India: The Meandering Law On The Duration Of An Anticipatory Bail Order

Last Updated: 3 September 2018
Article by Bharat Chugh and Sujoy Sur

"There is no terror in the bang, only in the anticipation of it"1

"One ought not to make a bugbear of the power to grant anticipatory bail."2

I. Introduction

Whether anticipatory bail should be granted only for a limited period of time, or once granted, should it continue till the end of trial? This is the precise question which has been referred to a Constitution Bench by a 3 Judge bench of the Supreme Court recently in Sushila Aggarwal & Ors. V. State (NCT of Delhi) & Anr3 . But before an analysis of this decision, let us briefly recapitulate the genesis of the provision of anticipatory bail, which, as the name suggests, provides for the preventive relief of bail in anticipation of arrest. This provision was inserted in the Code of Criminal Procedure, 1973 ("CrPC") in light of the widespread abuse of power of arrest by the police, for ulterior motives. Arrest has great repercussions for the person arrested, with the bang (arrest!) being as terrifying (if not more) as the anticipation of it. Arrest in a criminal case carries with it - a stigma which one carries for the rest of one's life, which is why our criminal procedure provides for bail in anticipation of arrest, subject, of course, to compliance with certain conditions. The standard conditions are that the person availing the anticipatory bail4:

(i) shall make herself available for interrogation by the police;

(ii) shall not influence any other person in a manner which dissuades the other person from stating facts to the police or the Court;

(iii) shall not leave India without the Court's permission; and

(iv) shall abide any other condition as stipulated under Section 437(3) of CrPC, as directed by the Court.

CrPC nowhere suggests that anticipatory bail should be granted only for a limited period of time, but some Courts have meandered with the law on this point by giving contradictory interpretations and have repeatedly gone astray. The judgment in Sushila Aggarwal is one such example where the Supreme Court has brought back to the fore, the issue as to– 'Whether anticipatory bail should be for a limited period of time only, on the expiry of which the accused be made to surrender and apply for regular bail?'

In this column, the authors would try and demonstrate as to why this referral may be unwarranted and legally tenuous, and as to how anticipatory bail was never meant to provide relief only for a limited time, and how by even entertaining this controversy - we may merely be tilting at windmills. But before that, a few words on the genesis of the concept of Anticipatory Bail:

II. The genesis of Anticipatory Bail.

Section 438 was enacted on the basis of Law Commission of India's 41st Report (1969). The rationale behind the incorporation of Section 438:

"The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false causes (sic) for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. In recent times, with the accentuation of political rivalry, this tendency is showing signs of steady increase. Apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail."5

This was the salutary purpose sought to be achieved by the provision, and it was in this light that no fetters as to the duration of anticipatory bail were ever envisaged by the law makers.

III. The meandering law on anticipatory bail

Post its incorporation in CrPC, the development of law by the Supreme Court on this point has followed a much-winded course and may be traced in terms of three decisions: i) Gurbaksh Singh Sibbia and Ors. V. State of Punjab6; ii) Salauddin Abdulsamad Shaikh v. State of Maharashtra7; and iii) Siddharam Satlingappa Mhetre v. State Of Maharashtra And Ors8. These cases can be considered as milestones9 in the journey of development of law on anticipatory bail.

In Gurbaksh Singh Sibbia, the prevailing law of the land was laid down, which the authors also believe is the correct position of law. The Supreme Court in Sibbia held that in light of personal liberty being a fundamental right under Article 21, any provision of law (here – Section 438 of CrPC) which deals with personal liberty of an individual cannot be unduly whittled down by reading restrictions into it, especially the ones which find no mention in the statute itself.10 This 'due process' reading drew inspiration from the Maneka Gandhi case11, which upheld the primacy of individual personal liberty and mandated all laws having an interface with personal liberty to be 'just, fair and reasonable'. The Court finally held that, as a rule, anticipatory bail should not be time bound. One of the most important aspects of anticipatory bail is that no time-based limitation was ever statutorily envisaged for it as that would lead to mutation of its very basis – from being a provision ensuring personal liberty, to one granting only contingent freedom. This should have settled the debate, if ever there was any, however, the Court appears to have got misled in subsequent cases and answered the question from what can arguably be said to be a 'public order' or 'social control' perspective and not a 'liberty' or 'due process' perspective.

