Whether Anticipatory Bail Should Be Valid Only Till The Filing Of Charge Sheet?An Analysis

The importance of anticipatory bail in the administration of criminal justice cannot be overemphasized. The Hon’ble Supreme Court has repeatedly emphasised that while considering the issue of bail, courts have to keep in view the competing interests of the society, to keep the criminals at bay and the right of an individual to personal liberty, maintaining a fine balance between the two. Similarly, certainty in the laws is equally important for a civilized society governed by the Rule of Law.  The certainty of laws enable the courts to administer, the executive to implement and the people to follow the Law.

Anticipatory bail, and by implication, its duration, is one of the most common issues that grapple the courts every day, all over the country. Considering the importance of the issue and the number of people affected on a day to day basis, it is a bit surprising that the law on the subject was and continues to be nebulous. The question is, whether anticipatory bail is limited in its duration and comes to an end on the filing of the charge sheet/summoning of accused, requiring an accused to surrender and obtain regular bail, or once granted, anticipatory bail is valid till the end of trial.

The issue was authoritatively settled by a Constitution Bench judgment in Gurubaksh Singh Sibbia & Ors Vs State of Punjab[1] (hereinafter referred to as Sibbia’s case) as far back as 1980.  In Sibbia’s case,  the Constitution Bench held that normally anticipatory bail should not be limited in the period of its operation, but for reasons such as granting of bail even prior to the registration of FIR, anticipatory bail may be granted for limited period directing the applicant to obtain bail under Section 437 or 439 of the Criminal Procedure Code. However, a three-judge bench of the Hon’ble Supreme Court in  Salauddin Abdulsamad Shaikh v. State of Maharashtra[2], (hereinafter referred to as Salauddin’s case) without considering the Constitution Bench judgment in Sibbia’s case took the view that anticipatory bail can be only for a limited period and on filing of the charge sheet, an accused has to surrender and obtain regular bail. Subsequently, a number of judgments were passed following view expressed in Salauddin’s judgment rather than Sibbia’s dictum, making the legal position more and more nebulous. The ambiguity was put to rest by a two-judge bench in Siddharam Satlingappa Mhetre  Vs State of Maharastra[3] (hereinafter referred to as Siddharam’s case) by declaring Salauddin’s judgment and the judgments that followed Salauddin’s case per incuriam, on the ground of ignoring the binding dictum of the Constitution Bench in Sibbia’s case.  The ambiguity however, persisted as some smaller benches continued to follow Salauddin’s judgment rather than the dictum of the Constitution Bench in Sibbia’s case.

Considering the conflicting opinions expressed by different benches regarding the duration of anticipatory bail, a three-judge bench of the Hon’ble Supreme Court by a recent judgment dated 15.5.2018 in Sushila Aggarwal & Ors Vs State (NCT of Delhi) & Anr, SLP (Crl) Nos.7281-7282/2017 (hereinafter referred to as Sushila Aggarwal’s case) has referred the issue regarding the duration of anticipatory bail for consideration by a larger Bench.

 The background:

The accused, in Sushila Aggarwal’s case, was granted anticipatory bail by the Hon’ble High Court of Delhi. Challenging the same, the complainants filed a Special Leave Petition before the Hon’ble Supreme Court. During the pendency of the SLP, charge sheet was filed under Section 173(2) Cr.P.C.  In view of the filing of the charge sheet, the question arose as to whether, the accused was required to surrender before the trial court and obtain regular bail. On behalf of the accused it was contended that in view of the judgment of the Constitution Bench in Sibbia’s case and Siddharam’s case, the accused is not required to surrender and obtain regular bail and the accused is entitled for the benefit of anticipatory bail granted by the High Court till the end of trial.[4] Having considered the Judgment of the Constitution Bench in Sibbia’s case and the conflicting opinions of the two/three-judge bench judgments, the Court was pleased to appoint an Amicus Curiae.  Ld. Amicus Curiae pleaded for a very narrow and restricted interpretation of Section 438 of the Code, in granting anticipatory bail, which is plainly contrary to the dictum of the Constitution Bench in Sibbia’s case[5].

