraordinary character because ordinarily the bail is
applied for under Section 437 or Section 439. These
sections deal with the power to grant or refuse bail to a
person who is in the custody of the police and that is the
ordinary situation in which bail is generally applied for.
But this does not justify the conclusion that the power must
be exercised in exceptional cases only, because it is of an
extraordinary character. We will really be saying once too
often that all discretion has to be exercised with care and
circumspection, depending on circumstances justifying its
exercise. It is unnecessary to travel beyond it and subject
the wide power conferred by the legislature to a rigorous
code of self-imposed limitations.
————
—————
————-
26. We find a great deal of substance in Mr Tarkunde’s
submission that since 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 no such restrictions have been
imposed by the legislature in the terms of that section.
Section 438 is a procedural provision which is concerned
with
the personal liberty of the individual, who is entitled
to the benefit of the presumption of innocence since he is
not, on the date of his application for anticipatory bail,
convicted of the offence in respect of which he seeks bail.
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 beneficent provision
contained in Section 438 must be saved, not jettisoned.
SUSHILA AGGARWAL v. STATE (NCT OF DELHI)
[S. RAVINDRA BHAT, J.]
A
B
C
D
E
F
G
H
62
SUPREME COURT REPORTS
[2020] 2 S.C.R.
No doubt can linger after the decision in Maneka Gandhi
[Maneka Gandhi v. Union of India, (1978) 1 SCC 248] ,
that in order to meet the challenge of Article 21 of the
Constitution, the procedure established by law for
depriving a person of his liberty must be fair, just and
reasonable. Section 438, in the form in which it is conceived
by the legislature, is open to no exception on the ground
that it prescribes a procedure which is unjust or unfair. We
ought, at all costs, to avoid throwing it open to a
Constitutional challenge by reading words in it which are
not to be found therein.
————
—————
————-
33. We would, therefore, prefer to leave the High Court
and the Court of Session to exercise their jurisdiction under
Section 438 by a wise and careful use of their discretion
which, by their long training and experience, they are
ideally suited to do. The ends of justice will be better served
by trusting these courts to act objectively and in
consonance with principles governing the grant of bail
which are recognised over the years, than by divesting them
of their discretion which the legislature has conferred upon
them, by laying down inflexible rules of general
application. It is customary, almost chronic, to take a statute
as one finds it on the ground that, after all, “the legislature
in its wisdom” has thought it fit to use a particular
expression. A convention may usefully grow whereby the
High Court and the Court
of Session may be trusted to
exercise their discretionary powers in their wisdom,
especially when the discretion is entrusted to their care by
the legislature in its wisdom. If they err, they are liable to
be corrected.
34. This should be the end of the matter, but it is necessary
to clarify a few points which have given rise to certain
misgivings.
35. Section 438(1) of the Code lays down a condition which
has to be satisfied before anticipatory bail can be granted.
The applicant must show that he has “reason to believe”
that he may be arrested for a non-bailable offence. The
A
B
C
D
E
F
G
H
63
use of the expression “reason to believe” shows that the
belief that the applicant may be so arrested must be
founded on reasonable grounds. Mere ‘fear’ is not ‘belief’,
for which reason it is not enough for the applicant to show
that he has some sort of a vague apprehension that some
one is going to make an accusation against him, in
pursuance of which he may be arrested. The grounds on
which the belief of the applicant is based that he may be
arrested for a non-bailable offence, must be capable of
being examined by the court objectively, because it is then
alone that the court can determine whether the applicant
has reason to believe that he may be so arrested. Section
438(1), therefore, cannot be invoked on the basis of vague
and general allegations, as if to arm oneself in perpetuity
against a possible arrest. Otherwise, the number of
applications for anticipatory bail will be as large as, at
any rate, the adult populace. Anticipatory bail is a device
to secure the individuals liberty; it is neither a passport to
the commission of crimes nor a shield against any and all
kinds of accusations, likely or unlikely
36. Secondly, if an application for anticipatory bail is made
to the High Court or the Court of Session it must apply its
own mind to the question and decide whether a case has
been made out for granting such relief. It cannot leave the
question for the decision of the Magistrate concerned under
Section 437 of the Code, as and when an occasion
arises.
Such a course will defeat the very object of Section 438.
37. Thirdly, the filing of a first information report is not a
condition precedent to the exercise of the power under
Section 438. The imminence of a likely arrest founded on
a reasonable belief can be shown to exist even if an FIR is
not yet filed.
38. Fourthly, anticipatory bail can be granted even after
an FIR is filed, so long as the applicant has not been
arrested.
39. Fifthly, the provisions of Section 438 cannot be invoked
after the arrest of the accused. The grant of “anticipatory
bail” to an accused who is under arrest involves a
SUSHILA AGGARWAL v. STATE (NCT OF DELHI)
[S. RAVINDRA BHAT, J.]
A
B
C
D
E
F
G
H
64
SUPREME COURT REPORTS
[2020] 2 S.C.R.
contradiction in terms, insofar as the offence or offences
for which he is arrested, are concerned. After arrest, the
accused must seek his remedy under Section 437 or Section
439 of the Code, if he wants to be released on bail in respect
of the offence or offences for which he is arrested.
40. We have said that there is one proposition formulated
by the High Court with which we are inclined to agree.
That is proposition (2). We agree that a ‘blanket order’ of
anticipatory bail should not generally be passed. This flows
from the very language of the section which, as discussed
above, requires the applicant to show that he has “reason
to believe” that he may be arrested. A belief can be said to
be founded on reasonable grounds only if there is
something tangible to go by on the basis of which it can be
said that the applicant’s apprehension that he may be
arrested is genuine. That is why, normally, a direction should
not issue under Section 438(1) to the effect that the
applicant shall be released on bail “whenever arrested for
whichever offence whatsoever”. That is what is meant by
a ‘blanket order’ of anticipatory bail, an order which serves
as a blanket to cover or protect any and every kind of
allegedly unlawful activity, in fact any eventuality, likely
or unlikely regarding which, no concrete information can
possibly be had. The rationale of a direction under Section
438(1) is the belief of the applicant founded on
reasonable
grounds that he may be arrested for a non-bailable
offence. It is unrealistic to expect the applicant to draw up
his application with the meticulousness of a pleading in a
civil case and such is not requirement of the section. But
specific events and facts must be disclosed by the applicant
in order to enable the court to judge of the reasonableness
of his belief, the existence of which is the sine qua non of
the exercise of power conferred by the section.
