Recent Judgements on Anticipatory Bail

Section 438 of the CrPC talks about the provision for anticipatory bail in India. A person who believes that he may be arrested can apply for anticipatory bail under this provision. A number of Supreme and High Court judgments have been passed recently clarifying the position of the courts on various issues regarding anticipatory bail. 

  1. No Fixed Time Limit for Anticipatory Bail 

The Supreme Court in the case of Sushila Aggarwal vs State (NCT of Delhi) 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 held that 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 addressed two important questions in this judgement the first being 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 surrender before the Trial Court and seek regular bail? On this issue the court held that the protection granted to a person under Section 438 CrPC should not invariably be limited to a fixed periodThe 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. the second question before the court was whether the life of an anticipatory bail should end at the time and stage when the accused is summoned by the court? On this issue the court said 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.

  1. Successive Anticipatory Bail Applications not to be entertained 

In the case of G.R Ananda Babu vs State of Tamil Nadu the Supreme Court, in an order observed that successive anticipatory bail applications ought not to be entertained. In this case, the first and second anticipatory bail applications moved by the accused were dismissed by the High Court. The third bail application was allowed observing that six months have passed from the date of dismissal of earlier anticipatory bail application. The Court disagreed with the judgement passed by the High Court and in this appeal held that "As a matter of fact, successive anticipatory bail applications ought not to be entertained and more so, when the case diary and the status report clearly indicated that the accused (Respondent No. 2) is absconding and not cooperating with the investigation. The specious reason of change in circumstances cannot be invoked for successive anticipatory bail applications, once it is rejected by a speaking order and that too by the same judge."

  1. Anticipatory Bail sought in cancellation of regular bail cannot be granted 

The Supreme Court in the case of Manish Jain vs Haryana State Pollution Control Board has held that a plea for anticipatory bail was not maintainable in circumstances where anticipatory bail was sought in cancellation of regular bail since the person released on regular bail was already in constructive custody of the law. The petitioner was initially granted regular bail under Section 15 of the Environment Protection Act, 1986 which was later cancelled due to the non-appearance of the petitioner due to which he was arrested again. Upon subsequent bail of the petitioner, he sought anticipatory bail from Punjab and Haryana High Court which rejected the plea which led to the SLP in the Supreme Court seeking the same. The Court rejected the plea on the grounds that "A person released on bail is already in the constructive custody of the law. If the law requires him to come back to custody for specified reasons, we are afraid that an application for anticipatory bail apprehending arrest will not lie. There cannot be an apprehension of arrest by a person already in the constructive custody of the law."

  1. Anticipatory Bail can be granted even if Non Bailable Warrant has been issued 

In the case of Danish Khan vs State the Supreme Court has answered the question of whether anticipatory bail ban be granted if a non bailable warrant had been issued ? the court heavily relied on the judgment of the division bench of Delhi High Court in PV Narsimha Rao vs State (CBI) 1996 wherein the court held that "The filing of a charge-sheet by the police and issuing of a warrant by the Magistrate do not put an end to the power to grant bail under S.438(1) CrPC and on the other hand the High Court or the Court of Session has power to grant anticipatory bail under S.438(1) to a person after the criminal court has taken cognizance of the case and has issued process viz., the warrant of arrest of that accused person." Therefore, in view of the aforesaid judgment the court while allowing the anticipatory bail to the accused held that "Accordingly, the fact that NBWs have already been obtained against the applicant would not divest this court of the power under section 438 CrPC to grant anticipatory bail to the applicant”. 

  1. A long delay in filing of FIR a valid reason for granting Anticipatory Bail

In the case of Sumedh Singh Saini vs The State of Punjab the Supreme Court while setting aside the order of the Punjab and Haryana High Court in which the High Court had dismissed the anticipatory bail application of Mr. Saini, granted anticipatory bail and held that “Considering the fact that impugned FIR has been lodged by the brother of the deceased after a period of almost 29 years from the date of incident and after a period of 9 years from the date of decision of this court in case of Davinder Pal Singh Bhullar, many a time, delay may not be fatal to the criminal proceedings. However, it always depends upon the facts and circumstances of each case. However, at the same time, a long delay like 29 years as in the present case can certainly be valid consideration for grant of anticipatory bail,”. The Court noted the unusual delay in the filing of the FIR as a valid ground for allowing anticipatory bail. One of the main reasons why the provision of anticipatory bail was introduced was to stop people from false prosecution and putting people in jail under false charges and therefore such an unusual delay in the filing of the FIR may also be a similar case.

- Kaushlendra Singh Palawat 

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