Judgement Summary, Uncategorized

Sushila Aggarwal v. State of NCT of Delhi, 2020 SCC OnLine SC 98

Issue before the court

  1. Whether the protection granted to a person under S. 438 CrPC should be limited to a fixed period so as to enable him to surrender before the trial court and seek regular bail
  2. Whether the life of anticipatory bail should end at the time and stage when the accused is summoned to the court

Major case referred in this case.

  1. Gurubaksh Singh Sibbia v State of Punjab (1980) -à Constitution bench decision 
  2. Salaludin Abdulsamad Sheikh v State of Maharashtra (1996) and other cases following its ratio
  3. Sidhram Satlingapa Mehtre V State of Maharashtra (2011) and other cases of the following its ratio

Background of the Review petition-

  1. Anticipatory bail is not defined in the original code. The provision of anticipatory bail was introduced in the 1973 code.
  2. A group of cases starting from Salaludin Abdulsamad Sheikh state that anticipatory bail should contain some conditions either with reference to time or an event such as filing of charge sheet etc. After that condition is satisfied the accused should surrender to court and seek regular bail.
  3. The other group of cases starting from Sidhram Satlingapa Mehtre state that, no condition ought to be imposed by the court while granting the anticipatory bail because it was to inure and protect the individual even if the charge was framed and trial started.
  4. However, Sibbia case does not provide for such inflexible approach of either line. The Court held in Sibbia that, imposing condition was an issue of fact. Court could impose condition as per the circumstances of each case.
  5. The present case settled all these issues.

The logic in Sibbia

  1. Sibbia referred the 41st law commission report to trace the genesis of the anticipatory bail. As per the recommendation of the 41st Law commission report, the provision of anticipatory bail was introduced in the code. The reasoning given in the report are quoted below.
    1. Sometimes, influential persons try to implicate their rivals in false cases for the purpose of disgracing them and put in jail. Political rivalry has accentuated the problem and hence a provision of pre-arrest bail needs to be introduced.
    1. This is a special power and to be vested only with Court of Sessions or the High Court
    1. The power to be exercise with DISCRETION of the court and the courts should take care that such use of power / discretion does not vitiate the process of fair trial
    1. The final order should be made only after notice to the public prosecutor
    1. The reason for granting such bail must be recorded in writing
  2. Sibbia said the provisions of S. 438 (Anticipatory bail) should not be interpreted in a narrow and restricted manner. Having, said this, the court in Sibbia held the following as quoted below.
    1. The court can impose conditions while granting anticipatory bail, as it is inherently provided in the text of S. 438.
    1. However, the power to impose conditions cannot be restricted or expanded by interpreting statute. It is actually a matter of facts and circumstances of the case
    1. The courts are free to exercise their judicial discretion in granting anticipatory bail imposing such conditions as the facts of the case warrant.
    1. No generalization can be made
  3. The question of anticipatory bail interfering with the investigation process came to be discussed in the Sibbia case. It was held following King Emperor v. Khwaja Nazir Ahmed (1945) that police and court function in complementary manner and not overlapping manner and judiciary should not interfere in the matters of investigation. A question came to fore, if an accused was granted anticipatory bail, then how police could exercise the provisions of S. 27 of Indian Evidence Act. The Court in Sibbia referred State of UP v Deoman Upadhayay (1960) and held that the phrase “taken to custody” was a wider term. That never meant arrest. If a person voluntary came to police and offered to give information leading to discovery of a fact having a bearing of him subjected to a criminal charge, he was said to have surrendered to police. Anticipatory bail was granted as a protection against arrest. Nothing prevented the person to whom bail was granted to appear before the police or surrender before police and give his confessional statement.
  4. On the question of “s. 438 being an extraordinary provision” the court held the power under S. 438 was definitely extraordinary in nature but that never meant it was to be used only in exceptional cases. It was a discretionary power with the higher courts and to be exercised with due care and caution depending on circumstances justifying its exercise.
  5. About conditions to be imposed the court in Sibbia held, S. 438 concerned with the life and liberty of the person and hence, over generous infusion of constraints and conditions which were not found in S. 438 itself was not acceptable. The beneficent provision of S. 438 must be saved.
  6. The Court in Sibbia also provided that certain conditions need to be satisfied before the higher courts use their discretion to use their power to grant Anticipatory bail. The conditions are quoted below.
    1. Applicant must provide that he had a reason to believe that he might be arrested in a non-bailable case. The reason must have backing of facts and must not be a mere fear
    1. Court of Session or High Court must apply their mind to find out whether a prima facie case was made out for use of S. 438
    1. Filing of FIR was not condition precedent to use of S. 438. Application of Anticipatory bail could be entertained and granted even if there was no FIR.
    1. Anticipatory bail could be granted till the time the person was not arrested.
    1. The provision could not be invoked after the arrest
    1. A blanket order of anticipatory bail was not be made because it might interfere with the rights and duties of police officers. It was the discretion of the courts to use the power. Based on the facts of the case, the court might impose conditions including a condition of time. But such conditions were to be imposed as per the facts of the matter and in certain exceptional cases.

