# SUSHILA AGGARWAL AND OTHERS v. STATE (NCT OF DELHI) AND ANOTHER

- **Citation:** [2020] 2 S.C.R. 1
- **Court:** Supreme Court of India
- **Decided:** 2020-01-29
- **Bench:** Arun Mishra, Indira Banerjee, Vineet Saran, M. R. Shah, S. Ravindra Bhat
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sushila-aggarwal-and-others-v-state-nct-of-delhi-and-another-34344
- **Pages:** 131

## Headnote

Code of Criminal Procedure, 1973 - ss.437, 438, 439 and
167(2) - Order u/s.438 granting anticipatory bail - Life and
operation of - Conflicting views of different Benches of varying
strength as to whether the protection granted u/s.438 should be
limited to a fixed period so as to enable the person to surrender
before 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 - Reference to larger Bench - Held: (Per
Curiam) Protection granted u/s.438 should not invariably be limited
to a fixed period; it should inure in favour of the accused without
any restriction on time - Normal conditions u/s.437(3) r/w s.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. - Further, 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 - Observations in Siddharam
Satlingappa Mhetre case (and other similar judgments) that no
restrictive conditions at all can be imposed, while granting
anticipatory bail are overruled - Likewise, the decision in Salauddin
Abdulsamad Shaikh case and subsequent decisions which lay down
such restrictive conditions, or terms limiting the grant of anticipatory
bail, to a period of time are overruled - Guiding principles
enumerated for Courts to follow while dealing with applications
u/s.438 - Criminal Procedure Code (Amendment) Act, 2005 - Code
of Criminal Procedure Amendment Act, 2018 - Penal Code, 1860 -
 [2020] 2 S.C.R. 1
1
A
B
C
D
E
F
G
H
2
SUPREME COURT REPORTS
[2020] 2 S.C.R.
ss.376(3), 376AB, 376DA, 376DB - Constitution of India - Art.21
- Evidence Act, 1872 - s.27 - Interpretation of Statutes.
Answering the referred questions, the Court
HELD: 1.1 PER M. R. SHAH, J.
The expression "anticipatory bail" has not been defined in
the Code. As observed by Supreme Court in the case of Balchand
Jain, "anticipatory bail" means "bail in anticipation of arrest".
As held, the expression "anticipatory bail" is a misnomer
inasmuch as it is not as if bail is presently granted by the Court 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 Cr.P.C. 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.
A person in whose favour a pre-arrest bail order is made under
Section 438 of the Cr.P.C. 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 Cr.P.C. 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 Cr.P.C. is prior to his arrest and in
anticipation of his arrest and the order of bail under Sections 437
and

## Text

_Characters 0–39,996 of 314,040. This is a partial read: ask again with offset=39996 for what follows._

A
B
C
D
E
F
G
H
1
SUSHILA AGGARWAL AND OTHERS
v.
STATE (NCT OF DELHI) AND ANOTHER
(Special Leave Petition (Criminal) Nos. 7281-7282 of 2017)
JANUARY 29, 2020
[ARUN MISHRA, INDIRA BANERJEE, VINEET SARAN,
M. R. SHAH AND S. RAVINDRA BHAT, JJ.]
Code of Criminal Procedure, 1973 - ss.437, 438, 439 and
167(2) - Order u/s.438 granting anticipatory bail - Life and
operation of - Conflicting views of different Benches of varying
strength as to whether the protection granted u/s.438 should be
limited to a fixed period so as to enable the person to surrender
before 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 - Reference to larger Bench - Held: (Per
Curiam) Protection granted u/s.438 should not invariably be limited
to a fixed period; it should inure in favour of the accused without
any restriction on time - Normal conditions u/s.437(3) r/w s.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. - Further, 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 - Observations in Siddharam
Satlingappa Mhetre case (and other similar judgments) that no
restrictive conditions at all can be imposed, while granting
anticipatory bail are overruled - Likewise, the decision in Salauddin
Abdulsamad Shaikh case and subsequent decisions which lay down
such restrictive conditions, or terms limiting the grant of anticipatory
bail, to a period of time are overruled - Guiding principles
enumerated for Courts to follow while dealing with applications
u/s.438 - Criminal Procedure Code (Amendment) Act, 2005 - Code
of Criminal Procedure Amendment Act, 2018 - Penal Code, 1860 -
 [2020] 2 S.C.R. 1
1
A
B
C
D
E
F
G
H
2
SUPREME COURT REPORTS
[2020] 2 S.C.R.
ss.376(3), 376AB, 376DA, 376DB - Constitution of India - Art.21
- Evidence Act, 1872 - s.27 - Interpretation of Statutes.