41. Apart from the fact that the very language of the statute
compels this construction, there is an important principle
involved in the insistence that facts, on the basis of which
a direction under Section 438(1) is sought, must be clear
and specific, not vague and general. It is only by the
observance of that principle that a possible conflict between
A
B
C
D
E
F
G
H
65
the right of an individual to his liberty and the right of the
police to investigate into crimes reported to them can be
avoided. A blanket order of anticipatory bail is bound to
cause serious interference with both the right and the duty
of the police in the matter of investigation because,
regardless of what kind of offence is alleged to have been
committed by the applicant and when, an order of bail
which comprehends allegedly unlawful activity of any
description whatsoever, will prevent the police from
arresting the applicant even if he commits, say, a murder
in the presence of the public. Such an order can then
become a charter of lawlessness and a weapon to stifle
prompt investigation into offences which could not possibly
be predicated when the order was passed. Therefore, the
court which grants anticipatory bail must take care to
specify the offence or offences in respect of which alone
the order will be effective. The power should not be
exercised in a vacuum.
42. There was some discussion before us on certain minor
modalities regarding the passing of bail orders under
Section 438(1). Can an order of bail be passed under the
section without notice to the Public Prosecutor? It can be.
But notice should issue to the Public Prosecutor or the
Government Advocate forthwith and the question of bail
should be re-examined in the light of the respective
contentions of the parties. The ad interim order too must
conform to the requirements of the section and
suitable
conditions should be imposed on the applicant even at that
stage. Should the operation of an order passed under
Section 438(1) be limited in point of time? Not necessarily.
The court may, if there are reasons for doing so, limit the
operation of the order to a short period until after the filing
of an FIR in respect of the matter covered by the order.
The applicant may in such cases be directed to obtain an
order of bail under Section 437 or 439 of the Code within
a reasonably short period after the filing of the FIR as
aforesaid. But this need not be followed as an invariable
rule. The normal rule should be not to limit the operation
of the order in relation to a period of time.
SUSHILA AGGARWAL v. STATE (NCT OF DELHI)
[S. RAVINDRA BHAT, J.]
A
B
C
D
E
F
G
H
66
SUPREME COURT REPORTS
[2020] 2 S.C.R.
43. During the last couple of years this Court, while dealing
with appeals against orders passed by various High
Courts, has granted anticipatory bail to many a person by
imposing conditions set out in Section 438(2) (i), (ii) and
(iii). The court has, in addition, directed in most of those
cases that (a) the applicant should surrender himself to
the police for a brief period if a discovery is to be made
under Section 27 of the Evidence Act or that he should be
deemed to have surrendered himself if such a discovery is
to be made. In certain exceptional cases, the court has, in
view of the material placed before it, directed that the order
of anticipatory bail will remain in operation only for a
week or so until after the filing of the FIR in respect of
matters covered by the order. These orders, on the whole,
have worked satisfactorily, causing the least inconvenience
to the individuals concerned and least interference with
the investigational rights of the police. The court has
attempted through those orders to strike a balance between
the individual’s right to personal freedom and the
investigational rights of the police. The appellants who
were refused anticipatory bail by various courts have long
since been released by this Court under Section 438(1) of
the Code.”
8. The judgment in Sibbia was understood and no apprehensions
were reflected about the duration of anticipatory bail orders, in the next
decade and a
half. While so, in Salauddin Abdulsamad Shaikh V. State
of Maharashtra, (1996) 1 SCC 667 for the first time, a discordant note
appears to have been struck. It was stated in Salauddin (supra) that
grant of anticipatory bail should not mean that the regular court, which is
to try the offender, would be “bypassed”. This court approved the
approach of the High Court, which had fixed the outer date for the
continuance of the bail and further directed that the petitioner, upon expiry,
should move the regular court of bail. Saluddin further held that the
procedure followed by the High Court was correct, because:
“it must be realised that when the Court of Session or the
High Court is granting 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
A
B
C
D
E
F
G
H
67
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 charge-sheet is submitted”.”
9. The approach and reasoning in Salauddin was applied and
reiterated by this Court, in K.L. Verma v. State12. That decision
(K.L. Verma) further explained the scope of the provision that till the
regular bail application of an accused, enjoying protection under Section
438 is pending before the regular court he need not surrender and his
protection will continue till the disposal of the regular bail application
under Section 437 or Section 439, and that she or he has to move an
application (for regular bail) after expiry of a certain duration as directed
by the Court or if the Charge-sheet is submitted because regular courts
cannot be bypassed. It was held, in K.L. Verma that:
“3....This Court further observed that anticipatory bail is
granted in anticipation of arrest in non- bailable cases, but
that does not mean that the regular court, which is to try the
offender, is sought to be bypassed...By this, what the Court
desired to convey was that an order of anticipatory bail does
not enure till the end of trial but it must be of limited duration
as the regular court cannot be bypassed. The limited duration
must be determined having regard to the facts of the case and
the need to give the accused sufficient time to move the regular
court for bail and to give the regular court sufficient time to
determine the bail application. In other words, till the bail
application is disposed of one way or the other the court may
allow the accused to remain on anticipatory bail. ….. 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 Salauddin case
[(1996) 1 SCC 667] has to be so understood.”
10. Again, Sunita Devi; Nirmal Jeet Kaur and Adri Dharan
Das (supra) are three later decisions where this court applied the ratio
12 1998 (9) SCC  348
SUSHILA AGGARWAL v. STATE (NCT OF DELHI)
[S. RAVINDRA BHAT, J.]