Referring to the conflicting judgments on the issue the Court held:

Shri Harin P.Raval, Learned Senior Counsel and Amicus Curiae submits that in the light of the two conflicting schools of thought the matter needs consideration by a larger bench. According to him even the Constitution Bench in Sibbia (Supra) does not in so many words, lay down a proposition that the protection of anticipatory bail is available to an accused till the conclusion of the trial.

 “We are prima facie of the view that the Constitution Bench in Sibbia (supra) has not laid down any law that once an anticipatory bail, it is anticipatory bail forever.”

 In the light of the conflicting views of the different Benches of varying strength, we are of the opinion that the legal position needs to be authoritatively settled in clear and unambiguous terms. Therefore, we refer the following questions 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. 

Accordingly, we direct the Registry to place the papers before Hon’ble the Chief Justice of India.”

In view of the conflicting opinions of the Constitution Bench and the two/three-judge benches, it is necessary to analyse the judgments to find out how the conflict came into existence and whether the judgment of the Constitution Bench is ambiguous resulting in the two/three-judge benches taking conflicting view.

Judgment of the Constitution Bench:

A Full Bench of the Punjab and Haryana High Court considering the scope and ambit of anticipatory bail under Section 438 of the Code, laid down eight principles to be kept in mind while considering the grant of anticipatory bail, restricting the power and scope of anticipatory bail. The appeals arising out of the judgment of the Full Bench were referred to the Constitution Bench in Sibbia’s case to authoritatively settle the law on various aspects of anticipatory bail. The Constitution Bench in Sibbia’s case held:

 We find ourselves unable to accept, in their totality, the submissions of the learned Additional Solicitor General or the constraints which the Full Bench of the High Court has engrafted on the power conferred by Section 438. Clause (1) of Section 438 is couched in terms, broad and unqualified. 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.

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.  ……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.

 “13.  …..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.

 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. No doubt can linger after the decision in Maneka Gandhi, 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.

Regarding the duration of anticipatory bail the Constitution Bench in Sibbia’s case held:

…..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.

“….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”

The dictum of the Constitution Bench regarding the duration of anticipatory bail can be summarised as under:

An order granting anticipatory bail under Section 438(1) need not be necessarily limited in point of time;

The normal rule should be not to limit the operation of the order granting anticipatory bail in relation to a period of time.

The court granting anticipatory bail may however, limit the operation of the order to a short period for reasons (such as granting of anticipatory bail even in the absence of FIR);In such cases, the applicant may be directed to obtain bail under Section 437 or 439 of the Code within a reasonably short period after the filing of the FIR.

An analysis of the judgment of the Constitution Bench shows that detailed reasons were given in the judgment in support of enunciation of law. The judgment is neither vague nor ambiguous. The words ‘normal rule’ in the dictum, “The normal rule should be not to limit the operation of the order in relation to a period of time” were used in conformity with the reasoning that the High Courts and the courts of session have the discretion to grant, not to grant or impose conditions while granting bail ‘if (it) thinks fit.’ Such a discretion cannot be circumscribed or curtailed. The usage of the words ‘normal rule’ is also in accordance with the view taken by the Court that restrictions, which are not in Section 438 of the Code, can be read into the provision curtailing the discretion of the courts. As the Constitution Bench gave reasons in support of enunciation of law in clear and unambiguous terms, all the courts including the smaller benches of the Hon’ble Supreme Court are bound by the law as interpreted and explained the by Constitution Bench and are required to follow the same.

Judgments by the smaller benches and High Courts:

The first of the judgments restricting the period of operation of anticipatory bail was passed by a three-judge bench in Salauddin’s case (supra). In Salauddin’s case the High Court granted anticipatory bail for a limited period and directed the accused to approach the concerned court for regular bail.  The same was challenged before the Supreme Court.  The Hon’ble Supreme Court by an order dismissed the petition holding 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 and that is the reason why the High Court very rightly fixed the outer date for the continuance of the bail and on the date of its expiry directed the petitioner to move the regular court for bail. That is the correct procedure to follow 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 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.