Answering the referred questions, the Court
HELD: 1.1 PER M. R. SHAH, J.
The expression "anticipatory bail" has not been defined in
the Code. As observed by Supreme Court in the case of Balchand
Jain, "anticipatory bail" means "bail in anticipation of arrest".
As held, the expression "anticipatory bail" is a misnomer
inasmuch as it is not as if bail is presently granted by the Court 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 Cr.P.C. 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.
A person in whose favour a pre-arrest bail order is made under
Section 438 of the Cr.P.C. 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 Cr.P.C. 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 Cr.P.C. 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 Cr.P.C. 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 Cr.P.C. [Para 7.1][33EH, 34A-D]
A
B
C
D
E
F
G
H
3
1.2 Considering the decision of the Constitution Bench of
Supreme Court in the case of Gurbaksh Singh Sibbia and the
relevant observations, the decision of this Court in the case of
Siddharam Satlingappa Mhetre to the extent it takes the view
that the life of the order under Section 438 Cr.P.C. cannot be
curtailed is not a correct law in light of the observations made by
the Constitution Bench in paragraphs 42 and 43 in Gurbaksh Singh
Sibbia. The decision of Supreme Court in the case of Salauddin
Abdulsamad Shaikh which takes an extreme view that the order
of "anticipatory bail" has to be necessarily limited in time frame
is also not a good law and is against and just contrary to the
decision in the case of Gurbaksh Singh Sibbia, which is a
Constitution Bench judgment. [Para 7.4]
1.3 Thus, considering the observations made by the
Constitution Bench of Supreme Court in the case of Gurbaksh
Singh Sibbia, the court may, if there are reasons for doing so,
limit the operation of the order to a short period only after filing
of an FIR in respect of the matter covered by order and the
applicant may in such case be directed to obtain an order of bail
under Sections 437 or 439 of the Code within a reasonable short
period after the filing of the FIR. The Constitution Bench further
observed that the same need not be followed as an invariable
rule. It is further observed and held that normal rule should be
not to limit the operation of the order in relation to a period of
time. The conditions can be imposed by the concerned court while
granting pre-arrest bail order8787 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. However,
the normal rule should be not to limit the order in relation to a
period of time. [Para 7.5][49D-H]
Shri Gurbaksh Singh Sibbia and others v. State of
Punjab (1980) 2 SCC 565 : [1980] 3 SCR 383 - relied
on.
SUSHILA AGGARWAL v. STATE (NCT OF DELHI)
A
B
C
D
E
F
G
H
4
SUPREME COURT REPORTS
[2020] 2 S.C.R.
Siddharam Satlingappa Mhetre v. State of Maharashtra
(2011) 1 SCC 694 : [2010] 15 SCR 201 - held not
correct law.
Salauddin Abdulsamad Shaikh v. State of Maharashtra
(1996) 1 SCC 667 : [1995] 6 Suppl. SCR 556 - held
not good law.
Bhadresh Bipinbhai Sheth v. State of Gujarat (2016) 1
SCC 152 : [2015] 10 SCR 398; K.L. Verma v. State and
another (1998) 9 SCC 348; Sunita Devi v. State of Bihar
(2005) 1 SCC 608 : [2004] 6 Suppl. SCR 707; Nirmal
Jeet Kaur v. State of M.P. (2004) 7 SCC 558 : [2004] 3
Suppl. SCR 1006; HDFC Bank Limited v. J.J. Mannan
(2010) 1 SCC 679 : [2009] 16 SCR 590; Satpal Singh
v. State of Punjab (2018) 4 SCC 303 : [2018] 3 SCR
739; Balchand Jain v. State of M.P. (1976) 4 SCC 572
: [1977] 2 SCR 52; Joginder Kumar v. State of U.P.
(1994) 4 SCC 260; Lalitha Kumari v. State of U.P.
(2014) 2 SCC 1 : [2013] 14 SCR 713; Arnesh Kumar
v. State of Bihar (2014) 8 SCC 273 : [2014] 8 SCR
128; M.C. Abraham v. State of Maharashtra (2003) 2
SCC 649 : [2002] 5 Suppl. SCR 677 ; Uday Mohanlal
Acharya v. State of Maharashtra (2001) 5 SCC 453 :
[2001] 2 SCR 878 - referred to.
