Sushila Aggarwal v. State (NCT of Delhi)

Reported case name: SUSHILA AGGARWAL AND OTHERS v. STATE (NCT OF DELHI) AND ANOTHER

Citation: [2020] 2 S.C.R. 1; 2020 INSC 106

Court: Supreme Court of India

Bench: ARUN MISHRA , INDIRA BANERJEE , VINEET SARAN, M.R. SHAH, S. RAVINDRA BHAT

Judgment date: 2020-01-29

Case summary

2020 INSC 106. Supreme Court of India judgment dated 2020-01-29. SUSHILA AGGARWAL AND OTHERS v. STATE (NCT OF DELHI) AND ANOTHER. Read the judgment and case...

Judgment text

[2020] 2 S. C. R. 1 1 SUSHILA AGGARWAL AND OTHERS A v. STATE (NCT OF DELHI) AND ANOTHER (Special Leave Petition (Criminal) Nos. 7281-7282 of 2017) B 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 C 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 D 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 E 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 F 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 G 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 – H 1 2 SUPREME COURT REPORTS [2020] 2 S. C. R. A 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 B 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 C 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, D 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. E 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 F 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 G 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] H SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 3 1.

2 Considering the decision of the Constitution Bench of A 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 B 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 C 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 D 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 E 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 F 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 G 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. H 4 SUPREME COURT REPORTS [2020] 2 S. C. R. A 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 B 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 C 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. D (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 : E [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 F 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 G 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, H SUSHILA AGGARWAL v.

STATE (NCT OF DELHI) 5 there was a sharp difference of opinion amongst the various High A 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 B 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 C 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 D 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 E 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 F 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, G 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 H 6 SUPREME COURT REPORTS [2020] 2 S. C. R. A 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 B 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 C 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 D 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 E 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 F 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 G 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 H SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 7 anticipatory bail. The requirement of imposing conditions is not A 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 B 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 C 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 D 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 E 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) F 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 G 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] H 8 SUPREME COURT REPORTS [2020] 2 S. C. R. A 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 B 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 C 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 D 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 E 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 F 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 - G 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. H SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 9 There can be no inflexible time frame for which an order of A 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. B 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) C 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 D 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 E 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 F 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 G 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) H 10 SUPREME COURT REPORTS [2020] 2 S. C. R. A 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 B 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, C 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 D 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] E 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 F 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: G (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 H SUSHILA AGGARWAL v.

STATE (NCT OF DELHI) 11 437 (3) read with Section 438 (2) should be imposed; if there are A 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 B 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] C 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 D 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. E 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 F 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 G 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: H 12 SUPREME COURT REPORTS [2020] 2 S. C. R. A 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] B 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] C 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) D 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 E 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 F 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) G 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] H SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 13 5 Suppl. SCR 677; Pradeep Ram v. State of Jharkhand (2019) A 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 B 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 C (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 D 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 E 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 st th th th rd th Commission of India- 41 , 48 , 154 , 177 , 203 and 268 F – referred to. th Halsbury’s Laws of England(Halsbury’s Laws of England 4 Edn. , Vol. 11, para 166); Codex Justinianus (or ‘Code Jus’) in Book 9 titled Title 3(2); Wharton’s Law Lexicon – referred to. G 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 H 14 SUPREME COURT REPORTS [2020] 2 S. C. R.

A 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. B 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 C 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 D (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: E 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 F 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. G (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. H SUSHILA AGGARWAL v.

STATE (NCT OF DELHI) 15 The following need to be kept in mind by courts, dealing A 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 B 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 C 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. D (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. E (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 F 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 G 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. H Likewise, conditions which limit the grant of anticipatory bail may 16 SUPREME COURT REPORTS [2020] 2 S. C. R.

A 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 B 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. C (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 D 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 E 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 F 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 G 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. ” H SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 17 (9) It is open to the police or the investigating agency to A 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 B 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 C 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. D (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 E 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 F 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 G 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. H 18 SUPREME COURT REPORTS [2020] 2 S. C. R. A 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.

