Judges: Arun Mishra, Indira Banerjee, Vineet Saran, M.R. Shah and S. Ravindra Bhat, JJ.

Facts:

In the light of the conflicting views of the different Benches of varying strength on the issue of period for which protection can be grated to a person under Section 438 of Cr.PC, more particularly in the cases of Shri Gurbaksh Singh Sibbia and Ors. v. State of Punjab MANU/SC/0215/1980, Siddharam Satlingappa Mhetre v. State of Maharashtra MANU/SC/1021/2010, Badeshi Bipinbhai Sheth v. State of Gujarat MANU/SC/0949/2015, on one side and in the cases of Salauddin Abdulsamad Shaikh v. State of Maharashtra MANU/SC/0280/1996, subsequently followed in the case of K.L. Verma v. State and Anr. MANU/SC/1493/1998, Sunita Devi v. State of Bihar MANU/SC/1032/2004, Nirmal Jeet Kaur v. State of M.P. MANU/SC/0695/2004, HDFC Bank Limited v. J.J. Mannan MANU/SC/1923/2009, and Satpal Singh v. State of Punjab MANU/SC/0413/2018, the matter has been placed before present bench.

Issues:

(i) Whether the protection granted to a person Under Section 438 Code of Criminal Procedure should be limited to a fixed period so as to enable the person to surrender before the Trial Court and seek regular bail?

(ii) Whether the life of an anticipatory bail should end at the time and stage when the Accused is summoned by the court?

Law:

Code of Criminal Procedure, 1973 - Section 438 - Direction for grant of bail to person apprehending arrest.

Contentions:

Appellant

(i) There should necessarily be conditions imposed in granting a pre-arrest bail order and it cannot be a blanket order.

(ii) In terms of the Code of Criminal Procedure Under Section 209(b) and Section 240(2), the Accused can be remanded to custody by the Magistrate during the stage of inquiry, if he considers it necessary to do so at the stage of the submission of the final report/charge sheet or committal proceedings. It is imperative therefore that if the Accused takes pre-arrest bail during the earlier state of criminal investigation, the power of the Magistrate under the said provisions of Code of Criminal Procedure should be maintained including the power of the Magistrate to send the Accused to the custody.

Respondent

(i) As a normal rule, it is not required to limit the duration of anticipatory bail. However, court while granting anticipatory bail may, keeping in view the peculiar facts and circumstances of the case, limit the duration of anticipatory bail.The life of anticipatory bail would not end on filing of charge sheet.

Amicus Curiae

(i) The power vested by the Parliament on superior criminal courts in the order of hierarchy, such as Sessions Court and High Court, is a power entailing conferment of absolute discretion in deciding whether an application for anticipatory bail may be allowed or rejected, and also inheres in this discretion, the additional power to limit the duration of anticipatory bail to any point in time, or to any stage as the Courts may deem fit in the facts and circumstances of the case, and in view of all the attending circumstances;

(ii) The order granting anticipatory bail will not interdict the power of the investigating agency to continue investigation of the case or would prevent the investigating agency to ask for and be granted, respectively, Police Custody of the Accused for the purposes of the investigation and where the investigating officer feels that the custody of the Accused is necessary. Further since police custody can be granted only in the first 14 days of the arrest, the decision to restrict the duration of the bail would balance the twin competing interest, viz., the individual liberty and the sovereign power of the police to investigate the case;

(iii) The life of the order granting anticipatory bail can be restricted, which may be at a stage till either the FIR is filed in cases where such order is granted on an reasonable apprehension of being arrested in relation to a cognizable case, where the FIR or Complaint is yet not filed; 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.

(iv) Alternatively such order may endure till filing of charge sheet which has to be filed within 90 days of the arrest. It may be remembered here that non-filing of charge sheet within 90 days of arrest entitles the Accused, statutory bail or default bail, as a matter of right, in view of express stipulation contained in Section 167 of the Code of Criminal Procedure, 1973.

(v) Also, in case where an Accused is released on anticipatory bail, the investigation authorities may not be subjected to adherence to filing of charge sheet within 90 days as there would be no consequence as the Accused is already enlarged on bail. 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 arrest, leaving it open to the Accused to apply for regular bail Under Section 437/439 of the Code and equally leaving it open for the Court to consider such an application without in any way being influenced by the fact of grant of anticipatory bail, as at that stage the considerations are at a very early stage where the investigation itself may be in nascent stage or the materials are yet to be gathered and the Accused is yet to be interrogated; and

(vi) Anticipatory bail once granted can also be cancelled, either in appeal to a superior forum on challenge being made or by the same court on establishment of well accepted and legally enshrined principles relating to cancellation of bail.