A
B
C
D
E
F
G
H
68
SUPREME COURT REPORTS
[2020] 2 S.C.R.
in Salauddin and echoed the concern that the “ protective umbrella” of
Section 438 cannot be extended beyond the time period indicated in the
previous case (Salauddin) or till the applicant avails remedies up to
high courts and that doing so would mean that the regular court would
be bypassed. The court reiterated that Section 439 would be rendered a
dead letter if the applicant is allowed the benefit of an order under Section
438 till, he avails the remedy of regular bail up to higher courts. In HDFC
Bank Ltd. v. J.J. Mannan,13 this court followed and applied the reasoning
in Salauddin, to the extent that certain limitations must be imposed,
while granting anticipatory bail. A new axiom too was added, that if the
police “made out” a case against the applicant and his name was included
as an “accused in the charge-sheet, the accused has to surrender to
the custody of the court and pray for regular bail. On the strength
of an order granting anticipatory bail, an accused against whom
charge has been framed, cannot avoid appearing before the trial
court..” The court observed that:
“19. The object of Section 438 CrPC has been repeatedly
explained by this Court and the High Courts to mean that a
person should not be harassed or humiliated in order to satisfy
the grudge or personal vendetta of the complainant. But at
the same time the provisions of Section 438 Cr PC cannot
also be invoked to exempt the accused from
surrendering to
the court after the investigation is complete and if charge-
sheet is filed against him. Such an interpretation would amount
to violence to the provisions of Section 438 Cr PC, since even
though a charge-sheet may be filed against an accused and
charge is framed against him, he may still not appear before
the court at all even during the trial.
20. Section 438 CrPC contemplates arrest at the stage of
investigation and provides a mechanism for an accused to be
released on bail should he be arrested during the period of
investigation. Once the investigation makes out a case against
him and he is included as an accused in the charge-sheet, the
accused has to surrender to the custody of the court and pray
for regular bail. On the strength of an order granting
anticipatory bail, an accused against whom charge has been
framed, cannot avoid appearing before the trial court.”
13 2010 (1) SCC 679
A
B
C
D
E
F
G
H
69
11. In the light of these decisions, which narrowed the scope and
jurisdiction under Section 438, the judgment in Mhetre noticed that Sibbia
was by a Bench of five judges, which indicated that imposition of
restrictions for granting anticipatory bail was not always necessary. The
court, in Mhetre observed as follows:
“... Those orders are contrary to the law laid down by the
judgment of the Constitution Bench in Sibbia’s case (supra).
According to the report of the National Police Commission,
the power of arrest is grossly abused and clearly violates the
personal liberty of the people, as enshrined under Article 21
of the Constitution, then the courts need to take serious notice
of it. When conviction rate is admittedly less than 10%, then
the police should be slow in arresting the accused. The courts
considering the bail application should try to maintain fine
balance between the societal interest vis-à-vis personal liberty
while adhering to the fundamental principle of criminal
jurisprudence that the accused that the accused is presumed
to be innocent till he is found guilty by the competent court.
94. The complaint filed against the accused needs to be
thoroughly examined including the aspect whether the
complainant has filed false or frivolous complaint on earlier
occasion. The court should also examine the fact whether
there is any family dispute between the accused and the
complainant and the complainant must be clearly told that if
the complaint is
found to be false or frivolous, then strict
action will be taken against him in accordance with law. If
the connivance between the complainant and the investigating
officer is established then action be taken against the
investigating officer in accordance with law.
95. The gravity of charge and exact role of the accused must
be properly comprehended. Before arrest, the arresting officer
must record the valid reasons which have led to the arrest of
the accused in the case diary. In exceptional cases the reasons
could be recorded immediately after the arrest, so that while
dealing with the bail application, the remarks and
observations of the arresting officer can also be properly
evaluated by the court.
SUSHILA AGGARWAL v. STATE (NCT OF DELHI)
[S. RAVINDRA BHAT, J.]
A
B
C
D
E
F
G
H
70
SUPREME COURT REPORTS
[2020] 2 S.C.R.
96. It is imperative for the courts to carefully and with
meticulous precision evaluate the facts of the case. The
discretion must be exercised on the basis of the available
material and the facts of the particular case. In cases where
the court is of the considered view that the accused has joined
investigation and he is fully cooperating with the investigating
agency and is not likely to abscond, in that event, custodial
interrogation should be avoided.
97. A great ignominy, humiliation and disgrace is attached to
the arrest. Arrest leads to many serious consequences not only
for the accused but for the entire family and at times for the
entire community. Most people do not make any distinction
between arrest at a pre-conviction stage or post-conviction
stage. Whether the powers under section 438 Cr.P.C. are
subject to limitation of section 437 Cr.P.C.?
98. The question which arises for consideration is whether
the powers under section 438 Cr.P.C. are unguided or
uncanalised or are subject to all the limitations of section
437 Cr.P.C.? The Constitution Bench in Sibbia’s case (supra)
has clearly observed that there is no justification for reading
into section 438 Cr.P.C. and the limitations mentioned in
section 437 Cr.P.C. The Court further observed that the
plentitude of the section must be given its full play. The
Constitution Bench has also observed that the High Court is
not right in observing that the accused
must make out a
“special case” for the exercise of the power to grant
anticipatory bail. This virtually, reduces the salutary power
conferred by section 438 Cr.P.C. to a dead letter. The Court
observed that “We do not see why the provisions of Section
438 Cr.P.C. should be suspected as containing something
volatile or incendiary, which needs to be handled with the
greatest care and caution imaginable.”
99. As aptly observed in Sibbia’s case (supra) that a wise
exercise of judicial power inevitably takes care of the evil
consequences which are likely to flow out of its intemperate
use. Every kind of judicial discretion, whatever may be the
nature of the matter in regard to which it is required to be
exercised, has to be used with due care and caution. In fact,
A
B
C
D
E
F
G
H
71
an awareness of the context in which the discretion is required
to be exercised and of the reasonably foreseeable
consequences of its use, is the hallmark of a prudent exercise
of judicial discretion. One ought not to make a bugbear of
the power to grant anticipatory bail.
100. The Constitution Bench in the same judgment also
observed that a person seeking anticipatory bail is still a free
man entitled to the presumption of innocence. He is willing to
submit to restraints and conditions on his freedom, by the
acceptance of conditions which the court may deem fit to
impose, in consideration of the assurance that if arrested, he
shall enlarged on bail.