41st Report of the Law Commission of India - referred to.
PER S. RAVINDRA BHAT, J. [CONCURRING]
2.1 Bail ipso facto has not been defined under the Code. It
is now widely recognized as a norm which includes the governing
principles enabling the setting of accused person on liberty
subject to safeguards, required to make sure that he is present
whenever needed. The justification for bail (to one accused of
commission or committing a crime is that it preserves a person
who is under cloud of having transgressed law but not convicted
for it, from the rigors of a detention. Section 438 of the Cr.PC
provides for the issuance of directions for the grant of bail to a
person apprehending arrest. The Cr.PC of 1973 replaced the old
code of 1898. The old code did not provide for any corresponding
provision to Section 438 of the code of 1973. Under the old code,
A
B
C
D
E
F
G
H
5
there was a sharp difference of opinion amongst the various High
Courts on the question as to whether courts had the inherent
power to pass an order of bail in anticipation of arrest. The
predominant position was that courts did not have such a power.
Subsequently, the need for various amendments to make the code
more comprehensive resulted in the enactment of the Code of
Criminal Procedure in 1973. Section 438 does not expressly use
the term "anticipatory bail"; its language instead empowers the
concerned to court to issue directions for grant of bail.
[Paras 39, 40][94H], [95A-D]
2.2 The term 'anticipatory bail' finds no place in the Cr.PC
itself but was used by the Law Commission of India in its 41st
Report. The term was used to convey that it was an application
for bail in anticipation of arrest, i.e., before the arrest itself is
made. The pre-dominant thinking of the larger, Constitution
Bench, in Sibbia, was that given the premium and the value that
the Constitution and Article 21 placed on liberty- and given that
a tendency was noticed, of harassment - at times by unwarranted
arrests, the provision for anticipatory bail was made. It was not
hedged with any conditions or limitations- either as to its duration,
or as to the kind of alleged offences that an applicant was accused
of having committed. The courts had the discretion to impose
such limitations (like co-operation with investigation, not
tampering with evidence, not leaving the country etc) as were
reasonable and necessary in the peculiar circumstances of a given
case. However, there was no invariable or inflexible rule that the
applicant had to make out a special case, or that the relief was to
be of limited duration, in a point of time, or was unavailable for
any particular class of offences. [Paras 42,46][95G, 99G-H,
100A-C]
2.3 Some judgments, notably Ram Kishna Balothia & Anr.
and Jai Prakash Singh v State of Bihar held that the provision for
anticipatory bail is not an essential ingredient of Article 21,
particularly in the context of imposition of limitations on the
discretion of the courts while granting anticipatory bail, either
limiting the relief in point of time, or some other restriction in
respect of the nature of the offence, or the happening of an event.
Such observations are contrary to the broad terms of the power
SUSHILA AGGARWAL v. STATE (NCT OF DELHI)
A
B
C
D
E
F
G
H
6
SUPREME COURT REPORTS
[2020] 2 S.C.R.
