Personal liberty is guaranteed by Article 21 of the Constitution of India, however, on the pragmatic side of the criminal justice system, this promise is hardly kept. The State rarely puts forth a conductive stance in bail applications, even when no real purpose may be served by keeping the accused in continuing incarceration. The State through Public Prosecutor takes an adversarial stand in almost every bail application.
Moreover, the Judicial Magistrates who are supposed to be the first guard against the arbitrary detention and unrequired custody, maybe police or judicial, are sometimes seen passing mechanical orders without the application of judicial mind. This has come under the scanner of the Hon’ble Supreme Court as well, and at times their lordships have not shied away from condemning this mechanical approach.
One important defence of personal liberty is the concept of ‘anticipatory bail’, which after stripping off the legalese, simply means that the bail is granted to the person who anticipates an arrest. It is an extremely crucial facet of bail jurisprudence and ensures that no person who may prima facie appear to have framed in a false complaint and is not a flight risk, or the person whose custody is not required seeing inter alia the nature of the offence, past conduct and willingness to assist the process of law faces unnecessary incarceration, loss of reputation and livelihood on the account of being locked off in a cell.
However, the jurisprudence surrounding anticipatory bail has its fair share of ambiguities, one of which is related to the life of anticipatory bail and expiry thereof. Though the Hon’ble Supreme Court had the pleasure of clearing the clouds surrounding this question of law through a Constitution Bench, however, the Hon’ble Court through other judgements pronounced on a later date laid different laws in relation to this. Hon’ble Supreme Court in a recent pronouncement has once again clarified that the law as laid by the Constitution Bench in earlier pronouncement is ‘law of the land’ and overruled the judgements which were in the contravention of its earlier pronouncement. We would be discussing the line of judgements that gave the present shape to the law on the life of anticipatory bail.
The necessity of anticipatory bail was pointed by the Law Commission of India, in its 41st Report dt. 24.09.1969. The Commission in its report observed that there is a conflict of judicial opinion in relation to the existence of a power to grant anticipatory bail and the majority view being that there is no such power under the Criminal Procedure as existed at the time. It was also observed by the Commission that at times false cases are filed to disgrace them by putting them in jail for at least a couple of days; even for the cases which may not be false and where there are reasonable grounds for holding a person accused of an offence not likely to abscond or otherwise misuse his liberty, it was observed that there is no purpose in arresting a person and putting them in prison for some days and they can even apply for bail.
In the interest of brevity, I will start the discussion with the Constitution Bench’s judgement which settled the law of anticipatory bail earlier – Shri Gurbaksh Singh Sibbia and Ors. v. State of Punjab (1980) 2 SCC 565. In the said order, their lordships were pleased to hold that there is no limit to the currency of an order of anticipatory bail. It was held that the Courts are vested with absolute discretion on the life and conditions of anticipatory bail as section 438 does not purport to impose any such restriction on the discretion of the Court exercising powers therein. The Court may impose any condition or restriction on the life of anticipatory bail as it deems fit, or may proceed to grant it sans any restriction or condition; Criminal Procedure does not impose any explicit or implicit restriction of such discretion, and accordingly, the Courts have complete discretion vested in them to decide on the life and conditions of anticipatory bail. An important point to note is that their lordships observed that the ‘normal rule’ is not to limit the order of anticipatory bail.
However, Hon’ble Supreme Court in Salauddin Abdulsamad Shaikh v. State of Maharashtra (1996) 1 SCC 667 has taken a substantially different view and position from Gurbaksh Singh Sibbia (Supra) and held that the order of anticipatory bail must necessarily be limited in the time frame.
There is another judgement of the Hon’ble Supreme Court which deviated from Gurbaksh Singh Sibbia (Supra) and held a view diametrically opposite to Salauddin Abdulsamad Shaikh (Supra); the case which I am referring to is Siddharam Satlingappa Mhetre v. State of Maharashtra (2011) 1 SCC 694. The Hon’ble Supreme Court proceeded to hold in this case that the anticipatory bail once granted shall continue to subsist during the entire currency of trial. While holding so, their lordships specifically rejected the notion that an anticipatory bail could also be granted for a limited time as well, on the expiry of which the accused must surrender and apply for regular bail.
These both judgements, i.e., Siddharam Satlingappa Mhetre (Supra) and Salauddin Abdulsamad Shaikh (Supra), are not only in disregard of the judgement of Constitution Bench in Gurbaksh Singh Sibbia (Supra) but also are diametrically opposite, lying on the extreme ends of the spectrum. Both of these judgements tend to lay down an absolute proposition of law which is contrary to the law laid in Gurbaksh Singh Sibbia (Supra). Hon’ble Supreme Court in Sushila Aggarwal v. State (NCT of Delhi) AIR 2020 SC 831, speaking through a five Judge Bench was pleased to overrule the ratio laid in Siddharam Satlingappa Mhetre (Supra) and Salauddin Abdulsamad Shaikh (Supra) and other judgements which followed them, as they were passed in ignorance of the law laid down the Constitution Bench in Gurbaksh Singh Sibbia (Supra). Their lordships also upheld and reiterated the law laid down in Gurbaksh Singh Sibbia (Supra).
The author most humbly concurs with the law laid down in Gurbaksh Singh Sibbia (Supra) which was reiterated in Sushila Aggarwal (Supra) for the following reasons:
There is no canon of interpretation that says that the law which has been drafted in the language of widest amplitude should be unnecessarily put in the shackles of limitations that legislature deemed not proper or unnecessary to impose. In the present case, the intention of legislature is quite clear from the wordings of Section 438, had they carried an intention of imposing a limitation on judicial discretion they had a model readily prepared in the form of Section 437 and 439 which could have been readily imported in Section 438 as well with necessary modifications. However, it has not been done, and the legislature has departed from the form of Section 437 and 439 while enacting Section 438. It would not be proper and definitely not necessary in the present case to read an intention into legislature which proves contrary to the legislative scheme of any provision. This departure made, not restricting judicial discretion in Section 438 has been correctly made in the opinion of the author reason being this section actually protects an extremely valuable right of personal freedom and the judicial discretion would be necessary to preserve and maintain the twin competing interests: the individual liberty and the sovereign power of the State to investigate the case. Moreover, the judicial discretion exercised by Court empowered under Section 438 is always open to correction by the Appellate Court. This forms a reasonable guard against the misuse of discretion so vested.