101. The proper course of action ought to be that after
evaluating the averments and accusation available on the
record if the court is inclined to grant anticipatory bail then
an interim bail be granted and notice be issued to the public
prosecutor. After hearing the public prosecutor the court may
either reject the bail application or confirm the initial order
of granting bail. The court would certainly be entitled to
impose conditions for the grant of bail. The public prosecutor
or complainant would be at liberty to move the same court
for cancellation or modifying the conditions of bail any time
if liberty granted by the court is misused. The bail granted by
the court should ordinarily be continued till the trial of the
case.
102. The order granting anticipatory bail for a limited
duration and thereafter
directing the accused to surrender
and apply before a regular bail is contrary to the legislative
intention and the judgment of the Constitution Bench in
Sibbia’s case (supra).
103. It is a settled legal position that the court which grants
the bail also has the power to cancel it. The discretion of
grant or cancellation of bail can be exercised either at the
instance of the accused, the public prosecutor or the
complainant on finding new material or circumstances at any
point of time.
SUSHILA AGGARWAL v. STATE (NCT OF DELHI)
[S. RAVINDRA BHAT, J.]
A
B
C
D
E
F
G
H
72
SUPREME COURT REPORTS
[2020] 2 S.C.R.
104. The intention of the legislature is quite clear that the
power of grant or refusal of bail is entirely discretionary. The
Constitution Bench in Sibbia’s case (supra) has clearly stated
that grant and refusal is discretionary and it should depend
on the facts and circumstances of each case. The Constitution
Bench in the said case has aptly observed that we must respect
the wisdom of the Legislature entrusting this power to the
superior courts namely, the High Court and the Court of
Session. The Constitution Bench observed as under:
“We would, therefore, prefer to leave the High Court and
the Court of Session to exercise their jurisdiction under
Section 438 by a wise and careful use of their discretion
which, by their long training and experience, they are
ideally suited to do. The ends of justice will be better served
by trusting these courts to act objectively and in
consonance with principles governing the grant of bail
which are recognized over the years, than by divesting them
of their discretion which the legislature has conferred upon
them, by laying down inflexible rules of general
application. It is customary, almost chronic, to take a statute
as one finds it on the grounds that, after all “the legislature
in, its wisdom” has thought it fit to use a particular
expression. A convention may usefully grow whereby the
High Court and the Court of Session may be trusted to
exercise their discretionary powers in
their wisdom,
especially when the discretion is entrusted to their care by
the legislature in its wisdom. If they err, they are liable to
be corrected.”
GRANT OF BAIL FOR LIMITED PERIOD IS CONTRARY TO
THE LEGISLATIVE INTENTION AND LAW DECLARED BY
THE CONSTITUTION BENCH:
105. The court which grants the bail has the right to cancel
the bail according to the provisions of the General Clauses
Act but ordinarily after hearing the public prosecutor when
the bail order is confirmed then the benefit of the grant of the
bail should continue till the end of the trial of that case.
106. The judgment in Salauddin Abdulsamad Shaikh (supra)
is contrary to legislative intent and the spirit of the very
A
B
C
D
E
F
G
H
73
provisions of the anticipatory bail itself and has resulted in
an artificial and unreasonable restriction on the scope of
enactment contrary to the legislative intention.
107. The restriction on the provision of anticipatory bail under
section 438 Cr.P.C. limits the personal liberty of the accused
granted under Article 21 of the constitution. The added
observation is nowhere found in the enactment and bringing
in restrictions which are not found in the enactment is again
an unreasonable restriction. It would not stand the test of
fairness and reasonableness which is implicit in Article 21 of
the Constitution after the decision in Maneka Gandhi’s case
(supra) in which the court observed that in order to meet the
challenge of Article 21 of the Constitution the procedure
established by law for depriving a person of his liberty must
be fair, just and reasonable.
108. Section 438 Cr.P.C. does not mention anything about
the duration to which a direction for release on bail in the
event of arrest can be granted. The order granting anticipatory
bail is a direction specifically to release the accused on bail
in the event of his arrest. Once such a direction of
anticipatory bail is executed by the accused and he is released
on bail, the concerned court would be fully justified in
imposing conditions including direction of joining
investigation.
109. The court does not use the expression ‘anticipatory bail’
but it provides for issuance of direction for the release on
bail by the High Court or the Court of Sessions in the event
of arrest. According to the aforesaid judgment of Salauddin’s
case, the accused has to surrender before the trial court and
only thereafter he/she can make prayer for grant of bail by
the trial court. The trial court would release the accused only
after he has surrendered.
110. In pursuance to the order of the Court of Sessions or the
High Court, once the accused is released on bail by the trial
court, then it would be unreasonable to compel the accused
to surrender before the trial court and again apply for regular
bail.
SUSHILA AGGARWAL v. STATE (NCT OF DELHI)
[S. RAVINDRA BHAT, J.]
A
B
C
D
E
F
G
H
74
SUPREME COURT REPORTS
[2020] 2 S.C.R.
111. The court must bear in mind that at times the applicant
would approach the court for grant of anticipatory bail on
mere apprehension of being arrested on accusation of having
committed a non-bailable offence. In fact, the investigating
or concerned agency may not otherwise arrest that applicant
who has applied for anticipatory bail but just because he
makes an application before the court and gets the relief from
the court for a limited period and thereafter he has to surrender
before the trial court and only thereafter his bail application
can be considered and life of anticipatory bail comes to an
end. This may lead to disastrous and unfortunate
consequences. The applicant who may not have otherwise
lost his liberty loses it because he chose to file application of
anticipatory bail on mere apprehension of being arrested on
accusation of having committed a non-bailable offence. No
arrest should be made because it is lawful for the police officer
to do so. The existence of power to arrest is one thing and the
justification for the exercise of it is quite another. The police
officer must be able to justify the arrest apart from his power
to do so. This finding of the said judgment (supra) is contrary
to the legislative intention and law which has been declared
by a Constitution Bench of this court in Sibbia’s case (supra).