 It should be realised that an order of anticipatory bail could even be obtained in cases of a serious nature as for example murder and, therefore, it is essential that the duration of that order should be limited and ordinarily the court granting anticipatory bail should not substitute itself for the original court which is expected to deal with the offence. It is that court which has then to consider whether, having regard to the material placed before it, the accused person is entitled to bail.

A perusal of the order passed in Salauddin’s case shows that the same was passed without reference to any precedents, including the judgment of the Constitution Bench in Sibbia’s case, on the issue of duration of anticipatory bail. Demonstrably, the view taken by the Court in Salauddin’s case is clearly contradictory to the dictum laid down by the Constitution Bench in Sibbia’s case. While the Constitution Bench in Sibbia’s case held that “The normal rule should be not to limit the operation of the order in relation to a period of time,”  the Court in Salauddin’s case held that “it is essential that the duration of the order should be limited.”  Thus the view of the court in Salauddin’s case regarding the duration of anticipatory bail is clearly in conflict with the law laid down by the Constitution Bench in Sibbia’s case.

The discrepancy however was not noticed and a series of judgments followed Salauddin’s judgment, all ignoring the binding dictum of the Constitution Bench in Sibbia’s case. Though some judgments following Salauddin’s case referred to Sibbia’s case, the reference was regarding the difference between regular bail and anticipatory bail or regarding the procedure of arrest under Section 46 (1) of the Code and not regarding the duration of anticipatory bail.

K.L.Verma Vs State[6] followed Salauddin’s case, which while reiterating the proposition in Salauddin’s case that anticipatory bail can only be for a limited period, expanded the protection, with which we are not concerned in the present article[7].

The Andhra Pradesh High Court was one of the first High Courts to notice the conflict between the judgment of the Constitution Bench in Sibbia’s case and Salauddin’s and K.L.Verma’s judgments. A single judge of the Andhra Pradesh High Court in C.H. Siva Prasad and Others Vs. State of A.P.[8], having considered the conflicting views held:

 It is required to notice that the decision of the Apex Court in Gurubaksh Singh's case (supra) is by a Constitution Bench while the decisions in Saluddin (supra) and Varma 's case (supra) are by the Division Benches of the same Court. It is also required to notice that the decision of the Apex Court in Gurubaksh Singh's case was not placed and brought to the notice of the Apex Court in Salauddin and Varma's Cases. It is, therefore, not possible for this Court to predict as to what could have been the decision of the Apex Court in Saluddin and Varma's cases had the decision of the Constitution Bench of the Apex Court in Gurubaksh Singh's case been brought to its notice. But the fact remains that a clear and unambiguous verdict of the Constitution Bench of the Apex Court was not brought to the notice of the two Division Benches of the Apex Court which had dealt with Salauddin and Varma's Cases. It is settled law that this Court is bound by the law declared by the Supreme Court and even an obiter of the Apex Court is binding on this Court. However, it is case of any divergent views and conflict between a larger Bench and a smaller Bench, this Court is required to follow up the decision of the larger Bench. It would be entirely a different thing if the subsequent smaller Bench refers to the decision of the larger Bench and interprets the decision of the larger Bench in a particular manner, and in such an event, it would not be open for this Court to take any other view except to follow the decision of the smaller Bench which is subsequent in point of time to that of the larger Bench. It is also clear that in the absence of reference of larger Bench decision by the subsequent smaller Bench, this Court is required and bound to follow the decision of the larger Bench until the conflict is resolved by the Apex Court itself in an appropriate case.

While the High Courts were grappling with the conflicting decisions of the Hon’ble Supreme Court, the conflicting decisions were not brought to the notice of the Hon’ble Supreme Court, which continued to render judgments following Salauddin’s judgment rather than Sibbia’s judgment. The Hon’ble Supreme Court in Nirmal Jeet Kaur Vs State of M.P. and Anr.[9]; Sunita Devi Vs State of Bihar[10];  Adri Dharan Dass Vs State of W.B.[11];  D.K.Ganesh Babu Vs P.T.Manokaran & Ors;[12] Rekha Patel Vs Pankaj Verma & Ors.[13]; Naresh Kumar Yadav Vs. Ravinder Kumar Ors.[14]; followed Salauddin’s judgment to restrict the duration of anticipatory bail.