The logic of Salaluddin and other similar cases

  1. During the grant of anticipatory bail, the evidence at hand was not decided and hence, the grant of anticipatory bail had to be limited to duration only and ordinarily at the expiry of that duration the court granting anticipatory bail should leave to the regular court to deal with the matter on an appreciation of evidence placed before it after the investigation has made progress or the charge sheet was submitted.
  2. Furthering this logic, in K.L. Verma v State it was held, grant of bail under S. 438 did not bypass the provision of S. 437 and the person to be under protection of S. 438 till the regular bail application was disposed of.
  3. In Sunita Devi, Nirmal Jeet Kaur and Adri Dharan Das used the ratio of Salaludin and held that the protection granted under S. 438 could not be extended beyond the time period indicated in Salaluddin or till the applicant availed remedies from High Court. (Getting remedies from the High Court means the lower courts are legally bypassed). Once Charge Sheet is submitted against a person having the protection of anticipatory bail, he ought to surrender before the court and seek regular bail.

The logic of Mehtre and other similar cases

  1. Mehtre held that the findings of Salaluddin and others were contrary to the findings of the constitutional bench in Sibbia and restriction on grant of anticipatory bail was not necessary. Citing Sibbia, the court held that while decided as per S. 438 there was no justification in reading into the conditions mentioned in S. 437.
  2. The order granting anticipatory bail for a limited duration and thereafter directing the accused to surrender and apply before a regular bail is contrary to the legislative intent and the judgment of the constitution bench at any point of time.
  3. Hence, held that the judgement of Salaluddin was contrary to the spirit of Anticipatory bail and had resulted in artificial and unreasonable restriction on the scope of enactment contrary to the legislative intent.
  4. The Court prescribed certain factors and parameters to be taken into consideration before deciding the question of anticipatory bail
    1. Nature and gravity of accusation and the exact role of the accused
    1. The criminal antecedent of the applicant 
    1. The possibility of the person fleeing from justice
    1. The possibility to commit similar such offences
    1. Whether the accusations have been made only with the object of injuring or humiliating the applicant
    1. Impact of anticipatory bail on society at large
    1. The court should clearly weigh the exact role of the person
    1. Balance to be struck between free and fair investigation and unjustified arrest
    1. The chance of tampering with evidence and threat to witnesses
    1. Element of genuine ness to be considered while deciding the matter

The decision in the present case

  1. There are two different lines of precedents and hence the incongruity needs to be settled.
  2. Various arguments are-
    1. Bail is the general rule and jail is an exception ( Datarams Singh V. State of UP)
    1. Anticipatory bail is the panacea for apprehension of arrest
    1. The discretion to set condition lies with the court as per the circumstances of each case and cannot be interpreted to court short its duration till the filing of charge sheet.
    1.  A logical deduction was made with respect to S. 167 (2) and statutory bail. If final form is not submitted within 60 days or 90 days the accused inside the judicial custody is granted automatic bail. However, if the charge sheet the filed then the same bail is not canceled. Hence, a protection of anticipatory bail should not go in the event of filing a charge sheet.
    1. The power of arrest is not to be exercised mandatorily as per Joginder Kumar v State of UP, Lalita Kumari v State of UP, Arnesh Kumar v State of Bihar. Even M.C. Abraham v State of Maharashtra states, police is not mandatorily required to arrest if the anticipatory bail is rejected.
  • Amicus Curie in the case provided a guideline for the grant of bail application
Stages S.O.P. for court
Before FIR Condition imposed till filing of FIR
After FIR before charge sheet Condition imposed till filing of charge sheet
After filing Charge Sheet Discretion of Court
  • Sibbia did not totally exclude the imposition of conditions. However, Mehtre said conditions could not be imposed. So Salaluldin was more close to the ratio of Sibbia than Mehtre.
    • There was an argument against the order of anticipatory bail because it thwarted custodial interrogation. Reliance was placed on State of A.P. V Bimal Krishna Kundu , Muralidharan V state of Kerala for the above proposition.
    • Jai Prakash Singh v State of Bihar was relied upon wherein it was held that anticipatory bail was not essential elements of Art. 21.
  • Reasoning of the court –

