[BAIL] Questions & Answers By Justice V. Ramkumar- Anticipatory Bail [Part-I]
Q.1 What are the judicially settled principles to be borne in mind in the matter of anticipatory bail ? Ans. In Sushila Agarwal v. State (NCT of Delhi) (2020) 5 SCC 1 – 5 Judges – Arun Mishra, Indira Banerjee, Vineeth Saran, M. R. Shah, S. Raveendra Bhat – JJ, a Constitution Bench of the Supreme Court of India laid down the following principles:-(a) The term...
Q.1 What are the judicially settled principles to be borne in mind in the matter of anticipatory bail ?
Ans. In Sushila Agarwal v. State (NCT of Delhi) (2020) 5 SCC 1 – 5 Judges – Arun Mishra, Indira Banerjee, Vineeth Saran, M. R. Shah, S. Raveendra Bhat – JJ, a Constitution Bench of the Supreme Court of India laid down the following principles:-
(a) The term “anticipatory bail” is used to convey that it is an application for bail in anticipation of arrest, i.e. before the arrest itself is made. (Per Ravindra Bhat - J vide paras 7, 23, 46 and 49). However, a person in whose favour a pre-arrest bail order is made under Section 438 Cr.P.C., has to be arrested and when arrested, he has to be released on bail. (Per M. R. Shah - J para 7).
(h) An order for 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 applicant who seeks and is granted pre-arrest bail order. (Vide unanimous view in para 92).
(i) The investigating officer would be free to take limited custody or deemed custody of the accused for the purpose of Section 27 of the Evidence Act invoking the principle in State of U.P. v. Deoman Upadhyaya AIR 1960 SC 1125 = 1960 Cri.L.J. 1504 (SC) = 1960 KHC 732 (SC) – 5 Judges – S. K. Das, J. L. Kapur, K. Subba Rao, M. Hidayatullah, J. C. Shah - JJ. However, there would be no need for separate surrender or a need for bail. (Vide unanimous view in para 92)
(j) The life or duration of an anticipatory bail order does not normally end with the time and stage when the accused is summoned by the Court or when the charges are framed, but can 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 to the Court to do so. (Vide unanimous view in para 92 – Per M. R. Shah – J in para 7; Per Ravindra Bhat – J concurring in para 76). Gurbaksh Singh Sibbia v. State of Punjab (1980) 2 SCC 565 = AIR 1980 SC 1632 – 5 Judges – Y. V. Chandrachud – CJI, P. N. Bhagwati, N. L. Untwalia, R. S. Pathak, O. Chinnappa Reddy – JJ, approved).
(k) It is open to the police or the investigating agency to move the Court concerned which granted anticipatory bail for a direction under Section 439 (2) Cr.P.C. to arrest the accused in the event of the violation of any term such as abscondence, non-cooperation with the investigation, evasion, intimidation or inducement to witnesses with a view to influence the outcome of the investigation or trial, as the case may be. (Vide unanimous view in para 92).
(l) The correctness of an order granting anticipatory bail can be considered by the appellate or superior court at the behest of the State or the investigating agency and such court can set aside the order on the ground that the court granting it did not take into consideration material facts or crucial circumstances. (Vide unanimous view in para 92).
Q.2 Is not the Sessions Court or the High Court entitled to pass a blanket order of anticipatory bail without specifying the offence or offences in respect of which the order will be effective ?
Ans. No. 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, is passed, it 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. (vide paragraph 37 of Gurbaksh Singh Sibbia v. State of Punjab – (1980) 2 SCC 565 = AIR 1980 SC 1632 - 5 Judges – Y. V. Chandrachud – CJI, P. N. Bhagwati, N. L. Untwalia, R. S. Pathak, O. Chinnappa Reddy – JJ; Sushila Agarwal v. State (NCT of Delhi) (2020) 5 SCC 1 – 5 Judges – Arun Mishra, Indira Banerjee, Vineeth Saran, M. R. Shah, S. Raveendra Bhat – JJ).
Q.3 Besides alleging that he has reason to believe that he may be arrested for a non-bailable offence, is there any additional obligation on the applicant to furnish the grounds of his belief ?
Ans. Yes. 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. S.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. Anticipatory bail is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations, likely or unlikely.
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 S.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. (Vide paragraphs 35 and 36 of Gurbaksh Singh Sibbia (Supra - AIR 1980 SC 1632). Mere fear or vague apprehension is not sufficient. (Vide para 16 of Adri Dharan Das v. State of W.B. – (2005) 4 SCC 303 = AIR 2005 SC 1057 – Arijit Pasayat, S. H. Kapadia - JJ).