112. The validity of the restrictions imposed by the Apex Court,
namely, that the accused
released on anticipatory bail must
submit himself to custody and only thereafter can apply for
regular bail . This is contrary to the basic intention and spirit
of section 438 Cr.P.C. It is also contrary to Article 21 of the
Constitution. The test of fairness and reasonableness is implicit
under Article 21 of the Constitution of India. Directing the
accused to surrender to custody after the limited period
amounts to deprivation of his personal liberty.
113. It is a settled legal position crystallized by the Constitution
Bench of this court in Sibbia’s case (supra) 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.
114. It is unreasonable to lay down strict, inflexible and rigid
rules for exercise of such discretion by limiting the period of
A
B
C
D
E
F
G
H
75
which an order under this section could be granted. We deem
it appropriate to reproduce some observations of the judgment
of the Constitution Bench of this court in the Sibbia’s case
(supra)…”
*********************
*****************
121. No inflexible guidelines or straitjacket formula can be
provided for grant or refusal of anticipatory bail. We are
clearly of the view that no attempt should be made to provide
rigid and inflexible guidelines in this respect because all
circumstances and situations of future cannot be clearly
visualized for the grant or refusal of anticipatory bail . In
consonance with the legislative intention the grant or refusal
of anticipatory bail should necessarily depend on facts and
circumstances of each case. As aptly observed in the
Constitution Bench decision in Sibbia’s case (supra) that the
High Court or the Court of Sessions to exercise their
jurisdiction under section 438 Cr.P.C. by a wise and careful
use of their discretion which by their long training and
experience they are ideally suited to do. In any event, this is
the legislative mandate which we are bound to respect and
honour.
122. The following factors and parameters can be taken into
consideration while dealing with the anticipatory bail:
i. The nature and gravity of the accusation and the exact role
of the accused must be properly comprehended before arrest
is made;
ii. The antecedents of the applicant including the fact as to
whether the accused has previously
undergone imprisonment
on conviction by a Court in respect of any cognizable offence;
iii. The possibility of the applicant to flee from justice;
iv. The possibility of the accused’s likelihood to repeat similar
or the other offences.
v. Where the accusations have been made only with the object
of injuring or humiliating the applicant by arresting him or
her.
SUSHILA AGGARWAL v. STATE (NCT OF DELHI)
[S. RAVINDRA BHAT, J.]
A
B
C
D
E
F
G
H
76
SUPREME COURT REPORTS
[2020] 2 S.C.R.
vi. Impact of grant of anticipatory bail particularly in cases
of large magnitude affecting a very large number of people.
vii. The courts must evaluate the entire available material
against the accused very carefully. The court must also clearly
comprehend the exact role of the accused in the case. The
cases in which accused is implicated with the help of sections
34 and 149 of the Indian Penal Code, the court should
consider with even greater care and caution because over
implication in the cases is a matter of common knowledge
and concern;
viii. While considering the prayer for grant of anticipatory
bail, a balance has to be struck between two factors namely,
no prejudice should be caused to the free, fair and full
investigation and there should be prevention of harassment,
humiliation and unjustified detention of the accused;
ix. The court to consider reasonable apprehension of
tampering of the witness or apprehension of threat to the
complainant;
x. Frivolity in prosecution should always be considered and
it is only the element of genuineness that shall have to be
considered in the matter of grant of bail and in the event of
there being some doubt as to the genuineness of the
prosecution, in the normal course of events, the accused is
entitled to an order of bail.
123. The arrest should be the last option and it should be
restricted to those exceptional cases where arresting the
accused is imperative in the facts
and circumstances of that
case.
124. The court must carefully examine the entire available
record and particularly the allegations which have been
directly attributed to the accused and these allegations are
corroborated by other material and circumstances on record.
125. These are some of the factors which should be taken
into consideration while deciding the anticipatory bail
applications. These factors are by no means exhaustive but
they are only illustrative in nature because it is difficult to
A
B
C
D
E
F
G
H
77
clearly visualize all situations and circumstances in which a
person may pray for anticipatory bail. If a wise discretion is
exercised by the concerned judge, after consideration of entire
material on record then most of the grievances in favour of
grant of or refusal of bail will be taken care of. The legislature
in its wisdom has entrusted the power to exercise this
jurisdiction only to the judges of the superior courts. In
consonance with the legislative intention we should accept
the fact that the discretion would be properly exercised. In
any event, the option of approaching the superior court
against the court of Sessions or the High Court is always
available.”
12. These seemingly incongruent strands of reasoning- stemming
from the two distinct line of precedents, spawning divergent approaches
to the scope of jurisdiction under Section 438 have impelled the reference
to this larger Bench.
The provisions
13. For completeness, it is essential to set out the relevant
provisions: to wit, Sections 437, 438 and 439 of the Code of Criminal
Procedure, 1974 (hereafter variously “Cr.PC” and “the Code”). They
are reproduced in the footnote below.14
14"437. When bail may be taken in case of non- bailable offence.
(1) When any person accused of, or suspected of, the commission of any non-
bailable offence is arrested or detained without warrant by an officer in charge
of a police station or appears or is brought before a Court other than the High
Court or Court
of Session, he may be released on bail, but-
(i) such person shall not be so released if there appear reasonable grounds for
believing that he has been guilty of an offence punishable with death or
imprisonment for life;
(ii) such person shall not be so released if such offence is a cognizable offence
and he had been previously convicted of an offence punishable with death,
imprisonment for life or imprisonment for seven years or more, or he had been
previously convicted on two or more occasions of a  cognizable offence punishable
with imprisonment for three years or more but not less than seven years.
Provided that the Court may direct that a person referred to in clause (i) or
clause (ii) be released on bail if such person is under the age of sixteen years or
is a woman or is sick or infirm.
SUSHILA AGGARWAL v. STATE (NCT OF DELHI)
[S. RAVINDRA BHAT, J.]
A
B
C
D
E
F
G
H
78
SUPREME COURT REPORTS
[2020] 2 S.C.R.
Provided further that the Court may also direct that a person referred to in
clause (ii) be released on bail if it is satisfied that it is just and proper so to do
for any other special reason.