Analysis:

Limitation to protection granted under Section 438 Cr.PC

(i) The expression "anticipatory bail" has not been defined in the Code. As observed by this Court in the case of Balchand Jain (supra), "anticipatory bail" means "bail in anticipation of arrest". An application for "anticipatory bail" in anticipation of arrest could be moved by the Accused at a stage before an FIR is filed or at a stage when FIR is registered but the charge sheet has not been filed and the investigation is in progress or at a stage after the investigation is concluded. Power to grant "anticipatory bail" Under Section 438 of the Code of Criminal Procedure vests only with the Court of Sessions or the High Court. Therefore, ultimately it is for the concerned court to consider the application for "anticipatory bail" and while granting the "anticipatory bail" it is ultimately for the concerned court to impose conditions including the limited period of "anticipatory bail", depends upon the stages at which the application for anticipatory bail is moved.

(ii) A person in whose favour a pre-arrest bail order is made Under Section 438 of the Code of Criminal Procedure has to be arrested. However, once there is an order of pre-arrest bail/anticipatory bail, as and when he is arrested he has to be released on bail. Otherwise, there is no distinction or difference between the pre-arrest bail order Under Section 438 and the bail order Under Section 437 & 439 of the Code of Criminal Procedure.

(iii) The only difference between the pre-arrest bail order Under Section 438 and the bail order Under Sections 437 and 439 is the stages at which the bail order is passed. The bail order Under Section 438 of the Code of Criminal Procedure is prior to his arrest and in anticipation of his arrest and the order of bail Under Sections 437 and 439 is after a person is arrested. A bare reading of Section 438 of the Code of Criminal Procedure 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 Code of Criminal Procedure.

(iv) However, the conditions can be imposed by the concerned court while granting pre-arrest bail order including limiting the operation of the order in relation to a period of time if the circumstances so warrant, more particularly the stage at which the "anticipatory bail" application is moved, namely, whether the same is at the stage before the FIR is filed or at the stage when the FIR is filed and the investigation is in progress or at the stage when the investigation is complete and the charge sheet is filed.

Justice S. Ravindra Bhat

(i) The Court holds that the view expressed in Salauddin Abdulsamad Shaikh, K.L. Verma, Nirmal Jeet Kaur, Satpal Singh, Adri Dharan Das, HDFC Bank, J.J. Manan and Naresh Kumar Yadav (supra) about the Court of Sessions, or the High Court, being obliged to grant anticipatory bail, for a limited duration, or to await the course of investigation, so as the "normal court" not being "bye passed" or that in certain kinds of serious offences, anticipatory bail should not be granted normally-including in economic offences, etc are not good law. The observations - which indicate that such time related or investigative event related conditions, should invariably be imposed at the time of grant of anticipatory bail are therefore, overruled.

(ii) The judgment in Sibbia, is an authority that such conditions can be imposed, but not in a routine or ordinary manner and that such conditions then become an inflexible "formula" which the courts would have to follow. Therefore, courts and can, use their discretion, having regard to the offence, the peculiar facts, the role of the offender, circumstances relating to him, his likelihood of subverting justice (or a fair investigation), likelihood of evading or fleeing justice-to impose special conditions. Imposing such conditions, would have to be on a case to case basis, and upon exercise of discretion by the court seized of the application Under Section 438.

(iii) Thus, imposing conditions such as those stated in Section 437(2) while granting bail, are normal; equally, the condition that in the event of the 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. Other conditions, which are restrictive, are not mandatory; nor is there any invariable Rule that they should necessarily be imposed or that the anticipatory bail order would be for a time duration, or be valid till the filing of the FIR, or the recording of any statement Under Section 161, Code of Criminal Procedure, etc. Other conditions may be imposed, if the facts of the case so warrant.

Life of anticipatory bail

(i) The life of an anticipatory bail does not end generally at the time and stage when the Accused is summoned by the court, or after framing charges, but can also continue till the end of the trial.

(ii) However, 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.

Conclusion:

(i) The protection granted to a person Under Section 438 Code of Criminal Procedure 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 (including fixed nature of relief, or its being tied to an event) etc.

(ii) 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.

Points need to be kept in mind by courts, dealing with applications Under Section 438, Code of Criminal Procedure:

(1) Consistent with the judgment in Shri Gurbaksh Singh Sibbia and Ors. v. State of Punjab MANU/SC/0215/1980, when a person complains of apprehension of arrest and approaches for order, the application should be based on concrete facts (and not vague or general allegations) relatable to one or other specific offence. The application seeking anticipatory bail should contain bare essential facts relating to the offence, and why the applicant reasonably apprehends arrest, as well as his side of the story. These are essential for the court which should consider his application, to evaluate the threat or apprehension, its gravity or seriousness and the appropriateness of any condition that may have to be imposed. It is not essential that an application should be moved only after an FIR is filed; it can be moved earlier, so long as the facts are clear and there is reasonable basis for apprehending arrest.

(2) It may be advisable for the court, which is approached with an application Under Section 438, depending on the seriousness of the threat (of arrest) to issue notice to the public prosecutor and obtain facts, even while granting limited interim anticipatory bail.