At this juncture, the conflicting judgments of the Hon’ble Supreme Court were referred to a Full Bench of the Madras High Court. A Full Bench of the Madras High Court in Palanikumar Vs. State,[15] after considering Salauddin’s judgment held that, “But one thing is certain and that is, the Constitution Bench judgment in Gurubaksh Singh Sibbia’s case was not brought to the notice of the court dealing with Salauddin’s case.” Similar opinion was expressed regarding judgments that followed the dictum in Salauddin’s judgment and held that “Salauddin’s case is the forerunner for all the subsequent cases to conclude that anticipatory bail order could be only for a limited period. We find with respect that the judgment in Salauddin’s case is at variance with the judgment of the  Constitution Bench in Gurubaksh Singh Sibbia’s case.”   The Full Bench of the Madras High Court having considered the conflict concluded that:

“9. From a reading of the judgments of the Supreme Court last referred to above, it is clear that the High Court has to follow the procedure indicated therein. If that procedure is followed, then this court has no doubt at all that it has to follow the Constitution Bench Judgment of the Supreme Court reported in Shri. Gurubaksh Singh Sibbia V. State of Punjab, 1980 SCC (Cri.) 465. The Supreme Court in Gurubaksh Singh Sibbia’s case  had emphasized that  the normal rule should be not to limit the operation of the order in relation to a period of time”.

In Savitri Agarwal Vs. State of Maharashtra[16] the Court lamented that “despite a plethora of case law on the subject including a decision of the Constitution Bench in Gurbaksh Singh Sibbia Vs. State of Punjab certain misgivings in regard to the concept and scope of the said provision still seems to prevail.[17]” The Hon’ble Court extensively referred to Sibbia’s case  and summarised the law laid down by the Constitution Bench, including the views of the Constitution Bench regarding duration of anticipatory bail. The Court in Savitri Devi held referring to Sibbia’scase held:

“The Court (in Sibbia’s case) felt that wide discretionary power conferred by the legislature on the higher echelons in the criminal justice-delivery system cannot be put in the form of straitjacket rules for universal application as the question whether to grant bail or not depends for its answer upon a variety of circumstances, the cumulative effect of which must enter into the judicial verdict. A circumstance which, in a given case, turns out to be conclusive, may or may not have any significance in another case.

While cautioning against imposition of unnecessary restrictions on the scope of the section, because, in its opinion, overgenerous infusion of constraints and conditions, which were not to be found in Section 438 of the Code, could make the provision constitutionally vulnerable, since the right of personal freedom, as enshrined in Article 21 of the Constitution, cannot be made to depend on compliance with unreasonable restrictions, the Constitution Bench laid down the following guidelines, which the courts are required to keep in mind while dealing with an application for grant of anticipatory bail:

(i)      …….

 (ii)     …..

(iii)    ……….

(ix) Though it is not necessary that the operation of an order passed under Section 438(1) of the Code be limited in point of time but 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 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 reasonable short period after the filing of the FIR.

While Savitri Devi pointed out that inspite of the Constitution Bench judgment there are misgivings, and summarised the law enunciated in Sibbia’s case including the observations of the Constitution Bench regarding duration of anticipatory bail in Para 24(ix) of the judgment, a subsequent judgment of the Hon’ble Supreme Court in HDFC Bank Vs J.J.Mannan[18] followed the line of Salauddin’s judgment. Though the Hon’ble Court in HDFC judgment referred to Sibbia and Savitri Aggarwal judgments, the Court has not taken into consideration the observations of the Constitution Bench regarding duration of bail or the summation of the Constitution Bench Judgment in paragraph 24 (ix)  of Savitri Devi’s  case.