A. Whether the protection granted to a person under S. 438 CrPC should be limited to a fixed period so as to enable a person to surrender before the trial court and seek regular bail

  1. S. 438 was included as. Curative measure to deal with the problem of unwarranted arrest.
    1. It is not hedge with any obligation on the court’s power to impose conditions
    1. The only bar or restriction imposed by parliament upon the exercise of the power (to grant anticipatory bail) is by way of a positive restriction, i.e. in the case where accused are alleged to have committed offences punishable under section 376 (3) or sections 376AB or Section 376 DA or Section 376 DB of the penal code.
    1. Parliament by law has restricted the power of the courts in certain cases such S. 376 AB, S. 376DA, S. 376 DB.  It means that parliament does not want to restrict the power of anticipatory bail of court by a blanket order and exhorts to take up in case to case basis.
    1. The text of the statue does not say, that the parliament has required the court to impose conditions. It was left with the discretion of the court to impose condition on a case to case basis. The court relied on the concept of interpretation of statues is Reserve Bank of India v Peerless General Finance and Investment CO ltd and Chandra Mohan v State of Uttar Pradesh and states that, “interpretation must depend on the text and the context. No part of statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place an everything in its place.”
    1. Similarly, in Directorate of Enforcement v Deepak Mahajan, State of Haryana v Sampuran Singh the court held that by no stretch of imagination a judge can add to something more than what is there in the text of the statute which shows the intent of the legislature.
    1. Deoman Upadahya case says bail is not a hindrance to custodial examination and S. 27 of Indian Evidence Act. Same logic was imposed in Vallabh das Liladhar v. Asst. Collector of Customs
    1. Hence, there is no logic that if conditions are not imposed, fair investigation will be compromised. And hence court held that
      1. The observation of Sallaluddin that indicate ‘such time related or investigative event related conditions should invariably be imposed at the time of grant of anticipatory bail’ are therefore over ruled.
      1. The observation in Mhetre “ the courts should not impose restrictions on the ambit and scope of S. 438 which are not envisaged by legislature. The court cannot rewrite the provisions in the statute in the garb of interpreting it” is too wide and overruled.  The court held, as per Sibbia conditions can be imposed as per the facts of the case.

B. Whether the life of anticipatory bail should end at the time and stage when the accused is summoned to the court

  1. The logic of Gurhsaran Singh case about statutory bail referred above was followed. Hence filing of charge sheet cannot be a limiting condition for respite of bail.
  2. Taking into custody is still permissible even after grant of bail, because as per Pradeep Ram case, without cancelling of bail on relevant consideration, the court can direct the arrest of the accused.
  3. The court held that unless circumstances to the contrary: in the form of behavior of the accused suggestive of his fleeing from justice or evading the authority of jurisdiction of the court, or his intimidating witness or trying to intimidating them, or violate any condition imposed while granting anticipatory bail, the law does not require the person to surrender to the court on summons of trial being served on him. Subject to compliance with the conditions imposed, the anticipatory bail given to a person can continue till the end of trial.

The guidelines provided to deal with S. 438

  1. There is no limitation of the time of filing anticipatory bail. It can be filed before FIR also. There has to be reasonable apprehension about the arrest.
  2. The court even while granting limited anticipatory bail may issue notice to public prosecutor and obtain facts
  3. S. 438 does not compel to impose conditions. Imposition of conditions has to be decided on the facts and circumstances of the case
  4. Courts ought to be guided by nature and gravity of the crime before deciding on anticipatory bail.
  5. Once granted the anticipatory bail shall remain in force till end of trial depending on the conduct and behavior of the accused. The anticipatory bail is not a blanket protection.
  6. Order of Anticipatory bail does not restrict the rights and duties of the police officer to investigate into the charges.
  7. Limited custody or deemed custody provided in Sibbia is sufficient for the provision of S. 27 of Indian Evidence act
  8. If any terms or conditions are violated the prosecution can move to court to cancel the anticipatory bail
  9. The correctness of grant of anticipatory bail can be decided on appeal to higher court at the behest of investigating agency
  10. Sallaludin is overruled to the extent that no condition or term limiting the grant of anticipatory bail to a period of time can be given. Mehtre is overruled to the extent that no restrictive conditions can be imposed while granting the anticipatory bail.

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