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

2

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

3

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.”

4

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

5

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

6

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

9

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

11

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 case

1

. 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.

13

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

14

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

15

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

16

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

17

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.

18