The Hon’ble Supreme Court in Siddharam’s case (supra) extensively dealt with the issue as to whether, grant of anticipatory bail for limited period is contrary to the legislative intent and the law declared by the Constitution Bench in Sibbia’s case. The Court considering Sibbia’s case and the judgments in Salauddin, K.L.Verma, Adri Dharan Das, Sunita Devi and Naresh Kumar Yadav  cases (supra) held that the contrary view taken in these judgments is per incuriam having not considered the binding judgment of the Constitution Bench in Sibbia’s case. The Court held:

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. …..

It is a settled legal position crystallised by the Constitution Bench of this Court in Sibbia case that the courts should not impose restrictions on the ambit and scope of Section 438 CrPC which are not envisaged by the legislature. The Court cannot rewrite the provision of the statute in the garb of interpreting it.

 It is unreasonable to lay down strict, inflexible and rigid rules for exercise of such discretion by limiting the period of 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 Sibbia case: (SCC pp. 576-77 & 580-81, paras 10, 12 & 14-15)

 In our considered view, the Constitution Bench in Sibbia case has comprehensively dealt with almost all aspects of the concept of anticipatory bail under Section 438 CrPC. A number of judgments have been referred to by the learned counsel for the parties consisting of Benches of smaller strength where the Courts have observed that the anticipatory bail should be of limited duration only and ordinarily on expiry of that duration or standard duration, the court granting the anticipatory bail should leave it to the regular court to deal with the matter. This view is clearly contrary to the view taken by the Constitution Bench in Sibbia case. In the preceding para, it is clearly spelt out that no limitation has been envisaged by the legislature under Section 438 CrPC. The Constitution Bench has aptly observed that “we see no valid reason for rewriting Section 438 with a view, not to expanding the scope and ambit of the discretion conferred on the High Court or the Court of Session but, for the purpose of limiting it”.

In view of the clear declaration of law laid down by the Constitution Bench in Sibbia case, it would not be proper to limit the life of anticipatory bail. When the Court observed that the anticipatory bail is for limited duration and thereafter the accused should apply to the regular court for bail, that means the life of Section 438 CrPC would come to an end after that limited duration. This limitation has not been envisaged by the legislature. The Constitution Bench in Sibbia case clearly observed that it is not necessary to rewrite Section 438 CrPC. Therefore, in view of the clear declaration of the law by the Constitution Bench, the life of the order under Section 438 CrPC granting bail cannot be curtailed.

The ratio of the judgment of the Constitution Bench in Sibbia case perhaps was not brought to the notice of Their Lordships who had decided the cases of Salauddin Abdulsamad Shaikh v. State of Maharashtra, K.L. Verma v. State, Adri Dharan Das v. State of W.B and Sunita Devi v. State of Bihar.

 The judgments and orders mentioned in paras 124 and 125 are clearly contrary to the law declared by the Constitution Bench of this Court in Sibbia case. These judgments and orders are also contrary to the legislative intention. The Court would not be justified in rewriting Section 438 CrPC.

The analysis of English and Indian law clearly leads to the irresistible conclusion that not only the judgment of a larger strength is binding on a judgment of smaller strength but the judgment of a coequal strength is also binding on a Bench of Judges of coequal strength. In the instant case, judgments mentioned in paras 124 and 125 are by two or three Judges of this Court. These judgments have clearly ignored the Constitution Bench judgment of this Court in Sibbia case which has comprehensively dealt with all the facets of anticipatory bail enumerated under Section 438 CrPC. Consequently, the judgments mentioned in paras 124 and 125 of this judgment are per incuriam.

In Rashmi Rekha Thatoi and Anr. Vs. State of Orissa and Ors[19] the Court considering Siddharam’s case (supra) regarding duration of anticipatory bail held:

At this juncture we may note with profit that there was some departure in certain decisions after the Constitution Bench decision. In Salauddin Abdulsamad Shaikh v. State of Maharashtra it was held that it was necessary that under certain circumstances anticipatory bail order 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 appreciation of material placed before it.

 Be it noted, the principle of grant of anticipatory bail for a limited duration in Salauddin Abdulsamad Shaikh, K.L. Verma, Adri Dharan Das and Sunita Devi v. State of Bihar was held to be contrary to the Constitution Bench decision in Gurbaksh Singh Sibbia case by a two-Judge Bench in Siddharam Satlingappa Mhetre v. State of Maharashtra and accordingly the said decisions were treated as per incuriam. It is worth noting though the Bench treated Adri Dharan Das to be per incuriam, as far as it pertained to the grant of anticipatory bail for limited duration…..”.

