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The Honorable Supreme Court pronounced a landmark judgment last Wednesday (29.01.2020) on anticipatory bail clearing all the confusions over whether protections given to a person by such bail should exist for a fixed period. Various judgments of various courts of this land left the point on anticipatory bail in a confused state which was finally cleared by the judgment of a five judge Constitutional Bench in Sushila Aggarwal and others v. State (NCT of Delhi) and another. Justice MR Shah and Justice S. Ravindra Bhat penned separate judgments which went hand in hand. Justices Arun Mishra, Indra Banerjee and Vineet Saran agreed with the conclusions reached by both the separate judgments of the above judges.

Before going into the crux of this case let us have a brief outline about the concept of anticipatory bail and the conditions needed for granting one. This bail can be granted under Section 438 of the Criminal Procedure Code which is a direction to release a person on bail issued even before the person is arrested. The necessity of this kind of bail arises because sometimes influential persons try to implicate their rivals in false case so as to disgrace them and for some other purposes. This is usually granted by the Sessions Court or High Court. Some considerations that should be kept in mind before granting of such bail is that

  1. The nature and gravity of accusation

  2. The antecedents of applicant

  3. The possibility of him to flee from justice

  4. Whether the accusation is made with a view of humiliation

  5. Requirements under Section 437(3)

The chief issues that came to the consideration of this court are

  1. Whether the protection granted to a person under Section 348 CrPC 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?

The judges while deciding this case referred various previous judgments of courts. It stated that the judgment in Shri Gurbaksh Singh Sibbia and others v. State of Punjab (2) SCC 667 needs reiteration. This judgment held that the protection granted anticipatory bail under Section 438 of CrPC is very broad. It cannot be construed narrowly to be limited by time. But in individual situations, appropriate conditions can be imposed by this court considering various circumstances. Sibbia case holds the field.

This court however overruled the judgment in Salauddin Abdulsamad Shaikh v. State of Maharashtra 1996 (1) SCC 667 where the scope of section 438 CrPC is restricted. Here a three judge bench held that this kind of bail should be restricted to a limited time frame. Also the judgment of Siddharam Satlingappa Mhetre v. State of Maharashtra & Ors 2011 (1) SCC 694 held that the time frame of granting anticipatory bail cannot be curtailed.

Similarly a number of cases which came to the consideration of the court took divergent views, giving conflicting judgments. All these difference of opinions came to settlement in this case.

Regarding the first issue the court held that the protection granted under section 438 CrPC should not be limited to any stipulated time period. However the normal conditions mentioned under Section 437 (3) should always be considered while granting anticipatory bail. Also with regard to specific facts, the court can impose appropriate conditions. However the courts have the discretion to impose time limits on cases where it is required to do so.

“A bare reading of Section 438 of the CrPC 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 CrPC.”

“…the protection granted to a person under Section 438 CrPC should not invariably be limited to a fixed period; it should inure in favour of the accused without any restriction on time. Normal conditions under Section 437 (3) read with Section 438 (2) should be imposed; if there are specific facts or features in regard to any offence, it is open for the court to impose any appropriate condition…”

With regard to the second issue the court held that the life of the anticipatory bail should not be limited with the time when the accused is summoned before the court or when the charges are framed. It should continue till the trial end. However if there are any special or peculiar features necessary to limit the tenure of the anticipatory bail, it has the discretion to do so. The SC cautioned the narrow interpretation on the law of anticipatory bail. Justice Bhat viewed that the arbitrary arrests and detentions continue to be a pervasive phenomenon.

“…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.”

“… it would not be in the larger interests of society if the court, by judicial interpretation, limits the exercise of that power: 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.”

In Sibbia case the court also held that where there is a reasonable cause to secure incriminating material under Section 27 of the Evidence Act, anticipatory bail should not be granted. In this judgment imposition of blanket restriction was disapproved. In the event of possibility of recovery under Section 27 of the Act, the court can impose restriction while granting bail. If in the pursuance of information given by the accused on bail some facts are discovered, the prosecution can claim the benefit of Section 27 of the Evidence Act.

 “One of such conditions can even be that in the event of police making out a case of a likely discovery under Section 27 of the Evidence Act, Person released on bail shall be liable to be taken in police custody for facilitating the discovery. Besides, if and when the occasion arises, it may be possible for the prosecution to claim the benefit of Section 27 of the Evidence Act in regard to a discovery of facts made in pursuance of information supplied by a person released on bail by invoking the principle stated by this Court in State of U.P v Deoman Upadhyaya”

In State of U.P v Deoman Upadhyaya, the court had discussed a concept of “deemed custody” for the purpose of Section 27:

“When a person not in custody approaches a police officer investigating an offence and offers to give information leading to the discovery of a fact, having a bearing on the charge which may be made against him he may appropriately be deemed to have surrendered himself to the police. Section 46 of CrPC does not contemplate any formality before a person can be said to be taken in custody: submission to the custody by word or action by a person insufficient. A person directly giving  to a police officer by word of mouth information which may be used as evidence against him, may be deemed to have submitted himself to the “custody” of the police officer within the meaning of Section 27 of the Indian Evidence Act”

–  Priyadharshini R



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