Salauddin Abdulsamad Shaikh v. State of Maharashtra
Supreme Court of India, 11 December 1995, 3 judges, 1996 AIR 1042; 1996 SCC (1) 667; JT 1995 (9) 165
Anticipatory bail should ordinarily be of limited duration, after which the accused must apply for regular bail to the court dealing with the case; the High Court correctly fixed an outer date and directed the petitioner to the regular court.
Facts
The petitioner applied to the High Court under Section 438 of the Code of Criminal Procedure and obtained an ad interim anticipatory bail order operating up to 26.9.1995, on conditions including daily reporting at the police station, which he said he complied with. When the matter came up for final disposal on that date, the same Judge directed him to move a regular bail application before the court seized of the criminal case, to be decided uninfluenced by the earlier order of 13.9.1995. The petitioner challenged that order by a special leave petition. Under an interim order of the Supreme Court extending the duration of the order, he had not applied to the regular court.
Questions before the Court
- Was the High Court right to limit anticipatory bail to a fixed date and then direct the accused to apply for regular bail before the court seized of the case?
What the Court held
- Anticipatory bail is granted in anticipation of arrest in non-bailable cases, but the regular court which is to try the offender is not to be by-passed. The High Court rightly fixed an outer date for the bail and, on its expiry, directed the petitioner to the regular court.
- Because anticipatory bail is granted when investigation is incomplete and the court does not know the nature of the evidence, such orders should be of limited duration. On expiry, the court granting it should ordinarily leave the matter to the regular court to decide bail on the evidence after investigation has progressed or the charge sheet is filed.
- The court granting anticipatory bail should not ordinarily substitute itself for the original court, which must decide whether the accused is entitled to bail on the material before it.
- The special leave petition was not entertained, but the petitioner was allowed to apply for bail before the regular court within two weeks.
Why it matters
The order states that anticipatory bail under Section 438 should ordinarily be time limited, and that on its expiry the accused must seek regular bail from the court dealing with the case, which decides on the evidence then available. It treats fixing an outer date as the correct procedure, so that the grant of anticipatory bail does not displace the trial court.
In the Court's words
Copied from the official judgment; each passage links to its page.
“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.”
“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 by-passed 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.”
“It should be realised that an order of anticipatory bail could even be obtained in cases of 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.”
Provisions interpreted
- Section 438, Code of Criminal Procedure, 1973Now: BNSS 482 (NCRB correspondence table)
Case and bench
- Parties
- Salauddin Abdulsamad Shaikh v. The State of Maharashtra
- Case
- Special Leave Petition (number not printed in the file), arising from Criminal Application No. 2230 of 1995 in the High Court
- Decided
- 11 December 1995
- Bench
- Ahmadi, A.M. (CJ), Sen, S.C. (J), Paripoornan, K.S. (J)
- Opinions
- Order of the Court; no author is named.