The Hon’ble Supreme Court in Bhadresh Bipinbhai Sheth v. State of Gujarat[20], referred to Sibbia’s case and Sidharam’s case and summarised the law regarding anticipatory bail. The court held that:

 Another case to which we would like to refer is the judgment of a Division Bench of this Court in Siddharam Satlingappa Mhetre State of Maharashtra. This case lays down an exhaustive commentary on Section 438 of the Code covering, in an erudite fashion, almost all the aspects and in the process relies upon the aforesaid Constitution Bench judgment in Gurbaksh Singh case. In the very first paragraph, the Court highlighted the conflicting interests which are to be balanced while taking a decision as to whether bail is to be granted or not, as is clear from the following observations:

The principles which can be culled out, for the purposes of the instant case, can be stated as under:

 In pursuance of the order of the Court of Session or the High Court, once the accused is released on anticipatory 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.

While Savitri Devi, Siddharam, Rashmi Rekha Thatoi and Bhadresh Bipin Bhai Seth considered and reiterated the views of the Constitution Bench in Sibbia’s case regarding the duration of anticipatory bail, a three judge bench in Satpal Singh Vs State of Punjab (Crl.A.No. 462/2017 dated 27.3.2018) without referring to any precedents, held that anticipatory bail can only be for a limited duration and accused shall have to obtain regular bail on being summoned by the court. Out of the judgments mentioned above the first and the last in chronology after Sibbia’s judgment i.e. Salauddin’s and Satpal Singh’s judgments are by the three Judge Benches, whereas, all the remaining judgments are by the two judge benches. Both these judgments did not refer to any precedents, including the judgment of the Constitution Bench, while holding that anticipatory bail can only be for a limited duration and an accused shall have to obtain regular bail on being summoned by the court/filing of the charge sheet.

 An analysis of the above referred judgments on the issue of duration of anticipatory bail shows that the whenever, the judgment of the Constitution Bench in Sibbia’s case was considered, invariably, the courts arrived at the conclusion that anticipatory bail is normally not limited in its period of operation. On the other hand, all the judgments which took contrary view i.e. that anticipatory bail can only be for a limited period and an accused has to surrender and obtain regular bail on filing of the charge sheet/on being summoned, did not consider the judgment of the Constitution Bench in Sibbia’s case regarding the duration of anticipatory bail.  It is pertinent, that none of the judgments, which considered the Constitution Bench judgment in Sibbia’s case, ever cast any doubt on the dictums laid down by the Constitution Bench in Sibbia’s case.

Reference to a Larger Bench:

The Hon’ble Supreme Court in Central Board of Dawoodi Bohra Community v. State of Maharashtra,[21] considered the issue as to when, a smaller bench can refer a matter to a larger bench.  The court held:

In Bharat Petroleum Corpn. Ltd. case the Constitution Bench has ruled that a decision of a Constitution Bench of this Court binds a Bench of two learned Judges of this Court and that judicial discipline obliges them to follow it, regardless of their doubts about its correctness. At the most, they could have ordered that the matter be heard by a Bench of three learned Judges. Following this view of the law, what has been declared by this Court in Pradip Chandra Parija case clinches the issue. The facts in the case were that a Bench of two learned Judges expressed dissent with another judgment of three learned Judges and directed the matter to be placed before a larger Bench of five Judges. The Constitution Bench considered the rule of “judicial discipline and propriety” as also the theory of precedents and held that it is only a Bench of the same quorum which can question the correctness of the decision by another Bench of coordinate strength in which case the matter may be placed for consideration by a Bench of larger quorum. In other words, a Bench of lesser quorum cannot express disagreement with, or question the correctness of, the view taken by a Bench of larger quorum. A view of the law taken by a Bench of three Judges is binding on a Bench of two Judges and in case the Bench of two Judges feels not inclined to follow the earlier three-Judge Bench decision then it is not proper for it to disagree or dissent with the earlier view; but doubting the correctness of such earlier view, it can only request the Chief Justice for the matter being placed for hearing before a three-Judge Bench which may agree or disagree with the view of the law taken earlier by the three-Judge Bench. As already noted, this view has been followed and reiterated by at least three subsequent Constitution Benches referred to hereinabove”.