In the case of Salauddin, the Court went against the very grain of the ruling in Sibbia. The rather erroneous rationale of the Court in Salauddin (for making anticipatory bail time bound) was that the Court deciding an anticipatory bail application does not have the entire evidence with it, and is, therefore, incapacitated in making an informed decision on the matter. For this reason, the bench held that - anticipatory bail should be time bound, since an unfettered bail can be considered only on the completion of the investigation.12 The judgment in Salauddin falls on two counts: Firstly, it was per-incuriam Sibbia, as it took no note of the law laid down by the Constitution bench in Sibbia, which held to the contrary13 Secondly, these observations may be legally infirm as they are based on an incorrect understanding of the very scope of scrutiny permissible at the time of decision on bail, and the material considerations at that stage. The considerations before the Court at the time of grant of anticipatory bail are not conceptually different from the considerations at the time of grant of regular bail. There is no logical basis for difference in court's approach while adjudicating an anticipatory bail application, as opposed to a regular bail application. Both are decided keeping in mind only the broad probabilities and merits of the case; in other words, an extremely high level view of the facts, with the primary and preponderant considerations being: antecedents of the offender, whether she constitutes a flight-risk, or a threat to witnesses, or not; and finally, whether the case necessitates a custodial interrogation, or not. The Court in Salauddin totally disregarded the fact that even in a regular bail application, the Court seldom has evidence before itself, and much less appreciates it.

Even though much of what was said in Salauddin was right in the face of the elementary principles of criminal law, and the judgment practically amounted to re-writing of the law of anticipatory bail, Salauddin's rationale was nonetheless followed in K.L. Verma v. State and Anr.14, Sunita Devi v. State of Bihar and Anr.15, and Adri Dharan Das v. State of W.B16. All these decisions were not only constitutionally vulnerable but also passed in disregard of the judgment in Sibbia and against the bare reading of the statutory provision itself.

The Supreme Court later saved the day and corrected its course in Siddharam Satlingappa Mhetre17, wherein it comprehensively dealt with the law of anticipatory bail. In this case, the Supreme Court analyzed Section 438 with 'personal liberty' firmly (and rightly so) at the center of its approach and chose to prioritize it over anything else. While noting that Section 438 was incorporated to ensure personal liberty18, the Court observed that the decision of Sibbia was not brought to the notice of the bench in Salauddin, thus rendering it, and the decisions which follow its line of reasoning, per-incuriam19. Further, emphasizing on the absolute importance of personal liberty of a person, the Court held there are multiple alternatives which can facilitate investigation other than limiting one's personal liberty20. It noted that - directing the accused to surrender to custody after the limited period amounts to deprivation of his personal liberty, and effectively makes the 'remedy worse than the ailment'. Thus, the Court held that, in the conspicuous absence of any time constraint within Section 438, the life of an order granting anticipatory bail should not be curtailed.21. However, just when the benefits of this judgment were actually beginning to percolate to the ground level with an increasing number of Trial Court judges becoming aware of this principle and applying it, the Supreme Court in Sushila Aggarwal (2018) has raised doubts on this issue by referring the following two questions to a larger bench:

(1) Whether the protection granted to a person under Section 438 Cr.P.C should be limited to a fixed period so as to enable the person to 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.

The authors believe that this is a rather regressive move and would have grave ramifications for personal liberty of citizens.

