Anticipatory Bail Can’t Have A Time Limit, Rules Supreme Court

The Supreme Court today settled the difference of opinion stemming from its two prior verdicts by ruling that anticipatory bail can’t be restricted by a time limit unless a competent court orders such a condition in a specific case.

A five-judge constitution bench said the provisions of the Code of Criminal Procedure that govern bail and anticipatory bail differ on the aspect of when such orders can be passed. While a regular bail can be granted after a formal arrest, anticipatory bail can be ordered prior to the arrest. A bare reading of relevant Section 438 of the CrPC that deals with these provisions nowhere talks about a fixed time limit for anticipatory bail, the court said.

The bench—comprising Justice Arun Mishra, Justice Indira Banerjee, Justice Vineet Saran, Justice MR Shah and Justice S Ravindra Bhat—was set up to settle the issue because of the two conflicting judgments of the top court in two cases: its 1980 ruling in Gurbaksh Singh Sibbia and others v. State of Punjab; and the 1996 verdict in Salauddin Abdulsamad Shaikh v. State of Maharashtra.

• In the Gurbaksh Singh Sibbia case, the top court held that Parliament hasn’t added any specific conditions or restrictions in Section 438 of the CrPC but left it to the court to pass restrictions on a case-to-case basis.
• In matter of Salauddin Abdulsamad Shaikh, the court, however, held that orders of anticipatory bail need to necessarily have a time limit.

The five-judge constitution bench held that there can’t be any time-limit restriction. But it clarified the questions that the competent courts deciding on anticipatory bail must keep in mind:

• The application of anticipatory bail must include bare essential facts related to the offence for which he (applicant) reasonably fears arrest as well as his side of the story. Registration of a first information report by the police isn’t a necessary pre-condition to apply for anticipatory bail.
• Courts dealing with anticipatory bail cases should hear the public prosecutor and obtain facts even before granting a limited interim anticipatory bail.
• The courts must also consider the nature of the offence and the likelihood of that individual’s chances of influencing the investigation or tampering with evidence or fleeing the country. The courts can pass restrictive conditions in the anticipatory bail orders on a case-to-case basis.
• The anticipatory bail orders can continue till the end of the trial and the court should keep in mind the conduct of the accused while passing the orders.
• Anticipatory bail only gives protection from arrest to a person in relation to offence he apprehends arrest in. There cannot be a blanket anticipatory bail that allows an individual to commit other offences.
• The order of anticipatory bail only grants protection from arrest but does not in any other way limit the rights of the police to conduct its investigation.
• The police will be free to move courts seeking permission for arrest of an accused who has been granted anticipatory bail by a court.

The constitution bench overruled cases—including Siddharam Satlingappa Mhetre v. State of Maharashtra & Others—where the court ruled that absolutely no restrictive conditions can be imposed in an anticipatory bail order. It also overturned cases where time limits were imposed incorrectly.

The judgment was authored by Justice Bhat and Justice Shah and the other judges on the bench concurred with their view.