Ld. Amicus Curiae in Sushila Aggarwal’s case pleaded for reference of the issue to a larger bench on the ground that there is a conflict of opinion between the smaller benches. The conflict and the consequences of the conflict between the opinions of the Constitution Bench in Sibbia’s case and judgments of smaller benches of the two/three judges in Salauddin’s case and judgments following Salauddin’s case was discussed extensively in Siddharam’s judgment. In Siddharam judgment, the court having noticed the conflict between the Constitution Bench and the judgments of the two/three judge bench judgments held that:

In case there is no judgment of a Constitution Bench or larger Bench of binding nature and if the Court doubts the correctness of the judgments by two or three Judges, then the proper course would be to request the Hon’ble the Chief Justice to refer the matter to a larger Bench of appropriate strength.

In the instant case there is a direct judgment of the Constitution Bench of this Court in Sibbia case dealing with exactly the same issue regarding the ambit, scope and object of the concept of anticipatory bail enumerated under Section 438 CrPC. The controversy is no longer res integra. We are clearly bound to follow the said judgment of the Constitution Bench. The judicial discipline obliges us to follow the said judgment in letter and spirit”.

The submissions of Ld. Amicus Curiae in Sushila Aggarwal’s case that in the light of the two conflicting views the matter needs consideration by a larger bench is not warranted as the conflict is not between two benches of equal strength, as to be resolved by a larger bench, particularly, when the smaller benches of the Court, held that the contrary view taken by some other smaller benches is perincuriam. The Court in Sushila Aggarwals case, ought to have rejected the plea of the amicus curiae to refer the issue to a lager bench.

An analysis of judgments on the issue of duration of anticipatory bail shows that:

(i)      The Constitution Bench Sibbia’s case gave elaborate reasons in support of enunciation of law made in the judgment.

(ii)     The main thrust of the reasoning in Sibbia’s case is that the statute provided wide discretion on the High Courts and the courts of session in the matter of granting anticipatory bail and the same cannot be curtailed or restricted. The courts also cannot read restrictions, which are not in the statute itself.

(iii)    Regarding the duration of anticipatory bail, the Constitution Bench held that “The normal rule should be not to limit the operation of the order in relation to a period of time.” The words “normal rule” were used to maintain the balance between discretion and imposing a condition which is not incorporated in Section 438 of the Code by the legislation.

(iv)    The Constitution Bench also provided an instance where duration of anticipatory bail can be restricted and orders to be passed in such cases. The court gave an instance that where anticipatory bail is granted even in the absence an FIR, bail may be granted for a limited period directing the applicant to obtain regular bail under Section 437 or 439.

(v)     The Judgment of the Constitution Bench is thus, neither vague nor ambiguous.

(vi)    Salauddin’s judgment and judgments following Salauddin’s view have not considered the judgment of the Constitution Bench in Sibbia’s case.

(vii)   Having considered the Constitution Bench judgment and contrary opinion in Salauddin’s judgment and the judgments following Salauddin’s case, the Court in Siddharam’s judgment (correctly) held that the contrary view expressed is per incuriam having been rendered in ignorance of the Constitution Bench dictum in Sibbia’s case.

(viii)  None of the judgments ever cast any doubt on the correctness of Sibbia’s dictum.

(ix)    The questions referred for decision of the larger bench in Sushila Agarwal’s case viz;

“(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”. 

are clearly contrary to the dictum laid down by the Constitution Bench in Sibbia’s case that “The normal rule should be not to limit the operation of the order in relation to a period of time.”

(x)     The law on the aspect of duration of anticipatory bail got nebulous and ambiguous as the two/three judge benches continued to follow the three judge bench view expressed in Salauddin’s case rather than the view of the Constitution Bench in Sibbia’s case, resulting in persisting ambiguity and referring the issue to a larger bench.

