This article has been written by Ms. Kamini, a 3rd Year LL.B Student From,               Campus Law Centre, Delhi University

Decided on: January 29, 2020

INTRODUCTION

Anticipatory Bail is not defined in criminal procedure code, according to section-438 of the Cr.P.C., any person who has apprehension of getting arrested for a non-bailable offences, session court and High court have power to grant anticipatory bail. But this section leaves the question regarding life of duration of an anticipatory bail. This loophole creates major controversies due to conflicting opinion on the judgments regarding time limit of Anticipatory Bail. Finally, in this case 5-Judge Constitutional Bench of Justice M.R. Shah, Justice Arun Mishra, Justice Indira Banerjee, Justice Vineet Saran, Justice Ravindra Bhat, clear all the controversies regarding Anticipatory Bail. 

FACTS OF THE CASE

In this case special leave petition file before the Hon’ble Supreme Court for regarding the scope of section-438 of the Cr.P.C, which provides for the provision of the Anticipatory Bail. The confusion arise when different benches giving different and conflicting opinion regarding section-438 of the Code, whether the time period of Anticipatory bail should be restricted or not. 

ISSUSE IN THIS CASE:-

• 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.

• Whether the life of an anticipatory bail should end at the time and stage when the accused is summoned by the court.

CONTENTION PRESENTED BY COUNSELS

Shri Harin P.Raval learned Senior Advocate appearing as Amicus Curiae said:

• That even though Anticipatory Bail has not been defined in the Code. Anticipatory bail means “bail in anticipation of arrest”[ Balchand Jain vs State of M.P.(1976)].
• That the Law Commission of India in its 41st Report has stated the necessity for granting Anticipatory bail, because of false cases which was filed by influential people against their rival to disgrace them or detained them in jail for some days.
• Anticipatory Bail can be applied at any stage even if FIR no lodged or where FIR is lodged but the investigation has not yet begun.
• Shri Raval relied on the observation of Gurbaksh Singh Sibba case, and it is submitted that the Constitutional bench has to see this section in accordance with Article -21 of the Constitution of India, it should be exercise to balance the two competing interests, first is to protect the liberty of the accused and second is the sovereign power of the police to conduct a fair investigation. In this case held that there is no limit of anticipatory bail, and it is the discretion of the court to limit the time period of the anticipatory bail.
• That Anticipatory Bail can be cancelled by either on appeal to a superior court or by the same court through the petition of cancellation of bail.

Shri. K.V. Vishwanathan Learned Senior Advocate appeared as Amicus Curiae said:

• That The power provided under Section 438 of the Cr.P.C. is similar to the powers granted under Sections 437 and 439 of the Cr.P.C. Additionally, a bail granted under Section 438 shall have the same effect as an order of conviction or until an affirmative direction is issued under Section 439(2) of the Code. 
• That the section-438 of the Code serves as a safeguard to ensure that the power of arrest is regulated under the scrutiny of the courts. This power is given to supervisory level not at the magisterial level so that judicial intervention can be done properly to balance the right of the accused and the power of arrest.
• That even after the bare reading of the section -438 of the Code made clear that there is nowhere shown that the pre arrest bail under section 438 of the Code has to be time bound.
• It is submitted that purpose of section-438 of the Code is to provide protection during the investigation but after that you have to apply for regular bail upon submission of the charge sheet so that it shall not affect the right of investigation agency to seek to custodial investigation for further investigation.

Shri Tushar Mehta, Learned Solicitor General of India said:

• That the “normal rule” is that there should be no restriction on the bail but  after giving justified reason they have the power to restrict the time period of the anticipatory bail. Such type of bail will be terminated when the person is summoned by the court.

CITIED CASE

Gurbaksh Singh Sibbia vs State of Punjab,(1980): In this case supreme court interpreted section-438, of the Cr.P.C. in the light of Article-21 of the Indian Constitution and said that courts has discretion to imposed conditions which were appropriate, reasonable and necessary in the peculiar circumstances of a given case while granting Anticipatory Bail. To protect the liberty of the accused and the manage the sovereign power of the police to conduct investigation.

HDFC Bank Limited vs J.J.Mannan(2010): In this case , Supreme Court held that protection under section-438 of the Code ,is only  available  until the investigation is completed after that accused has to filed the regular bail and it should be clear that section 438 of the Code, shall not affect the right of investigation agency to seek custodial interrogation and in conducting further investigation.

Siddharam Satlingappa Mhetre vs State of Maharashtra And Ors.(2011): In this case Supreme Court give the contrary judgment of Sibba case and held that once a anticipatory bail is granted it cannot be limited by time, it ordinarily subsist during the entire duration of the trial.

OBSERVATION

• While answering the First issues, The Hon’ble Court said that Anticipatory Bail under section-438 of the Code, should not be limited to fixed period of time, it should be in favour of accused. The court can put any appropriate conditions, according to the circumstances.
• The court while answering Second issue, said that life of an Anticipatory Bail generally doesn’t end when accused is summoned by the court, or after framing of charges, but can continue till the end of the trial. Even though it is open to the court to limit the tenure of anticipatory bail if there is any special or peculiar features necessitating.
• That the Anticipatory Bail should not be used as a “blanket” in the sense that the accused further commit offences and used that relief for indefinite protection from arrest. It should be confined to the offence or incident for which the anticipatory bail is applied. The accused can filed at any stage, even after an FIR is filled, as long as there is reasonable basis for apprehending arrest.
• That with regard to the conflicting opinion in different cases, supreme court said that judgment in “Siddharam Mhetre” case are in bad law  and they need to be overruled i.e. that no conditions can be imposed while granting an order of anticipatory bail, is incorrect, and judgment in “Gurbaksh Sibbia” case needs to be reiteration .
• That the courts have to maintain the distinction between the section 437 and 438 of the Code, while granting anticipatory bail. For that bail accused has to arrest to first then he will be release on anticipatory bail

JUDGMENT

Thus, the Supreme Court in his Five Judge Bench unanimously held that according to section-438 of the Cr.P.C., Anticipatory Bail should not be time bound. The court under section 437(3) read with 438(2) of Cr.P.C can impose condition if it is necessary to do, but it should not be imposed in a routine manner, this need to be exercised cautiously with due care. The life span of Anticipatory bail extended till the time trial gets concluded.

REFERENCE

https://indiankanoon.org/doc/123660783/