declared by the Constitution Bench of this court in Sibbia. The
larger bench had specifically held that an "over-generous infusion
of constraints and conditions which are not to be found in Section
438 can make its provisions constitutionally vulnerable since the
right to personal freedom cannot be made to depend on compliance
with unreasonable restrictions." The reason for enactment of
Section 438 in the Code was Parliamentary acceptance of the
crucial underpinning of personal liberty in a free and democratic
country. Parliament wished to foster respect for personal liberty
and accord primacy to a fundamental tenet of criminal
jurisprudence, that everyone is presumed to be innocent till he
or she is found guilty. Life and liberty are the cherished attributes
of every individual. The urge for freedom is natural to each human
being. Section 438 is a procedural provision concerned with the
personal liberty of each individual, who is entitled to the benefit
of the presumption of innocence. As 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, especially when not imposed by the legislature. The
interpretation of Section 438- that it does not encapsulate Article
21, is erroneous. This court is of the opinion that the issue is not
whether Section 438 is an intrinsic element of Article 21: it is
rather whether that provision is part of fair procedure. As to that,
there can be no doubt that the provision for anticipatory bail is
pro-liberty and enables one anticipating arrest, a facility of
approaching the court for a direction that he or she not be
arrested; it was specifically enacted as a measure of protection
against arbitrary arrests and humiliation by the police, which
Parliament itself recognized as a widespread malaise on the part
of the police. [Paras 47, 49 and 50][100C-F, 101B-D, E-G]
2.4 A fuller consideration of the various decisions cited
earlier, especially those which emphasized the need to limit the
life of an order of anticipatory bail, are premised on the
understanding that the grant of an unconditional order of bail would
thwart investigation. In the first place, this premise is unfounded,
given that Sibbia stated that such an order would be "contrary to
the terms" of Section 438; and furthermore, that conditions
mentioned in Section 438(2) could be imposed while granting
A
B
C
D
E
F
G
H
7
anticipatory bail. The requirement of imposing conditions is not
compulsive (noticing the use of the term "may" which precedes
the requirement of imposing conditions). Nevertheless, an
unconditional order, in the sense of an order not even imposing
conditions mentioned in Section 438(2) can impede or hamper
investigation, Sibbia held that the conditions mentioned in that
provision should be imposed. This requirement is more a matter
of prudence, while granting relief. The Law Commission's 41st
and 48th report focused on the need to introduce the provision
(for anticipatory bail) as a preventive, or curative measure, to
deal with a particular problem, i.e. unwarranted arrests. Sibbia
noticed this fact, and also that significantly, Section 438 is not
hedged with any obligation on the court's power, to impose
conditions. That situation remains unchanged: the provision
remains unaltered-at least substantially (barring an amendment
in 2005 which obliged the issuance of notice to the public
prosecutor before issuing any order for anticipatory bail). The
203rd Report of the Law Commission, which reviewed the entire
law on the subject and noticed later decisions, such as Salauddin,
Adari Narain Das, etc, recommended no change in law on this
aspect relating to conditions. In this background, it is important
to notice that the only bar, or restriction, imposed by Parliament
upon the exercise of the power (to grant anticipatory bail) is by
way of a positive restriction, i.e. in the case where accused are
alleged to have committed offences punishable under Section
376(3) or Section 376AB or Section 376DA or Section 376DB of
the Indian Penal Code. In other words, Parliament has now denied
jurisdiction of the courts (i.e. Court of Session and High Courts)
from granting anticipatory bail to those accused of such offences.
The amendment (Code of Criminal Procedure Amendment Act,
2018) introduced Section 438(4). Clearly, therefore, where the
Parliament wished to exclude or restrict the power of courts,
under Seciton 438 of the Code, it did so in categorical terms.
Parliament's omission to restrict the right of citizens, accused of
other offences from the right to seek anticipatory bail, necessarily
leads one to assume that neither a blanket restriction can be
read into by this court, nor can inflexible guidelines in the exercise
of discretion, be insisted upon- that would amount to judicial
legislation. [Paras 54-56][105B-D, 106A-D, 107-A-B-C]
SUSHILA AGGARWAL v. STATE (NCT OF DELHI)
A
B
C
D
E
F
G
H
8
SUPREME COURT REPORTS
[2020] 2 S.C.R.
2.5 The imposition of conditions under Section 438(2) with
reference to Section 437(3) is enough safeguard for the
authorities - including the police and other investigating agencies,
who have to investigate into crimes and the possible complicity
of the applicants who seek such relief. Taking each concern, i.e.
the addition of more serious offences; presence of a large number
of individuals or complainants; possibility of non-cooperation -
non-cooperation in the investigation or the requirement of the
accused's statement to aid the recovery of articles and
incriminating articles in the course of statements made during
investigations - it is noticeable, significantly, that each of these
is contemplated as a condition and is invariably included in every
order granting anticipatory bail. In the event of violation or
alleged violation of these, the concerned authority is not
remediless; recourse can be had to Section 438(2) read with
Section 437(3). Any violation of these terms would attract a
direction to arrest him. This power or direction to arrest is found
in Section 437(5). However, that provision has no textual
application to regular bail granted by the Court of Sessions or
High Courts under Section 439 or directions not to arrest, i.e.
order of anticipatory bail under Section 438. Secondly, Section
439(2) which is cast in wide terms, adequately covers situations
when an accused does not cooperate during the investigation or
threatens to, or intimidates witness[es] or tries to tamper with
other evidence. There is nothing in the provisions of Section
438 which suggests that Parliament intended to restrict its
operation, either as regards the time period, or in terms of the
nature of the offences in respect of which, an applicant had to be
denied bail, or which special considerations were to apply.