Provided also that the mere fact that an accused person may be required for
being identified by witnesses during investigation shall not be sufficient ground
for refusing to grant bail if he is otherwise entitled to be released on bail and
gives an undertaking that he shall comply with such directions as may be given
by the Court.
Provided  also that no person shall if the offence alleged to have been committed
by him is punishable with death imprisonment for life or imprisonment for
seven years or more be released on bail by the Court under this sub-section
without giving an opportunity of hearing to the public prosecutor.
(2) If it appears to such officer or Court at any stage of the investigation, inquiry
or trial, as the case may be, that there are not reasonable grounds for believing
that the accused has committed a non- bailable offence, but that there are
sufficient grounds for further inquiry into hisguilt the accused shall, subject to
the provisions of section 446A and pending such inquiry, be released on bail or
at the discretion of such officer or Court, on the execution by him of a bond
without sureties for his appearance as hereinafter provided.
(3) When a person accused or suspected of the commission of an offence
punishable with imprisonment which may extend to seven years or more or of
an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal
Code (45 of 1860) or abetment of, or conspiracy or attempt to commit, any such
offence, is released on bail under sub-section (1), the Court shall impose the
conditions-
(a) that such person shall attend in accordance with the conditions of the bond
executed under this Chapter, or
(b)  that such person shall not commit an offence similar to the offence of which
he is accused or suspected of the commission of which he is suspected, and
(c)  that such person shall not directly or indirectly make any inducement, threat
or promise to any person acquainted with the facts of the case so as to dissuade
him for disclosing such facts to the Court or to any police officer or tamper with
the evidence,and may also impose in the interest of justice such other conditions
as it considers necessary.
(4) An officer or a Court releasing any person on bail under sub- section (1) or
sub- section (2), shall record in writing his or its reasons or special reasons for
so doing.
(5) Any Court which has released a person on bail under sub- section (1) or
sub- section (2), may, if it considers it necessary so to do, direct that such person
be arrested and commit him to custody.
(6) If, in any case triable by a Magistrate, the trial of a person accused of any
non- bailable offence is not concluded within a period of sixty days from the first
date fixed
for taking evidence in the case, such person shall, if he is in custody
A
B
C
D
E
F
G
H
79
during the whole of the said period, be released on bail to the satisfaction of the
Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise
directs.
(7) If, at any time after the conclusion of the trial of a person accused of a non-
bailable offence and before judgment is delivered, the Court is of opinion that
there are reasonable grounds for believing that the accused is not guilty of any
such offence, it shall release the accused, if he is in custody, on the execution by
him of a bond without sureties for his appearance to hear judgment delivered.
438. Direction for grant of bail to person apprehending arrest.
(1) When any person has reason to believe that he may be arrested on an
accusation of having committed a non- bailable offence, he may apply to the
High Court or the Court of Session for a direction under this section; and that
Court may, if it thinks fit, direct that in the event of such arrest, he shall be
released on bail.*
* By amendment, made in 2005, Subsection (1) has been substituted as
follows (the amended portion is brackets; the amendment has not yet
been brought into force):
——————————————————————————————————
[“(1) Where any person has reason to believe that he may be arrested on
accusation of having committed a non- bailable offence, he may apply to the
High Court or the Court of Session for a direction under this section;  that in the
event of such arrest, he shall be released on bail and the Court may
after taking
into consideration inter- alia the following factors namely.
(i)  the nature and gravity of the accusation
(ii) the antecedents of the applicant including the fact as to whether he has
previously undergone imprisonment on conviction by a Court in respect of any
cognizable offence
(iii) the possibility of the applicant to flee from justice and
(iv) where the accusation has been made with the object of injuring or humiliating
the applicant by having him so arrested,either reject the application forthwith
or issue an interim order for the grant of anticipatory bail.
Provided that where the High Court or as the case may be the Court of Session
has not passed any interim order under this sub-section or has rejected the
application for grant of anticipatory bail it shall be open to an officer in charge
of police station to arrest without warrant the applicant on the basis of the
accusation apprehended in such application
(IA) Where the Courts grants an interim order under sub-section (1), it shall
forthwith cause a notice being not less than seven days notice, together with the
copy of such order to be served on the Public Prosecutor and the Superintendent
of Police, with a view to give the Public Prosecutor a reasonable opportunity of
being heard when the application shall be finally heard by the Court
SUSHILA AGGARWAL v. STATE (NCT OF DELHI)
[S. RAVINDRA BHAT, J.]
A
B
C
D
E
F
G
H
80
SUPREME COURT REPORTS
[2020] 2 S.C.R.
(IB) The presence of the applicant seeking anticipatory bail shall be obligatory
at the time of final hearing of the application and passing of final order by the
Court, if on an application made to it by the Public Prosecutor, the Court
considers such presence necessary in the interest of justice.]
——————————————————————————————————
The unamended portion- Section 438 (2) and (3), and the newly introduced
sub-section (4) read as follows:
(2) When the High Court or the Court of Session makes a direction under sub-
section (1), it may include such conditions in such directions in the light of the
facts of the particular case, as it may think fit, including-
(i) a condition that the person shall make himself available for interrogation by
a police officer as and when required;
(ii) a condition that the person shall not, directly or indirectly, make any
inducement, threat or promise to any person acquainted with the facts of the
case so as to dissuade him from disclosing such facts to the Court or to any
police officer;
(iii) a condition that the person shall not leave India without the previous
permission of the Court;
(iv) such other condition as may be imposed under sub- section (3) of section
437, as if the bail were granted under that section.
(3) If such person is thereafter arrested without warrant by an officer in charge
of a police station on such accusation, and is prepared either at the time of
arrest or at any
time while in the custody of such officer 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).
(4) Nothing in this Section shall apply to any case involving the arrest of any
person on accusation of having committed an offence under sub-Section (3) of
Section 376 or Section 376 AB or Section 376 DA or Section 376 DB of the
Indian Penal Code, (45 of 1860).
