REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CRIMINAL) NOS.7281-7282 OF 2017

SUSHILA  AGGARWAL & ORS.                 PETITIONER (S)

VERSUS

STATE (NCT OF DELHI) & ANR.          RESPONDENT(S)

O R D E R KURIAN, J.

1. Whether  an  anticipatory  bail  should  be  for  a  limited

period of time is the issue before us on which there are two

divergent views.

2. The line of judgments that anticipatory bail should not

be for a limited period places its reliance on the Constitution

1

Bench decision of this Court in Shri Gurbaksh Singh Sibbia

and others v. State of Punjab  1.

3. Siddharam  Satlingappa  Mhetre v. State  of

Maharashtra and others  2  is a very detailed judgment by a

Bench  of  two  Judges  on  the  scope  and  object  of  an

anticipatory bail. In Mhetre (supra), this Court took the view

that  the  Constitution  Bench  has  held  that  anticipatory  bail

granted by the court should ordinarily continue till the trial of

the case.  To quote: “94. The proper course of action ought

to be that after evaluating the averments and accusation available on the record if the court is inclined to grant anticipatory bail  then an interim bail be granted and notice be issued to  the  Public  Prosecutor.  After  hearing  the Public Prosecutor the court may either reject the bail application or confirm the initial order of granting bail. The court would certainly be entitled to impose conditions for the grant of bail. The Public Prosecutor or the complainant would be at liberty to move the same court for cancellation  or  modifying  the  conditions  of bail any time if liberty granted by the court is misused. The bail granted by the court should ordinarily  be  continued  till  the  trial  of  the case.

95.  The order granting anticipatory bail for a limited duration and thereafter directing

1  (1980) 2 SCC 565 2  (2011) 1 SCC 694

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the  accused  to  surrender  and  apply  for  a regular  bail  is  contrary  to  the  legislative intention and the judgment of the Constitution Bench in Sibbia case.”

(Emphasis supplied)

The decision in Mhetre was recently followed in Bhadresh

Bipinbhai Sheth v. State of Gujarat and another  3.   

4. The other line of judgments is that orders of anticipatory

bail should be of a limited duration.  Salauddin Abdulsamad

Shaikh v. State  of  Maharashtra  4 is  one  of  the  earlier

decisions of a three Judge Bench. True, there is no reference to

the  Constitution  Bench  in  Sibbia’s case  (supra).  However,

discussing the concept of anticipatory bail, this Court took the

view that :-

“2. Under  Section  438  of  the  Code  of Criminal  Procedure  when  any  person  has reason to believe that he may be arrested on an  accusation  of  having  committed  a  non- bailable offence, the High Court or the Court of Session may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail and in passing that order, it may include such conditions having regard to the facts of the  particular  case,  as  it  may  deem appropriate.  Anticipatory  bail  is  granted  in anticipation of arrest in non-bailable cases, but

3 (2016) 1 SCC 152 4  (1996) 1 SCC 667

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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.

3. 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.”

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This view has also been followed in K.L. Verma v. State

and another  5, Sunita  Devi v.  State  of  Bihar  and

another  6,  Adri  Dharan  Das v.  State  of  W.B.  7.  In  K.L.

Verma (supra),  after  referring  to  Salauddin (supra),  this

Court held as follows:

“3. We  have  carefully  examined  both  the orders of 9-10-1996 and 11-10-1996 and have also heard counsel for the accused as well as counsel for  the  CBI  and  we are  of  the  opinion  that  the proper course for the High Court was to decide on the question of the requirement of sanction and if the High Court  could not  do so,  to  have stayed further  proceedings  till  that  vital  question  was answered. On the other question emanating from the order dated 9-10-1996, we find that the High Court  placed reliance on this  Court’s  decision in Salauddin  Abdulsamad  Shaikh v.  State  of Maharashtra which was a case in which the High Court,  while  granting  interim  anticipatory  bail, imposed certain conditions, one of which was that the accused should move for  regular  bail  before the Court which was in seisin of the case pending against him. The High Court also observed that the application should be disposed of uninfluenced by the  observations  made  in  the  earlier  order.  The special  leave  petition  was  directed  against  that order of  the High Court.  While dealing with that order, this Court observed that under Section 438 of  the  Code,  when  any  person  has  reason  to believe that he may be arrested on an accusation of  having committed a  non-bailable  offence,  the