[Paras 61, 62][109-D-H, 110A]
2.6 For the above reasons, the answer to the first question
in the reference made to this bench is that there is no offence,
per se, which stands excluded from the purview of Section 438 -
except the offences mentioned in Section 438 (4). In other words,
anticipatory bail can be granted, having regard to all the
circumstances, in respect of all offences. At the same time, if
there are indications in any special law or statute, which exclude
relief under Section 438 (1) they would have to be duly considered.
A
B
C
D
E
F
G
H
9
There can be no inflexible time frame for which an order of
anticipatory bail can continue. [Para 68][115G-H, 116A, B-C]
Re Question No. 2: Whether the life of an anticipatory bail
should end at the time and stage when the accused is summoned by
the court.
2.7 The observations about the width and amplitude of the
power under Section 438, made in answer to the first question,
are equally relevant here too. In the present context, further,
the judgment and observations of this Court in its interpretation
of Section 167(2) are telling. It was held in Gursharan Singh, the
release by grant of bail of an accused under Section 167(2)
amounts to "deemed bail". This is borne out by Section 167(2)
which states that anyone released on bail under its provision
"shall be deemed to be so released under the provisions of Chapter
XXXIII for the purposes of that Chapter." The judgment in Aslam
Babalal Desai clarified that when an accused is released by
operation of Section 167(2) and subsequently, a charge-sheet is
filed, there is no question of the cancellation of his bail. In these
circumstances, the mere fact that an accused is given relief under
Section 438 at one stage, per se does not mean that upon the
filing of a charge-sheet, he is necessarily to surrender or/and
apply for regular bail. The analogy to 'deemed bail' under Section
167(2) with anticipatory bail leads this court to conclude that the
mere subsequent event of the filing of a charge-sheet cannot
compel the accused to surrender and seek regular bail. As a
matter of fact, interestingly, if indeed, a charge-sheet is filed where
the accused is on anticipatory bail, the normal implication would
be that there was no occasion for the investigating agency or the
police to require his custody, because there would have been
nothing in his behavior requiring such a step. In other words, an
accused, who is granted anticipatory bail would continue to be at
liberty when the charge sheet is filed, the natural implication is
that there is no occasion for a direction by the Court that he be
arrested and further that he had cooperated with the investigation.
At the same time, however, at any time during the investigation
were any occasion to arise calling for intervention of the court
for infraction of any of the conditions imposed under Section 437(3)
SUSHILA AGGARWAL v. STATE (NCT OF DELHI)
A
B
C
D
E
F
G
H
10
SUPREME COURT REPORTS
[2020] 2 S.C.R.
read with Section 438(2) or the violation of any other condition
imposed in the given facts of a case, recourse can always be had
under Section 439(2). [Para 70][117D-H, 118A-C]
2.8 Section 438 (3) states that when a person is granted
anticipatory bail, is later arrested without warrant by an officer in
charge of a police station "on such accusation", and is willing to
give bail, "he shall be released on bail; and if a Magistrate taking
cognizance of such offence decides that a warrant should issue in
the first instance against that person he shall issue a bailable warrant
in conformity with the direction of the Court under sub-section (1)".
The order granting anticipatory bail, is also- as noticed earlier,
and in several previous decisions, a "direction" under this Section
438 "that in the event of such arrest" the applicant be released on
bail. Therefore, when an accused in fact is granted bail, and the
conditions outlined in Section 438 (2) are included as part of the
direction "to release" him in the event of arrest, all the necessary
conditions which he is obliged to follow exist. Section 438 (3)
outlines the steps to be taken, in the event of arrest of one who
has been granted relief under Section 438 (1). In the event of noncompliance with any or all conditions, imposed by the court, the
concerned agency or the police, a direction can be sought from
the court under Section 439 (2). [Para 71][118C-F]
2.9 Unless circumstances to the contrary: in the form of
behaviour of the accused suggestive of his fleeing from justice,
or evading the authority or jurisdiction of the court, or his
intimidating witnesses, or trying to intimidate them, or violate
any condition imposed while granting anticipatory bail, the law
does not require the person to surrender to the court upon
summons for trial being served on him. Subject to compliance
with the conditions imposed, the anticipatory bail given to a
person, can continue till end of the trial. [Para 76][123F-G, 124A]
2.10 Answers to the reference:
(1) Question No.1- The protection granted under Section
438 Cr.PC should not always or ordinarily be limited to a fixed
period; it should inure in favour of the accused without any
restriction as to time. Usual or standard conditions under Section
A
B
C
D
E
F
G
H
11
437 (3) read with Section 438 (2) should be imposed; if there are
peculiar features in regard to any crime or offence (such as
seriousness or gravity etc.), it is open to the court to impose any
appropriate condition (including fixed nature of relief, or its being
tied to an event or time bound) etc.