439. Special powers of High Court or Court of Session regarding bail.
(1) A High Court or Court of Session may direct-
(a) that any person accused of an offence and in custody be released on bail, and
if the offence is of the nature specified in subsection (3) of Section 437, may
impose any condition which it considers necessary for the purposes mentioned
in that sub- section;
(b) that any condition imposed by a Magistrate when releasing an person on
bail be set aside or modified:
Provided that the High Court or the Court of Session shall, before granting bail
to a person who is accused of an offence which is triable exclusively by the Court
A
B
C
D
E
F
G
H
81
of Session or which, though not so triable, is punishable with imprisonment for
life, give notice of the application for bail to the Public Prosecutor unless it is,
for reasons to be recorded in writing, of opinion that it is not practicable to give
such notice.
Provided further that the High Court or the Court of Session shall before
granting bail to a person who is an accused of an offence triable under sub-
Section (3) of Section 376 or Section 376 AB or Section 376 DA or Section 376
DB of the Indian Penal Code (45 of 1860) give notice of the application for bail
to the Public Prosecutor within a period of fifteen days from the date of receipt
of the notice of such application.
(IA) The presence of the informant or any person authorised by him shall be
obligatory at the time of hearing of the application for bail to the person under
sub-Section (3) of the Section 376 or Section 376 AB or Section 376 DA or
Section 376 DB of the Indian Penal Code (45 of 1860)
 (2). A High Court or Court of Session may direct that any person who has been
released on bail under this Chapter be arrested and commit him to custody.”
Contentions of parties
14. Mr. Abhay Kumar, for the petitioner, argued that it is not correct
to find any limitation on the life span of an order of anticipatory bail in
terms of its duration by reading the para 42 of Sibbia Case; and that the
life of anticipatory bail is coterminous with the life of criminal case,
whether the criminal case gets
over either at the stage of trial or before
it, in a given case. He further urged that personal liberty is a cherished
freedom, even more important than the other freedoms guaranteed under
the Constitution. The Constitution framers therefore enacted safeguards
in Article 22 in the Constitution to limit the power of the State to detain a
person without trial, which may otherwise pass the test of Article 21, by
humanizing the harsh authority over individual liberty.
15. It is submitted, therefore that the substantive constitutional
right of personal liberty can be denied or curtailed only in accordance
with the procedure established by a law that is fair, just and reasonable.
That substantial right is procedurally enforced, apart from others, in terms
of grant of Bail to an accused in a criminal case. Chapter XXXIII of the
Code contains elaborate provisions relating to grant of bail. Bail is granted
to one who is arrested in a non-bailable offence or has been convicted
of an offence after trail. The effect of granting bail is to release the
accused from internment though the court would still retain constructive
control over him through the sureties. In case the accused is released on
his own bond such constructive control could still be exercised through
the conditions of the bond secured from him. “Bail” literally means surety.
SUSHILA AGGARWAL v. STATE (NCT OF DELHI)
[S. RAVINDRA BHAT, J.]
A
B
C
D
E
F
G
H
82
SUPREME COURT REPORTS
[2020] 2 S.C.R.
16. The literal meaning of the word “bail” is surety. Counsel
referred to the meaning of “bail” in Halsbury’s Laws of England
(Halsbury’s Laws of England, 4th Edn., Vol. 11, para 166), and
submitted that it is aimed at placing the accused in the custody of his
sureties who are bound to produce him to appear at his trial.15 Upon
grant of bail, the accused is mandated to furnish bond and bail-bond for
attendance before officer in charge of police station or Court in terms of
prescribes format of Form No. 45 of Schedule 2 of the Code by giving
necessary details. Bail, it was highlighted, can be given at any stage:
pre-trial, during trial and even after completion of trial. Counsel submitted
that apart from provisions in Chapter XXXII of Cr.PC (Sections 436-
450), there are other provisions relevant on the issue, i.e. Section 360
(Order to release on probation of good conduct or after admonition, a
post-conviction stage and Section389 (Suspension of sentence pending
the appeal and release of appellant on bail - postconviction and during
pendency of Appeal). Section 438 manifests the principle of liberty.
17. Counsel highlighted that anticipatory bail is panacea for
apprehension of arrest in false case. Anticipatory bail protects from
trauma and stigma of arrest of an innocent (in most of the cases, full of
various responsibilities and even being sole bread earner of her/his family
members), consequently prohibiting in
creating reverse victims by way
of dependent upon the said accused. An elementary postulate of criminal
jurisprudence is the presumption of innocence, meaning thereby that a
person is believed to be innocent until found guilty. However, there are
instances in our criminal law where a reverse onus is placed on an accused
with regard to some specific offences but that is another matter and
does not detract from the fundamental postulate in respect of other
offences. Yet another important facet of our criminal jurisprudence is
that the grant of bail is the general rule and putting a person in jail or in a
prison or in a correction home (whichever expression one may wish to
use) is an exception. Counsel relied on Dataram Singh v. State of U.P
(2018) 3 SCC 22).
15 Halsbury’s Laws of England (4th Edn., Vol. 11, para 166): “The effect of granting bail
is not to set the defendant (accused) at liberty but to release him from the custody of law
and to entrust him to the custody of  his sureties who are bound to produce him to
appear at  his trial at a specified time and place. The sureties may seize their principal
at any time and may discharge themselves by handing him over to the custody of law
and he will then be imprisoned.”
A
B
C
D
E
F
G
H
83
18. Counsel submitted that the provision in Section 438 read with
Section 439 (2) of the Code, contain clear guidelines and limitations. It
was highlighted that the discretion to impose (or not impose) condition is
left to the concerned court and the Code therefore cannot be interpreted
to cut short its duration either till filing of charge-sheet or unearthing of
alleged fresh materials during investigation. It is submitted that the power
to curtail or to diminish, the duration of anticipatory bail, in a suitable
case, is governed by Section 439(2) of the Code in the same manner
which is enumerated in Section 437 of the Code (which is applicable to
a Court other than High Court or Court of Session). The counsel urged
that there have been instances of courts passing orders, including in
some of the orders/judgments of this Court, wherein denial of anticipatory
bail is followed by direction to accused to surrender and seek regular
bail. This, counsel highlighted, is not based on any sound rationale.