B 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 C 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 D 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 E [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 F [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 G [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 H SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 19 IN THE JUDGMENT OF S. RAVINDRA BHAT, J. : A [1980] 3 SCR 383 relied on Para 3 [1995] 6 Suppl. SCR 556 overruled Para 4 (1998) 9 SCC 348 overruled Para 4 B [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 C [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 D [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 E [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 F [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 G [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 H 20 SUPREME COURT REPORTS [2020] 2 S. C. R. A [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 B [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 C (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 D [2011] 6 SCR 800 referred to Para 78 (2005) 8 SCC 21 referred to Para 78 IN THE JUDGMENT OF ARUN MISHRA, INDIRA BANERJEE E 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 F IN THE JUDGMENT OF PER CURIAM: [2011] 6 SCR 800 referred to Para 1(11) [2012] 5 SCR 1 referred to Para 1(11) G (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) H SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 21 (1998) 9 SCC 348 overruled Para 1(12) A [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) B [2009] 16 SCR 590 overruled Para 1(12) [2018] 3 SCR 739 overruled Para 1(12) [2007] 11 SCR 615 overruled Para 1(12) C 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. D 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 E 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. ) F 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 G 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. H 22 SUPREME COURT REPORTS [2020] 2 S. C. R. A 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 B 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 C 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 D “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, E 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 st that on the recommendation of the Law Commission of India in its 41 F 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 st submitted that the Law Commission of India in its 41 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 G 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 H SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 23 [M. R. SHAH, J. ] grounds for holding that a person accused of an offence is not likely to A 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 B 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 C 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 D 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 E 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 st Law Commission in its 41 Report.

Neither the section nor its marginal note so describes it but, the expression “anticipatory bail” is a convenient F 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 G 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 H 24 SUPREME COURT REPORTS [2020] 2 S. C. R.

A 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 B 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. C 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 D 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? E 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 F 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 G 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). H SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 25 [M. R. SHAH, J. ] 2.

6 It is further submitted by Shri Raval that in the subsequent A 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 B 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 C 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 D 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 E 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 F 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 G 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 H 26 SUPREME COURT REPORTS [2020] 2 S. C. R. A 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 B 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 C 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 D 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 E 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 F 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 G 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 H SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 27 [M. R. SHAH, J. ] where an accused is released on anticipatory bail, the investigation A 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 B 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; C 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. D 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 E 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 F 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, G 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 H 28 SUPREME COURT REPORTS [2020] 2 S. C. R. A 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) B 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 C 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 D 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 E 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 F 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. st 3.

4 Taking us to the recommendations in the 41 Report of the G 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. H SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 29 [M. R. SHAH, J. ] 3. 5 It is further submitted that even otherwise a bare reading of A 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 B 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; C 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 D 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. E 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 F 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 G 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 H 30 SUPREME COURT REPORTS [2020] 2 S. C. R. A 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 B 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 C 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 D 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 E 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 F 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 G 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 H SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 31 [M. R. SHAH, J. ] is submitted that in a case, with justifiable reasons, to be recorded in A 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 B 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 C 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 D 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 E 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 F 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 G 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 H 32 SUPREME COURT REPORTS [2020] 2 S. C. R. A 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. B 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/ C 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. D 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 E 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 F 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 G 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 H SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 33 [M. R. SHAH, J. ] granting anticipatory bail may, keeping in view the peculiar facts and A 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 B 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 C 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 D 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 E 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 F “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 G 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 H 34 SUPREME COURT REPORTS [2020] 2 S. C. R. A 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 B 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 C 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. D 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 E 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 F 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. G (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 H the power to grant anticipatory bail. SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 35 [M. R. SHAH, J.

] (5) Where a legitimate case for the remand of the offender to A 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 B 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. C (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 D (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 E 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 F which the legislature itself did not think it proper or necessary to impose. This is especially true when the statutor

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