(2) Question No. 2- 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. 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. [Para 77][124B-C, D-E]
2.11 In conclusion, it would be useful to remind oneself
that the rights which the citizens cherish deeply, are fundamentalit is not the restrictions that are fundamental. Joseph Story, the
great jurist and US Supreme Court judge, remarked that "personal
security and private property rest entirely upon the wisdom, the
stability, and the integrity of the courts of justice." The history of
our republic - and indeed, the freedom movement has shown
how the likelihood of arbitrary arrest and indefinite detention
and the lack of safeguards played an important role in rallying
the people to demand independence.
Witness the Rowlatt Act, the nationwide protests against
it, the Jallianwalla Bagh massacre and several other incidents,
where the general public were exercising their right to protest
but were brutally suppressed and eventually jailed for long. The
specter of arbitrary and heavy-handed arrests: too often, to harass
and humiliate citizens, and oftentimes, at the interest of powerful
individuals (and not to further any meaningful investigation into
offences) led to the enactment of Section 438. Despite several
Law commission reports and recommendations of several
committees and commissions, arbitrary and groundless arrests
continue as a pervasive phenomenon. Parliament has not thought
it appropriate to curtail the power or discretion of the courts, in
granting pre-arrest or anticipatory bail, especially regarding the
duration, or till charge sheet is filed, or in serious crimes.
Therefore, it would not be in the larger interests of society if the
court, by judicial interpretation, limits the exercise of that power:
SUSHILA AGGARWAL v. STATE (NCT OF DELHI)
A
B
C
D
E
F
G
H
12
SUPREME COURT REPORTS
[2020] 2 S.C.R.
the danger of such an exercise would be that in fractions, little by
little, the discretion, advisedly kept wide, would shrink to a very
narrow and unrecognizably tiny portion, thus frustrating the
objective behind the provision, which has stood the test of time,
these 46 years. [Paras 79, 80][127A-F]
Shri Gurbaksh Singh Sibbia and others v. State of Punjab
(1980) 2 SCC 565 : [1980] 3 SCR 383; Chandra Mohan v.
State of Uttar Pradesh & Ors [1967] 1 SCR 77; Reserve Bank
of India v. Peerless General Finance and Investment Co. Ltd.
& Ors. (1987) 1 SCC 424 : [1987] 2 SCR 1; Directorate of
Enforcement v Deepak Mahajan (1994) 3 SCC 440 : [1994]
1 SCR 445; State of Haryana & Ors. v. Sampuran Singh &
Ors. (1975) 2 SCC 810 : [1976] 1 SCR 626; Dolat Ram v
State of Haryana [1995] 1 SCC 349 : [1994] 6 Suppl. SCR
69 - relied on.
Salauddin Abdulsamad Shaikh v. State of Maharashtra (1996)
1 SCC 667 : [1995] 6 Suppl. SCR 556; K.L. Verma v. State &
Anr (1998) 9 SCC 348; Sunita Devi v. State of Bihar & Anr
(2005) 1 SCC 608 : [2004] 6 Suppl. SCR 707; Adri Dharan
Das v. State of West Bengal (2005) 4 SCC 303 : [2005] 2
SCR 188; Nirmal Jeet Kaur v. State of M.P. & Anr (2004) 7
SCC 558 : [2004] 3 Suppl. SCR 1006; HDFC Bank Limited
v. J.J. Mannan (2010) 1 SCC 679 : [2009] 16 SCR 590;
Satpal Singh v. the State of Punjab (2018) SCC Online (SC
415); Naresh Kumar Yadav v Ravindra Kumar (2008) 1 SCC
632 : [2007] 11 SCR 615; Siddharam Satlingappa Mhetre v.
State of Maharashtra & Ors (2011) 1 SCC 694 : [2010] 15
SCR 201; Bhadresh Bipinbhai Sheth v. State of Gujarat &
Anr (2016) 1 SCC 152 : [2015] 10 SCR 398 - overruled.