19. Mr. C.S.N. Mohan Rao, learned counsel, emphasized that
arrest of an accused, is governed, by Sections 41-46 of the Code. The
arrest of an accused, is required, if at all, broadly for unearthing the truth
of the case during investigation (a choice of the investigating agency)
and to secure the presence of accused during trial, for free and fair trial
including exclusion of any possibility of influencing of witnesses/and
tampering of evidence or aborting a
trial by absconding (prerogative of
the trail court) or any other means or method known or unknown.
Therefore, whether an accused has to be arrested and kept in custody
and remains in that state of physical confinement, ideally is to be the
domain of the prosecuting agency and /or of trying Court. There are
sufficient methods enlisted in the Code to ensure this end by both i.e. the
prosecuting agency including complainant/victim and also to the concerned
court- by filing of cancellation of bail by former and issuance of bailable
and non-bailable warrant by the latter. Counsel argued that in any case,
rejection of an application for anticipatory bail, at first instance, does not
automatically give rise to evil consequences for an accused to surrender
and seek regular bail. The filing of subsequent anticipatory bail and grant
of the relief by a competent court of law in a suitable case, upon showing
proper and inspiring subsequent chance in circumstances in favour of
accused, is sufficient indicative factor of the proposition that a rejection
of anticipatory will generate no automatic warrant for an accused to
surrender and seek regular bail. If subsequent and material change or
circumstance can be a plausible reason for cancellation of bail, is should
definitely, considering the valuable right of an accused, equally there can
SUSHILA AGGARWAL v. STATE (NCT OF DELHI)
[S. RAVINDRA BHAT, J.]
A
B
C
D
E
F
G
H
84
SUPREME COURT REPORTS
[2020] 2 S.C.R.
be a reason for applying fresh application for anticipatory bail in a suitable
case. Having regard to all these factors, counsel urged this court to
endorse the reasoning in Mhetre which according to him is conformity
with the larger bench ruling in Sibbia, and accommodates the flexibilities
in the Code.
20. Mr. Rao relied on the observations in Gurcharan Singh v
State (Delhi Admn)16 to say that cancellation of anticipatory bail, when
warranted by the facts, is the answer where the fact situation requires
the applicant (who is beneficiary of an order under Section 438 CrPC)
rather than limiting the order of anticipatory bail. He also pointed out
observations in Gurcharan Singh (supra) to say that statutory bail (i.e.
where charge sheet is not filed in a case within the prescribed period of
60 or 90 days, leading to release by operation of Section 167 (2) of the
Code17) amounts to deemed bail under Chapter XXXIII of the Code:
“Under the first proviso to S.167 (2) no Magistrate shall
authorise the detention of an accused in custody under that
16 1978 (1) SCC 118. The observations are as follows:
“under Section 439 (2) of the new Code a High Court may commit a person released on
bail under Chapter XXXIII by any Court including the Court of Session to custody, if it
thinks appropriate to do so. It must, however, be made clear that a Court of Session
cannot cancel a bail which has already been granted by the High Court
unless new
circumstances arise during the progress of the trial after an accused person has been
admitted to bail by the High Court. If, however, a Court of Session had admitted an
accused person to bail, the State has two options. it may move the Sessions Judge if
certain new circumstances have arisen which were not earlier known to the State and
necessarily, therefore, to that Court. The State may as well approach the High Court
being the superior Court under Section 439 (2)  to commit the accused to custody. When,
however, the State is aggrieved by the order of the Sessions Judge granting bail and
there are no new circumstances that leave copied up except those already existed, it is
futile for the State to move the Sessions Judge again and it is competent in law to move
the High Court for cancellation of the bail. This position follows from the subordinate
position of the Court of Session vis-a- vis the High Court.”
17 Section 167 (2) CrPC reads as follows:
“(2) The Magistrate to whom an accused person is forwarded under this section may,
whether he has or has no jurisdiction to try the case, from time to time, authorise the
detention of the accused in such custody as such Magistrate thinks fit, for a term not
exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit
it for trial, and considers further detention unnecessary, he may order the accused to be
forwarded to a Magistrate having such jurisdiction: Provided that-
A
B
C
D
E
F
G
H
85
section for a total period exceeding 60 days on the expiry of
which the accused shall be released on bail if he is prepared
to furnish the same- This type of release under the proviso
shall be deemed to be a release under the provisions of Chapter
XXXIII relating to bail.”
21. It was submitted that the decisions in Aslam Babalal Desai v
State of Maharastra18 is an authority for the proposition that there can
be no cancellation of the bail granted, or deemed to be granted, under
Section 167 (2) merely upon the later filing of a charge sheet. The court
had observed as follows, in Aslam Babalal Desai (supra) in this context:
“It will thus be seen that once an accused person has been
released on bail by the thrust of the proviso to Section 167
(2), the mere fact that subsequent to his release a challan has
been filed is not sufficient to cancel his bail. In such a situation
his bail can be cancelled only if considerations germane to
cancellation of bail under Section 437 (5) or for that matter
Section 439 (2) exist. That is because the release of a person
under Section Section 167 (2) is equated to his release under
Chapter XXXIII of the Code.”
It was submitted that therefore, the mere filing of a charge sheet
per se cannot be an event which compels an accused who has the benefit
of anticipatory bail, to surrender and seek regular bail. The grounds for
cancellation of bail are to be made out, separately.
(a) the Magistrate may authorise the detention of the
accused person, otherwise than in
the custody of the police, beyond the period of fifteen days; if he is satisfied that adequate
grounds exist for doing so, but no Magistrate shall authorise the detention of the
accused person in custody under this paragraph for a total period exceeding,-
(i) ninety days, where the investigation relates to an offence punishable with
death, imprisonment for life or imprisonment for a term of not less than ten
years;
(ii) sixty days, where the investigation relates to any other offence, and, on the
expiry of the said period of ninety days, or sixty days, as the case may be, the
accused person shall be released on bail if he is prepared to and does furnish
bail, and every person released on bail under this sub- section shall be deemed
to be so released under the provisions of Chapter XXXIII for the purposes of
that Chapter;..”
18 1992 (4) SCC 272
SUSHILA AGGARWAL v. STATE (NCT OF DELHI)
[S. RAVINDRA BHAT, J.]