The Supreme Court’s five judges’ bench, in Sushila Aggarwal v. State of NCT of Delhi (decided on 29th Jan 2020), has decided the conflict of opinions among its different previous benches of varying strengths. The question is regarding the time limit of protection from arrest afforded to an accused/applicant while granting anticipatory bail to them. Questions regarding time limit of protection under anticipatory bail were referred to a larger constitution bench in this case. The judgment deals with issues such as time period through which the protection of anticipatory bail should continue, occurring of events such as filing of charge sheet when the protection should come to an end, re-arrest of accused on happening of certain event such as invocation of further offences against him etc.
Section 438, Cr.P.C. provides for the application for anticipatory bail, wherein Sessions or the High Court, upon being satisfied that there is reasonable possibility of imminent arrest of the applicant and that there are certain other parameters in favour of the applicant, may direct the applicant to be released on bail in event of his arrest. Such other parameters referred above are possibility of fleeing form justice, possibility of tampering evidence, gravity of offence and the like.
The Constitution’s bench judgment in Gurbaksh Singh Sibbia had held that ordinarily, there is no time limit regarding protection of anticipatory bail granted to an applicant. Ergo, it should continue for the entire duration of the trial. However, the key word here is ‘ordinarily’. Certain circumstances may demand that the protection be limited in time so as to enable the trial court to assess the situation and pass necessary orders in future. The said judgment, thus, provided that although ordinarily, there should be no restriction of time, the court could provide, in certain circumstances, for limiting the time period of protection.
The said judgment was since noted by several other judgments; albeit not wholly. For instance, in Siddharam Satlingappa judgment, the Supreme Court merely noted that there should be no time limit for affording protection of anticipatory bail and missed that there could be circumstances requiring placement of time limit. On the other hand, in judgment of Supreme Court in Salauddin Abdulsamad and others which followed, it was held that courts should provide for some upper limit of time regarding the protection of anticipatory bail such as period till summoning of accused or filing of charge sheet etc. In such an event, the Magistrate or Sessions Court, as the case may be, would be required to take a call on whether to continue the protection of the accused or to send him to custody.
As can be readily observed, there can be no conflict on the issue as Gurubaksh Singh Sibbia is a constitution bench judgment and all other judgments were delivered by benches of lower strength. Therefore, the lower strength benches could not have gone against the dictum of the larger bench decision, courtesy- the law of precedence. Therefore, latter judgments providing otherwise are to that extent, per incuriam. Thus, till date, the law laid down in Gurubaksh Singh Sibbia prevails on the aspect of anticipatory bail. The same has been held by the judgment in Sushila Aggarwal v. State of NCT of Delhi which overrules the contradictory ratios of Satlingappa, Salauddin and others.
The Supreme Court also reiterates the law settled by Sibbia that the police can always apply for cancellation of protection in certain events such as tampering with evidence by accused, invocation of further offences against the accused etc. The judgment clarifies that the police must seek an order from court permitting re-arrest upon additional provisions being added against the accused.
The judgment in Gurubaksh Singh Sibbia is otherwise also a good read and provides for a near exhaustive reading on the anticipatory bail. It also discusses several other problems with the concept of anticipatory bail and holds- its application to heinous offences, no presumption regarding applicant fleeing from justice, no special or rare application of provision etc. Read that judgment to also find out whether an FIR is necessary to get anticipatory bail or about application of section 27, Evidence Act, when the accused has the protection of anticipatory bail. You would then be introduced to legal fictions like ‘deemed custody’.
The judgment in Sushila Aggarwal runs an underlying theme of protection of liberty of individual in all cases while permitting only rare infractions by state. Even those infractions have to be minutely enclosed in the narrow body of allowance provided in judgments. J. Ravindra Bhat aptly concludes his concurring judgment with:
”79. In conclusion, it would be useful to remind oneself that the rights which the citizens cherish deeply, are fundamental- it 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.'”
J. Bhat also provides a valid rationale for not laying down the scope of application of the provision exhaustively:
’80. Therefore, it would not be in the larger interests of society if the court, by judicial interpretation, limits the exercise of that power: 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’
Read the judgment in Sushila Aggarwal v. State of NCT of Delhi here .