(3) Nothing in Section 438 Code of Criminal Procedure, compels or obliges courts to impose conditions limiting relief in terms of time, or upon filing of FIR, or recording of statement of any witness, by the police, during investigation or inquiry, etc. While considering an application (for grant of anticipatory bail) the court has to consider the nature of the offence, the role of the person, the likelihood of his influencing the course of investigation, or tampering with evidence (including intimidating witnesses), likelihood of fleeing justice (such as leaving the country), etc. The courts would be justified - and ought to impose conditions spelt out in Section 437(3), Code of Criminal Procedure [by virtue of Section 438(2)]. The need to impose other restrictive conditions, would have to be judged on a case by case basis, and depending upon the materials produced by the state or the investigating agency. Such special or other restrictive conditions may be imposed if the case or cases warrant, but should not be imposed in a routine manner, in all cases. Likewise, conditions which limit the grant of anticipatory bail may be granted, if they are required in the facts of any case or cases; however, such limiting conditions may not be invariably imposed.

(4) Courts ought to be generally guided by considerations such as the nature and gravity of the offences, the role attributed to the applicant, and the facts of the case, while considering whether to grant anticipatory bail, or refuse it. Whether to grant or not is a matter of discretion; equally whether and if so, what kind of special conditions are to be imposed (or not imposed) are dependent on facts of the case, and subject to the discretion of the court.

(5) Anticipatory bail granted can, depending on the conduct and behavior of the Accused, continue after filing of the charge sheet till end of trial.

(6) An order of anticipatory bail should not be "blanket" in the sense that it should not enable the Accused to commit further offences and claim relief of indefinite protection from arrest. It should be confined to the offence or incident, for which apprehension of arrest is sought, in relation to a specific incident. It cannot operate in respect of a future incident that involves commission of an offence.

(7) An order of anticipatory bail does not in any manner limit or restrict the rights or duties of the police or investigating agency, to investigate into the charges against the person who seeks and is granted pre-arrest bail.

(8) The observations in Sibbia regarding "limited custody" or "deemed custody" to facilitate the requirements of the investigative authority, would be sufficient for the purpose of fulfilling the provisions of Section 27, in the event of recovery of an article, or discovery of a fact, which is relatable to a statement made during such event (i.e. deemed custody). In such event, there is no question (or necessity) of asking the Accused to separately surrender and seek regular bail. Sibbia (supra) had observed that "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.

(9) It is open to the police or the investigating agency to move the court concerned, which grants anticipatory bail, for a direction Under Section 439(2) to arrest the Accused, in the event of violation of any term, such as absconding, non-cooperating during investigation, evasion, intimidation or inducement to witnesses with a view to influence outcome of the investigation or trial, etc.

(10) The court referred to in para (9) above is the court which grants anticipatory bail, in the first instance, according to prevailing authorities.

(11) The correctness of an order granting bail, can be considered by the appellate or superior court at the behest of the state or investigating agency, and set aside on the ground that the court granting it did not consider material facts or crucial circumstances. (See Prakash Kadam & Etc. Etc v. Ramprasad Vishwanath Gupta and Anr. MANU/SC/0616/2011 Jai Prakash Singh (supra) State through C.B.I. v. Amarmani Tripathi MANU/SC/0677/2005. This does not amount to "cancellation" in terms of Section 439(2), Code of Criminal Procedure.

(12) The observations in Siddharam Satlingappa Mhetre v. State of Maharashtra and Ors. MANU/SC/1021/2010 (and other similar judgments) that no restrictive conditions at all can be imposed, while granting anticipatory bail are hereby overruled. Likewise, the decision in Salauddin Abdulsamad Shaikh v. State of Maharashtra (MANU/SC/0280/1996 ) and subsequent decisions (including K.L. Verma v. State and Anr. MANU/SC/1493/1998, Sunita Devi v. State of Bihar and Anr. MANU/SC/1032/2004 , Adri Dharan Das v. State of West Bengal MANU/SC/0120/2005 , Nirmal Jeet Kaur v. State of M.P. and Anr MANU/SC/0695/2004 , HDFC Bank Limited v. J.J. Mannan MANU/SC/1923/2009 , Satpal Singh v. the State of Punjab MANU/SC/0413/2018 and Naresh Kumar Yadav v. Ravindra Kumar MANU/SC/8067/2007) which lay down such restrictive conditions, or terms limiting the grant of anticipatory bail, to a period of time are hereby overruled.

Important precedents:

(i) Shri Gurbaksh Singh Sibbia and Ors. v. State of Punjab MANU/SC/0215/1980

(ii) Siddharam Satlingappa Mhetre v. State of Maharashtra MANU/SC/1021/2010

(iii) Bhadresh Bipinbhai Sheth v. State of Gujarat MANU/SC/0949/2015

(iv) Salauddin Abdulsamad Shaikh v. State of Maharashtra MANU/SC/0280/1996

(v) K.L. Verma v. State and Anr. MANU/SC/1493/1998

Sunita Devi v. State of Bihar MANU/SC/1032/2004

Nirmal Jeet Kaur v. State of M.P. MANU/SC/0695/2004

HDFC Bank Limited v. J.J. Mannan MANU/SC/1923/2009

Satpal Singh v. State of Punjab MANU/SC/0413/2018