5  (1998) 9 SCC 348 6 (2005) 1 SCC 608 7 (2005) 4 SCC 303

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High Court or the Court of Session may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail  and in passing that order,  it may  include  such  conditions  as  it  may  deem appropriate.  This  Court  further  observed  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. It was, therefore, pointed out that  it  was 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. By this, what  the  Court  desired  to  convey  was  that  an order  of  anticipatory bail  does not  enure till  the end of trial but it must be of limited duration as the regular court cannot be bypassed. The limited duration must be determined having regard to the facts of the case and the need to give the accused sufficient time to move the regular court for bail and  to  give  the  regular  court  sufficient  time  to determine the bail application. In other words, till the bail application is disposed of one way or the other the court may allow the accused to remain on  anticipatory  bail.  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.  This decision was not intended to convey that as soon as the accused persons are produced before the regular court the anticipatory bail ends even if the court is yet to decide the question of bail on merits. The

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decision  in  Salauddin  case has  to  be  so understood.”

In  Nirmal Jeet Kaur v. State of M.P. and another  8,

K.L. Verma (supra) in so far as it stated that “...or even a few

days thereafter to enable the accused persons to move the

higher court, if they so desire ...” was held to be in conflict

with the statutory requirement under Section 439. To quote:  

“13. The  grey  area  according  to  us  is  the following part of the judgment in K.L. Verma case “or  even  a  few  days  thereafter  to  enable  the accused persons to move the higher court, if they so desire”.

xxx  xxx   xxx   xxx

 20. In Salauddin case also this Court observed that the regular court has to be moved for  bail. Obviously, an application under Section 439 of the Code must be in a manner in accordance with law and  the  accused  seeking  remedy  under  Section 439 must ensure that it  would be lawful  for  the court  to  deal  with  the  application.  Unless  the applicant is in custody his making application only under  Section  439  of  the  Code  will  not  confer jurisdiction on the court to which the application is made.  The  view  regarding  extension  of  time  to “move”  the  higher  court  as  culled  out  from the decision  in  K.L.  Verma  case shall  have  to  be treated as having been rendered per incuriam, as no  reference  was  made  to  the  prescription  in

8 (2004) 7 SCC 558 7

Section 439 requiring the accused to be in custody. In State v.  Ratan Lal Arora it was held that where in a case the decision has been rendered without reference to statutory bars, the same cannot have any  precedential  value  and  shall  have  to  be treated as having been rendered per incuriam. The present  case  stands  at  par,  if  not,  on  a  better footing.  The  provisions  of  Section  439  do  not appear to have been taken note of.

xxx  xxx   xxx   xxx

  23. If the protective umbrella of Section 438 is extended  beyond  what  was  laid  down in Salauddin  case the  result  would  be  clear bypassing  of  what  is  mandated  in  Section  439 regarding  custody.  In  other  words,  till  the applicant avails remedies up to higher courts, the requirements of Section 439 become dead letter. No part of a statute can be rendered redundant in that manner.”

5. This Court in HDFC Bank Limited v. J.J. Mannan  9 has

referred  to  a  contention   based  on  the  Constitution  Bench

decision in Sibbia (supra) and yet it has taken the view that

the protection under Section 438 is only till the investigation

is completed and chargesheet is filed. To quote paragraphs 14

and 18 to 20 :-

“14. Referring  to  the  decision  of  the Constitution  Bench  in Gurbaksh  Singh

9  (2010) 1 SCC 679 8

Sibbia v. State of Punjab, wherein the application of  Section  438  CrPC  had  been  considered  in detail, Mr Dutta submitted that the said provision had been interpreted to be a beneficent provision relating  to  personal  liberty  guaranteed  under Section  21  of  the  Constitution.  Mr  Dutta submitted  that  the  Constitution  Bench  had observed  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 CrPC.