Dataram Singh v. State of U.P (2018) 3 SCC 22; Gurcharan
Singh v State (Delhi Admn) (1978) 1 SCC 118 : [1978] 2
SCR 358; Aslam Babalal Desai v State of Maharastra (1992)
4 SCC 272 : [1992] 1 Suppl. SCR 545; Joginder Kumar v.
State of U.P. (1994) 4 SCC 260; Lalitha Kumari v. State of
U.P (2014) 2 SCC 1 : [2013] 14 SCR 713; Arnesh Kumar v.
State of Bihar (2014) 8 SCC 273 : [2014] 8 SCR 128; M.C.
Abraham v. State of Maharastra (2003) 2 SCC 649 : [2002]
A
B
C
D
E
F
G
H
13
5 Suppl. SCR 677; Pradeep Ram v. State of Jharkhand (2019)
SCC Online (SC) 825; Mithabhai Pashabhai Patel v. State
of Gujarat (2009) 6 SCC 332 : [2009] 7 SCR 1126; State of
M.P. & Anr. v Ram Kishna Balothia & Anr. (1995) Supp (3)
SCC 419 : [1995] 2 Suppl. SCR 590; Savitri Agarwal v. State
of Maharashtra & Anr (2009) 8 SCC 325 : [2009] 10 SCR
978; State of A.P. v. Bimal Krishna Kundu (1997) 8 SCC 104:
[1997] 4 Suppl. SCR 412; Muraleedharan v. State of Kerala
(2001) 4 SCC 638 : [2001] 3 SCR 57; Jai Prakash Singh v
State of Bihar (2012) 4 SCC 379 : [2012] 5 SCR 1; Gudikanti
Narasimhulu v. Public Prosecutor (1978) 1 SCC 240 : [1978]
2 SCR 371; P. Chidambaram v. Directorate of Enforcement
(2019) 9 SCC 24; State of U.P. v Deoman Upadhyaya [1961]
1 SCR 14; Vallabhdas Liladhar v Asst. Collector of Customs
[1965] 3 SCR 854; Hazari Lal Das v State of West Bengal &
Anr (2009) 10 SCC 652 : [2009] 14 SCR 195; Sudhir v.
Maharastra 2016 (1) SCC 146 : [2015] 12 SCR 387; Arvind
Tiwary v. State of Bihar (2018) 8 SCC 475; Mahant Chand
Yogi v. State of Haryana (2003) 1 SCC 236; Padmakar
Tukaam Bhavnagare v. State of Maharastra (2012) 13 SCC
720; X v. State of Telangana, (2018) 16 SCC 511 : [2018] 4
SCR 466; Prakash Kadam & Etc. Etc. v Ramprasad
Vishwanath Gupta & Anr (2011) 6 SCC 189 : [2011] 6 SCR
800; State through C.B.I. v. Amarmani Tripathi (2005) 8 SCC
21 - referred to.
Report of the Committee on Reforms of the Criminal Justice
System by Dr. Justice V.S. Malimath; Reports of the Law
Commission of India- 41st, 48th, 154th, 177th, 203rd and 268th
- referred to.
Halsbury's Laws of England(Halsbury's Laws of England 4th
Edn., Vol. 11, para 166); Codex Justinianus (or 'Code Jus')
in Book 9 titled Title 3(2); Wharton's Law Lexicon - referred
to.
PER ARUN MISHRA, INDIRA BANERJEE AND VINEET
SARAN, JJ. [CONCURRING]
3. The conclusions in Shri Gurbaksh Singh Sibbia and others
v. State of Punjab 1980 (2) SCC 565 needs reiteration and further
SUSHILA AGGARWAL v. STATE (NCT OF DELHI)
A
B
C
D
E
F
G
H
14
SUPREME COURT REPORTS
[2020] 2 S.C.R.
that 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, it is
agreed that Salauddin 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 to that
extent and other judgments which have followed it are accordingly
overruled.[128A-C]
Shri Gurbaksh Singh Sibbia and others v. State of
Punjab (1980) 2 SCC 565 : [1980] 3 SCR 383 - relied
on.
Salauddin Abdulsamad Shaikh v. State of Maharashtra
(1996) 1 SCC 667 : [1995] 6 Suppl. SCR 556;
Siddharam Satlingappa Mhetre v. State of Maharashtra
(2011) 1 SCC 694 : [2010] 15 SCR 201 - overruled.