The above reference in Sushila misreads the existing position and the very import and purpose of the law in question. Notably, the Bombay High court had, a couple of years back, tried striking a balancing act in Prashant Kishore Mehta vs. State of Maharashtra22. In this case, the High Court held that the contrasting views in Sibbia and Salauddin are reconcilable and are not in conflict with each other.23 It further observed that the Sibbia judgment laid down the general law on anticipatory bail, whereas judgments in Salauddin, K.L. Verma and Sunita Devi have been passed with respect to peculiar facts of those cases24 and that the pronouncement in Salauddin on anticipatory bail being limited in time is directory and not mandatory in nature25. This effectively makes the tenure of anticipatory bail in a given case, to be a fact-dependant exercise, which is to be determined on a case to case basis. This decision, on first blush, does strike a decent balance and provides the necessary flexibility by allowing a judge to tailor an anticipatory bail order to suit the facts and needs of a particular case. Having said that, it does provide discretion to the judge to limit the operation of an anticipatory bail order till a particular time, without providing much guidance in terms of how that discretion is to be exercised. This may lead to a slippery slope, where Courts, as a matter of principle, start making anticipatory bail orders time-bound, whereas such an exercise is to be confined only to exceptional cases. An illustration may be a case where anticipatory bail is sought at the extremely fluid pre-FIR stage - in such a case, 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 F.I.R. in respect of the matter covered by the order. After the filing of the F.I.R. as aforesaid, the Court may be in a better position to appreciate the nature of the allegations and pass a more informed order. Such exceptional cases aside, the normal role should be not to limit the operation of the order in relation to a period of time. Any other view would be a rather regressive throw-back to Salauddin times and put personal liberty in grave jeopardy.

IV. Conclusion – The primacy of personal liberty....

Anticipatory bail for a limited duration puts unnecessary fetters on the right to personal liberty guaranteed by the Constitution, and to make matters worse – these are fetters which were never envisaged by the legislature. In light of the plain language of Section 438 of the CrPC, the clear dictum in Sibbia and its jurisprudentially correct exposition in Mhetre, the reference made by the Supreme Court recently in Sushila Aggarwal (2018) may not be legally warranted or justifiable. Having said that, it is hoped that the Constitution Bench (now seized of the matter pursuant to the reference) while resolving this perceived incongruity, takes into account and gives due weightage to the 'liberty/due process element' which is at the very heart of the law relating to anticipatory bail.

The Authors want to thank Siddhant Grover for his valuable contributions.


1. Alfred Hitchcock, Halliwell's Filmgoer's Companion (1984).

2. Paragraph 21, Shri Gurbaksh Singh Sibbia and others Vs State of Punjab (1980) 2 SCC 565.

3. 2018 SCC Online SC 531.

4. Section 438, Code of Criminal Procedure, 1973.

5. Para 39.9., 41st Report, Law Commission of India (1969).

6. (1980) 2 SCC 565.

7. (1996) 1 SCC 667..

8. (2011) 1 SCC 694.

9. Or, for want of a better antonym to milestone, misleading sign posts.

10. Paragraph 26, Supra note 7.

11. Maneka Gandhi v. Union of India, (1978) 1 SCC 248.

12. Paragraph 2, Supra note 8.

13. Judicial propriety mandates that a decision of a Constitution Bench is binding on a smaller bench of two or three judges, and any decision not in conformity with the larger bench's judgment would be per incuriam [literally translating to "lack of care" by Court in not taking note of a binding authority]. Thus, the view taken in Salauddin was per incuriam the decision of Sibbia as there was no mention of it while giving a contrary opinion. See, for the doctrine of per-incuriamSubhash Chandra and Another v. Delhi Subordinate Services Selection Board and Others (2009) 15 SCC 458 (Paragraph 110).

14. (1998) 9 SCC 348.

15. 2005 SCC (Cri) 435.

16. (2005) 4 SCC 303.

17. Supra note 9.

18. Paragraph 13 and 14, Supra note 9.

19. Paragraph 124, Supra note 9.

20. Paragraph 117, Supra note 9.

21. Paragraph 124, Supra note 9.

22. 2008(5) Mh.L.J 824.

23. Ibid at Paragraph 70.

24. Paragraph 71, Supra note 22.

25. Paragraph 73, , Supra note 22.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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