Sushila Aggarwal v NCT of Delhi

Is ‘anticipatory bail’ limited by time?


The Supreme Court’s decision in Sushila Aggarwal v NCT of Delhi, (2020) SCC Online 98 (SC) (“Sushila Aggarwal”) reviewed and settled the law on the grant of anticipatory bail. The case considered:  

  1. Whether anticipatory bail granted to a person should be for a limited time 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 trial court? 

A 5-Judge Constitution Bench of the Supreme Court (“SC”) considered these issues in the light of an apparent conflict among its earlier decisions in Gurbaksh Singh Sibbia v State of Punjab, (1980) 2 SCC 565 (“Gurbaksh Singh Sibbia”); Salauddin Abdulsamad Shaikh v State of Maharashtra, 1996 SCC (1) 667 (“Salauddin Abdulsamad Shaikh”); and, Siddharam Sattlingappa Mhetre v State of Maharashtra, (2011) 1 SCC 694 (“Siddharam Sattlingappa Mhetre”).

Anticipatory Bail

Section 438 of the Code of Criminal Procedure (“CrPC”) empowers the Court of Session and the High Court to issue directions to the police to release a person who is anticipating arrest in the near future on bail. The term “anticipatory bail” is, as such, a misnomer in that a bail cannot be granted without there being an arrest first. Anticipatory Bail (“AB”) i.e., pre-arrest bail is granted and comes into operation at the time the police arrest a person for the commission of a non-bailable, cognizable offence. 

An AB application can be moved by the person anticipating arrest (a) prior to the filing of a First Information Report (“FIR”); (b) when the FIR is filed but the charge sheet has not been filed and the investigation is in progress; (c) or after the investigation is concluded. In all these cases, the person must not have been arrested by the police. 

The conditions for the grant of AB depend on the stage at which the AB application is made; generally, the court granting AB should be satisfied that a person has reason to believe that he may be arrested in the near future; a mere fear of being arrested, without reason, is insufficient. To this extent, the AB application must contain the alleged facts concerning an offence, and the grounds on which the applicant is apprehending arrest.

Apparently Conflicting Decisions

The AB law was clarified by the SC in Gurbaksh Singh Sibbia. It was observed that the court granting AB should reduce the imposition of conditions since unnecessarily strict conditions amount to deprivation of personal liberty and the freedom of movement of a person. The SC held that ordinarily there is no time limit to an AB, but the court granting AB possesses absolute discretion to direct the time period of operation, if required, in exceptional circumstances. 

Salauddin Abdalsamad Shaikh misinterpreted Gurbaksh Singh Sibbia to hold that the operation of AB must compulsorily be limited to a certain time. Siddharam Sattlingappa Mhetre, on the other hand, misread the Gurbaksh Singh Sibbia observations to hold that anticipatory bail could never be curtailed by time. To this extent, Sushila Aggarwal clarified that both Salauddin Abdalsamad Shaikh and Siddharam Sattlingappa Mhetre are in contravention of the law declared in Gurubaksh Singh Sibbia

Is the operation of AB limited by time?

The SC in Sushila Aggarwal concurred that AB granted should not ordinarily be limited to a fixed time. It should be granted in favour of the person without imposing any time restrictions. The SC further clarified that the AB doesn’t end when the person is summoned by the trial court or when charges are framed against him but can continue till the trial comes to an end, except in special cases. The Court of Session or High Court may only limit the operation of AB to a short period for valid reasons. In such instances, the person can also be directed to obtain a post-arrest bail under sections 437 or 439 of CrPC. This however, is the exception and not the rule. 

The advocates of Iyer & Associates can assist you in filing AB applications in various Courts of Session and High Courts across India, if you so require.

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