xxx  xxx   xxx   xxx

18. Furthermore,  it  has  also  been consistently  indicated  that  no  blanket  order could  be  passed  under  Section  438  CrPC  to prevent the accused from being arrested at all in connection  with  the  case.  To  avoid  such  an eventuality it was observed in  Adri Dharan Das case that anticipatory bail is given for a limited duration to enable the accused to surrender and to  obtain  regular  bail.  The  same  view  was reiterated in Salauddin case wherein it was, inter alia, observed that anticipatory bail should be of limited duration only and primarily 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.

19. The  object  of  Section  438  CrPC  has been repeatedly explained by this Court and the High Courts to mean that a person should not be harassed  or  humiliated  in  order  to  satisfy  the grudge or personal vendetta of the complainant. But at the same time the provisions of Section

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438 CrPC cannot also be invoked to exempt the accused from surrendering to the court after the investigation is complete and if charge-sheet is filed against him. Such an interpretation would amount to violence to the provisions of Section 438  CrPC,  since  even  though  a  charge-sheet may be filed against an accused and charge is framed  against  him,  he  may  still  not  appear before the court at all even during the trial.

20. Section 438 CrPC contemplates arrest at  the  stage  of  investigation  and  provides  a mechanism for an accused to be released on bail should  he  be  arrested  during  the  period  of investigation. Once the investigation makes out a  case  against  him  and  he  is  included  as  an accused in the charge-sheet, the accused has to surrender to the custody of the court and pray for  regular  bail.  On  the  strength  of  an  order granting  anticipatory  bail,  an  accused  against whom  charge  has  been  framed,  cannot  avoid appearing before the trial court.

21. If what has been submitted on behalf of  the appellant  that Respondent 1 has never appeared  before  the  trial  court  is  to  be accepted, it will lead to the absurd situation that charge was framed against the accused in his absence, which would defeat the very purpose of sub-section (2) of Section 240 CrPC.”

6.       In  Satpal  Singh v. The  State  of  Punjab  10 at

paragraph 14, it has been held: “14. In  any  case,  the  protection  under

Section  438,  Cr.P.C.  is  available  to  the

10 (2018) SCC Online SC415 10

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. Merely because an accused  was  under  the  protection  of anticipatory bail granted under Section 438 Cr.P.C.  that  does  not  mean  that  he  is automatically entitled to regular bail under Section  439 Cr.P.C.  The satisfaction  of  the court for granting protection under Section 438 Cr.P.C. is different from the one under Section 439 Cr.P.C. while considering regular bail.”

7.      It is relevant to point out that placing reliance on Sibbia

(supra), the two-Judge Bench in Mhetre (supra) has taken the

stand  that  the  decisions  in  Salauddin (supra),  KL Verma

(supra),  Adri Dharan Das (supra) and  Sunita Devi (supra)

are per incuriam. To quote:-

“123. 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

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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.

124. 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.

125. In  Naresh Kumar Yadav v.  Ravindra Kumar a two-Judge Bench of this Court observed: (SCC p. 632d)

“the  power  exercisable  under  Section 438 CrPC is  somewhat  extraordinary  in character  and  it  [should  be  exercised] only in exceptional cases.”

This  approach  is  contrary  to  the  legislative intention and the Constitution Bench’s decision in Sibbia case.

xxx  xxx   xxx   xxx

127. 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 case1. These judgments and orders are also contrary  to  the  legislative  intention.  The  Court would  not  be  justified  in  rewriting  Section  438 CrPC.

xxx  xxx   xxx   xxx 12

138. 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.”

8. 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. 9. Also  having  heard  learned  counsel  appearing  on  both

sides,  we are of the  prima facie  view that  the Constitution

Bench in Sibbia (supra) has not laid down the law that once

an anticipatory bail, it is an anticipatory bail forever.   