Q.4 What are the considerations which the Court has to keep in mind while deciding an application for anticipatory bail ?
Ans. i) The nature and seriousness of the proposed charges,
ii) The context of the events likely to lead to the making of the charges,
iii) A reasonable possibility of the applicant's presence not being secured at the trial,
- A reasonable apprehension that witnesses will be tampered with, and
- "The larger interests of the public or the State"
are some of the considerations which the court has to keep in mind while deciding an application for anticipatory bail. A person seeking anticipatory bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints on his freedom, by the acceptance of conditions which the court may think fit to impose, in consideration of the assurance that if arrested, he shall be enlarged on bail. (Vide paragraph 31 of Gurbaksh Singh Sibbia (Supra - AIR 1980 SC 1632); para 22 of Shobhan Singh Khanka v. State of Jharkhand – (2012) 4 SCC 684 – P. Sathasivam, J. Chelameswar - JJ; Sushila Agarwal v. State (NCT of Delhi) (2020) 5 SCC 1 – 5 Judges – Arun Mishra, Indira Banerjee, Vineeth Saran, M. R. Shah, S. Raveendra Bhat – JJ).
Q.5 Should the operation of an order for anticipatory bail be limited in point of time ?
Ans. No. The normal rule should be not to limit the operation of the order in relation to a period of time. 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 F.I.R. in respect of the matter covered by the order. The applicant may in such cases be directed to obtain an order of bail under S.437 or 439 of the Code within a reasonably short period after the filing of the F.I.R. as aforesaid. But this need not be followed as an invariable rule. (Vide paragraph 38 of Gurbaksh Singh Sibbia (Supra - AIR 1980 SC 1632); Sushila Agarwal v. State (NCT of Delhi) (2020) 5 SCC 1 – 5 Judges – Arun Mishra, Indira Banerjee, Vineeth Saran, M. R. Shah, S. Raveendra Bhat – JJ).
Anticipatory bail is not for a limited duration and it should be continued till the trial of the case and the life of the anticipatory bail order under Section 438 Cr.P.C. cannot be curtailed. (Vide paras 94 and 95 of Siddharam Satlingappa Mhetre v. State of Maharashtra – (2011) 1 SCC 694 – Dalveer Bhandari, K. S. Radhakrishnan - JJ).
In a 3 Judge Bench decision dated 27-03-2018 in Satpal Singh v. State of Punjab AIR 2018 SC 2011 - 3 Judges - Kurian Joseph, Mohan M. Shantanagoudar, Navin Sinha – JJ, it has been observed in paragraph 14 that the protection under Section 438 Cr.P.C is available to the accused only till the Court summons the accused based on the charge sheet (report under Section 173 (2) Cr.P.C). On such appearance, the accused has to seek regular bail under Section 439 Cr.P.C and that application has to be considered by the Court on its own merits. (This observation is no more good law in view of Sushila Agarwal v. State (NCT of Delhi) (2020) 5 SCC 1 - 5 Judges – Arun Mishra, Indira Banerjee, Vineeth Saran, M. R. Shah, S. Raveendra Bhat – JJ).
On 29-01-2020 another Constitution Bench of the Supreme Court in Sushila Aggarwal v. State (NCT of Delhi) 2020 (1) KHC 663 (SC) – 5 Judges – Arun Mishra, Indira Banerjee, Vineeth Saran, M. R. Shah, S. Raveendra Bhat – JJ, has followed Gurbaksh Singh Sibbia (Supra - AIR 1980 SC 1632) to lay down the law as follows:-
- The protection granted to a person under Section 438 Cr.P.C. should not invariably be limited to a fixed period. It should enure in favour of the accused without any restriction on time. Normal condition under Section 437 (3) read with Section 438 should be imposed.
- Life or duration of an anticipatory bail order does not end normally when the accused is summoned by the Court or when charges are framed against him, but can continue till the end of the trial. If there are any special or peculiar features necessitating the Court to limit the tenure of anticipatory bail, it is open to the Court to do so. The observation in Siddharam Satlingappa Mhetre v. State of Maharashtra – (2011) 1 SCC 694 to the extent that it takes the view that the life of an order under Section 438 Cr.P.C. cannot be curtailed, is not correct law.
NOTE BY VRK : The observation in Satpal Singh (Supra.) that the protection under Section 438 Cr.P.C. is available to the accused only till the Court summons the accused based on the charge-sheet or report under Section 173 (2) Cr.P.C. and on such appearance, the accused has to seek regular bail under Section 439 Cr.P.C., is also no more good law in view of Sushila Aggarwal.