SUSHILA AGGARWAL AND OTHERS versus STATE (NCT OF DELHI) AND ANOTHER

Citation: [2020] 2 S.C.R. 1 · Decided: 29-01-2020 · Supreme Court of India · Bench: ARUN MISHRA · Disposal: Directions issued

Cited by 17 judgment(s) · cites 27 · see the full citation network in Lexace

Judgment (excerpt)

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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
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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 i

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