Law Maker

Sushila Aggarwal v. State (NCT of Delhi)

Supreme Court of India · 29 January 2020 · 5 judges

Anticipatory bail under Section 438 CrPC need not be limited to a fixed period and may continue till the end of trial, though courts may impose conditions, including limits on time, where the facts of a case require.

Facts

In special leave petitions filed by Sushila Aggarwal and others, a three-judge Bench on 15 May 2018 noticed conflicting views on Section 438 CrPC. One line of cases, beginning with Salauddin Abdulsamad Shaikh and including K.L. Verma, Sunita Devi, Nirmal Jeet Kaur, HDFC Bank v. J.J. Mannan and Satpal Singh, held that anticipatory bail should be limited in time or tied to an event such as the filing of a charge sheet, after which the accused must seek regular bail. Another line, Siddharam Satlingappa Mhetre and Bhadresh Bipinbhai Sheth, held that no such conditions should be imposed. The five-judge Bench in Gurbaksh Singh Sibbia had not taken an inflexible approach. Two questions were referred to a five-judge Bench.

Questions before the Court

  1. Whether the protection granted under Section 438 CrPC should be limited to a fixed period so that the person must surrender before the trial court and seek regular bail.
  2. Whether the life of an anticipatory bail order should end when the accused is summoned by the court.

What the Court held

  • Protection under Section 438 should not invariably be limited to a fixed period; it inures in favour of the accused without restriction on time. Normal conditions under Section 437(3) read with Section 438(2) should be imposed, and where specific facts so require the court may impose other conditions, including a fixed period or a link to an event.
  • An anticipatory bail order does not normally end when the accused is summoned or charges are framed; it can continue till the end of the trial, unless special features lead the court to limit its duration.
  • The application must rest on concrete facts relating to a specific offence and may be moved before an FIR is filed. The order should not be blanket; it is confined to the incident for which arrest is apprehended and does not limit the police's power to investigate.
  • The police may approach the court that granted anticipatory bail for a direction under Section 439(2) to arrest the accused on breach of conditions. A superior court may set aside an order that ignored material facts; this is not cancellation under Section 439(2).
  • The observations in Mhetre that no restrictive conditions can be imposed, and Salauddin and the decisions following it that limit anticipatory bail to a period of time, are overruled.

Why it matters

The Bench reaffirmed the conclusions of the Constitution Bench in Gurbaksh Singh Sibbia that the discretion under Section 438 is wide and should not be cut down by reading in conditions the statute does not contain. It overruled both lines of conflicting decisions on the points stated and set out a list of considerations to guide courts dealing with anticipatory bail applications, including the use of 'deemed custody' for Section 27 of the Evidence Act.

In the Court's words

Copied from the official judgment; each passage links to its page.

“the restrictive manner in which Section 438 of the Cr.PC has been interpreted in Salauddin Abdulsamad Shaikh v. State of Maharashtra 1996 (1) SCC 667 is incorrect. Therefore, we agree that Salauddin (supra) and other cases which have followed it needs to be overruled. Similarly, the wide interpretation in Siddharam Satlingappa Mhetre v. State of Maharashtra & Ors. 2011 (1) SCC 694, i.e. that no conditions can be imposed while granting an order of anticipatory bail, is incorrect. Mhetre (supra) to that extent and other judgments which have followed it are accordingly overruled.”
Arun Mishra, Indira Banerjee and Vineet Saran JJ.Page 124 of the judgment
“(1) Regarding Question No. 1, this court holds that the protection granted to a person under Section 438 Cr. PC 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.”
Page 126 of the judgment
“(2) As regards the second question referred to this court, it is held that 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.”
Page 127 of the judgment
“(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.”
Page 130 of the judgment

Provisions interpreted

Related judgments

  • Follows Gurbaksh Singh Sibbia v. State of Punjab (1980)“the conclusions in Shri Gurbaksh Singh Sibbia and others v. State of Punjab 1980 (2) SCC 565 needs reiteration” (page 124)
  • Overrules Siddharam Satlingappa Mhetre v. State of Maharashtra (2010)“Similarly, the wide interpretation in Siddharam Satlingappa Mhetre v. State of Maharashtra & Ors. 2011 (1) SCC 694, i.e. that no conditions can be imposed while granting an order of anticipatory bail, is incorrect. Mhetre (supra) to that extent and other judgments which have followed it are accordingly overruled.” (page 124)

Case and bench

Parties
Sushila Aggarwal v. State (NCT of Delhi)
Case
Special Leave Petition (Criminal) Nos. 7281-7282 of 2017
Decided
29 January 2020
Bench
Arun Mishra, Indira Banerjee, Vineet Saran, M.R. Shah, S. Ravindra Bhat
Opinions
Unanimous. M.R. Shah J. and S. Ravindra Bhat J. wrote concurring judgments; Arun Mishra, Indira Banerjee and Vineet Saran JJ. agreed with both in a short separate opinion, and all five judges signed the final conclusions answering the reference.

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