Even though, the view of the Constitution Bench in Sibbia’s case was not doubted by any bench, which has considered the judgment of the Constitution Bench, considering the issue is referred to a larger bench in Sushila Aggarwal’s case, the same needs to be resolved as expeditiously as possible, considering the importance of the issue and its affect on day to day administration of criminal justice.

 Conclusions:

The law on the aspect of duration of anticipatory bail became ambiguous only because some judgments were rendered in ignorance of the law authoritatively laid down by the Constitution Bench in Sibbia’s case. In view of the clear enunciation of law by the Constitution Bench in Sibbia’s case, the judgment in Salauddin’s case and the judgments following Salauddin’s case are per incuriam as held in Siddharam judgment. The issue having been referred to a larger bench in Sushila Devi’s case, until the issue is settled by a larger bench, the dictum of the Constitution Bench holds the field and normally, anticipatory bail is not limited in period of its operation and unless the anticipatory bail is restricted for a limited period, for specific reasons, anticipatory bail shall continue till the end of trial unless revoked or cancelled following the well-established principles for cancellation of bail.

C. Mohan Rao is an AOR, Supreme Court of India And counsel for the accused in Smt.Sushila Aggarwal & Ors VsState & Anr. SLP (Crl).No. 7281-82 of 2017.

[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]

[1]  (1980) 2 SCC 565

[2] (1996) 1 SCC 667

[3] (2011) 1 SCC 694

[4] Note: The accused however, has surrendered before the Trial Court seeking regular bail. Arguments were heard on the application for bail. The Sessions court however, could not pass orders on the bail application due to paucity of time and remanded the accused to the judicial custody. Orders on the bail application were passed a day later, granting bail to the accused. An application was filed for expeditious release of the accused as the accused is a Government Servant and there would have been a deemed suspension. The Sessions Court allowed the application and passed orders for expeditious release of the accused before completion of 48 hours of incarceration. The accused was released before 48 hours. The accused however, had to suffer unwarranted and unintended incarceration for nearly two days because the court could not pass orders on the application for bail, the same day. Sushila Agarwal’s case, which is referred to a Larger Bench, illustrated the pitfalls in limiting the duration of anticipatory bail.  In case duration of anticipatory bail is limited, measures have to be devised to avoid unwarranted and unintended incarceration.

[5] Note: The Amicus Curiae in his written submissions contended that “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 arrest.  ……….. 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 the arrest, leaving it open to the accused to apply for Regular Bail under Section 437/439 of the Code…..”

[6] (1998) 9 SCC 348

[7] The Court in K.L.Verma’s case held: “To put it differently, anticipatory bail may be granted for a duration which may extend to the date on which the bail application is disposed of or even a few days thereafter to enable the accused persons to move the higher court, if they so desire.” As regular bail under Section 439 of the Code can be granted only when the accused is in custody, the extension of protection to “ a few days thereafter to enable the accused persons to move the higher court, if they so desire.” Was held to be per incuriam of Section 439 of the Code in Nirmal Jeet Kaur Vs State of M.P. (2004) 7 SCC 558.

[8] 1999 Cri.L.J  1263

[9] (2004) 7 SCC 558

[10] (2005) 1 SCC 608

[11] (2005) 4 SCC 303

[12] (2007) 4 SCC 434

[13]  (2008) 4 SCC 17

[14] (2008) 1 SCC 632

[15] 2007 (3) Crimes 439 (Mad.)

[16] (2009) 8 SCC 325

[17] In Savitri Agarwal’s case the court held that the views expressed in Adri Dharan Das’s case (ibid) that courts cannot pass an interim order restraining arrest as it will amount to interference with investigation and the observations that power under Section 438 of the Code is to be exercised only exceptional cases appears to be not in consonance with the opinion of the Constitution Bench in Sibbia’s case.

[18] (2010) 1 SCC 679

[19] (2012) 5 SCC 690

[20] (2016) 1 SCC 152

[21] (2005) 2 SCC 673