PER ARUN MISHRA, INDIRA BANERJEE, VINEET
SARAN, M.R. SHAH, S. RAVINDRA BHAT, JJ. [PER
CURIAM]
FINAL CONCLUSIONS:
4. Answers to the reference:
(1) Question No.1- 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.
(2) Second question- 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.
A
B
C
D
E
F
G
H
15
The following need to be kept in mind by courts, dealing
with applications under Section 438, Cr. PC:
(1) Consistent with the judgment in Shri Gurbaksh Singh
Sibbia and others v. State of Punjab, 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 Cr. PC, 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), Cr. PC [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
SUSHILA AGGARWAL v. STATE (NCT OF DELHI)
A
B
C
D
E
F
G
H
16
SUPREME COURT REPORTS
[2020] 2 S.C.R.
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 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."
A
B
C
D
E
F
G
H
17
(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. This does not amount to "cancellation" in terms
of Section 439 (2), Cr. PC.
(12) The observations in Siddharam Satlingappa Mhetre v.
State of Maharashtra & Ors (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 and
subsequent decisions (including K.L. Verma v. State & Anr; Sunita
Devi v. State of Bihar & Anr; Adri Dharan Das v. State of West
Bengal; Nirmal Jeet Kaur v. State of M.P. & Anr; HDFC Bank
Limited v. J.J. Mannan; Satpal Singh v. the State of Punjab and
Naresh Kumar Yadav v Ravindra Kumar) which lay down such
restrictive conditions, or terms limiting the grant of anticipatory
bail, to a period of time are hereby overruled. [Para 1][128-E-H;
129-A-H; 130-A-H; 131-A-D]
Siddharam Satlingappa Mhetre v. State of Maharashtra
(2011) 1 SCC 694 : [2010] 15 SCR 201; Salauddin
Abdulsamad Shaikh v. State of Maharashtra (1996) 1
SCC 667 : [1995] 6 Suppl. SCR 556; K.L. Verma v.
State and another (1998) 9 SCC 348; Sunita Devi v.
State of Bihar (2005) 1 SCC 608 : [2004] 6 Suppl. SCR
707; Adri Dharan Das v. State of West Bengal (2005)
(4) SCC 303 : [2005] 2 SCR 188; Nirmal Jeet Kaur v.
SUSHILA AGGARWAL v. STATE (NCT OF DELHI)
A
B
C
D
E
F
G
H
18
SUPREME COURT REPORTS
[2020] 2 S.C.R.
State of M.P. (2004) 7 SCC 558 : [2004] 3 Suppl. SCR
1006; HDFC Bank Limited v. J.J. Mannan (2010) 1 SCC
679 : [2009] 16 SCR 590; Satpal Singh v. State of
Punjab (2018) 4 SCC 303 : [2018] 3 SCR 739; Naresh
Kumar Yadav v Ravindra Kumar (2008) 1 SCC 632 :
[2007] 11 SCR 615 - overruled.
Shri Gurbaksh Singh Sibbia and others v. State of
Punjab (1980) 2 SCC 565 : [1980] 3 SCR 383 - relied
on.
Prakash Kadam & Etc. Etc. vs Ramprasad Vishwanath
Gupta & Anr (2011) 6 SCC 189 : [2011] 6 SCR 800;
Jai Prakash Singh v State of Bihar (2012) 4 SCC 325 :
[2012] 5 SCR 1; State through C.B.I. v. Amarmani
Tripathi (2005) 8 SCC 21 - referred to.
Case Law Reference
IN THE JUDGMENT OF M.R. SHAH, J.:
[1980] 3 SCR 383
relied on
Para 1
[2010] 15 SCR 201
held not correct law
Para 1
[2015] 10 SCR 398
referred to
Para 1
[1995] 6 Suppl. SCR 556
held not good law
Para 1
(1998) 9 SCC 348
referred to
Para 1
[2004] 6 Suppl. SCR 707
referred to
Para 1
[2004] 3 Suppl. SCR 1006 referred to
Para 1
[2009] 16 SCR 590
referred to
Para 1
[2018] 3 SCR 739
referred to
Para 1
[1977] 2 SCR 52
referred to
Para 2
(1994) 4 SCC 260
referred to
Para 3.1
[2013] 14 SCR 713
referred to
Para 3.1
[2014] 8 SCR 128
referred to
Para 3.1
[2002] 5 Suppl.