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10. In  Sibbia (supra), this Court has briefly dealt with the

question of duration of anticipatory bail. It seems to us that

the discussion primarily pertained to grant of anticipatory bail

at  the  pre-FIR  stage  (see  paragraph  43  quoted  below).  It

appears  that  there  are  indications  in  Sibbia (supra)  that

anticipatory  bail  may  be  for  a  limited  period.  To  quote

paragraphs 19, 40, 42 and 43:-

“19. …  While  granting  relief  under  Section 438(1),  appropriate  conditions  can  be  imposed under  Section  438(2)  so  as  to  ensure  an uninterrupted  investigation.  One  of  such conditions can even be that in  the event of the police  making  out  a  case  of  a  likely  discovery under Section 27 of the Evidence Act, the 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 to the effect that 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 so have surrendered himself to the police. The broad foundation of this rule is stated to be that Section 46 of the Code of Criminal Procedure does  not  contemplate  any  formality  before  a

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person  can  be  said  to  be  taken  in  custody: submission to the custody by word or action by a person  is  sufficient.  For  similar  reasons,  we  are unable  to  agree that  anticipatory  bail  should  be refused if a legitimate case for the remand of the offender  to  the  police  custody  under  Section 167(2)  of  the  Code  is  made  out  by  the investigating agency.

xxx  xxx   xxx   xxx

40. We have said that there is one proposition formulated by the High Court with which we are inclined to agree. That is proposition (2). We agree that  a  ‘blanket  order’  of  anticipatory bail  should not generally be passed. This flows from the very language  of  the  section  which,  as  discussed above, requires the applicant to show that he has “reason  to  believe”  that  he  may  be  arrested.  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 Section 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.  The rationale of a direction under Section 438(1) is the belief  of  the  applicant  founded  on  reasonable grounds that he may be arrested for a non-bailable offence. It is unrealistic to expect the applicant to draw up his application with the meticulousness of a  pleading  in  a  civil  case  and  such  is  not

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requirement of the section. But specific events and facts must be disclosed by the applicant in order to enable the court to judge of the reasonableness of his belief, the existence of which is the sine qua non  of  the  exercise  of  power  conferred  by  the section.

xxx  xxx   xxx   xxx

42. There  was  some  discussion  before  us  on certain minor modalities regarding the passing of bail orders under Section 438(1). Can an order of bail be passed under the section without notice to the Public Prosecutor? It can be. But notice should issue to the Public Prosecutor or the Government Advocate forthwith and the question of bail should be  re-examined  in  the  light  of  the  respective contentions  of  the  parties.  The ad interim order too  must  conform  to  the  requirements  of  the section and suitable conditions should be imposed on the applicant  even at  that  stage.  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.

43. During the last couple of years this Court, while dealing with appeals against orders passed by various High Courts,  has granted anticipatory bail to many a person by imposing conditions set out  in  Section 438(2)  (i),  (ii)  and (iii).  The court

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has, in addition, directed in most of those cases that (a) the applicant should surrender himself to the police for a brief period if a discovery is to be made under Section 27 of the Evidence Act or that he should be deemed to have surrendered himself if  such  a  discovery  is  to  be  made.  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.  These orders,  on the whole,  have worked satisfactorily, causing the least inconvenience to the individuals concerned  and  least  interference  with  the investigational rights of the police. The court has attempted through those orders to strike a balance between the individual's right to personal freedom and the  investigational  rights  of  the  police.  The appellants who were refused anticipatory bail  by various courts have long since been released by this Court under Section 438(1) of the Code.”

         (Emphasis supplied)

11. 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 CrPC should be limited to a

fixed  period  so  as  to  enable  the  person  to

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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.

12. Accordingly,  we  direct  the  Registry  to  place  the  papers

before Hon’ble the Chief Justice of India.

………………………......................J.                      [KURIAN JOSEPH]  

…………………….........................J.                       [MOHAN M. SHANTANAGOUDAR]  

…………………….........................J.                      [NAVIN SINHA]

NEW DELHI; MAY 15,  2018.

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