Case Name : Sushila Aggarwal & Ors vs State NCT Delhi & Anr Case Reference: (2020) 5 SCC 1 : (2020) 2 SCR 1 Case Number: SLP (Crl) No.s 7281-7282/2017 Court: Supreme Court Bench: Constitution Bench (05) Coram: Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah (Author - Leading), S Ravindra Bhat (Author - Concurring) Date: 29.01.2020
Protection granted to a person under section 438 CrPC should not be limited to a fixed period and would inure in favour of an accused without any restriction on time. Normal condition under section 437(3) r/w section 438(2) are to be imposed; as also any appropriate condition.
The duration of anticipatory bail order does not end at the time and stage when the accused is summoned or when charges are framed and can continue till the end of the trial. However the court can limit tenure of anticipatory bail depending on any special or peculiar circumstances.
Application for anticipatory bail must be on the basis of concrete facts and not vague or general allegations; and must be relatable to one or other specific offence.
Application seeking anticipatory bail should contain bare essential facts relating to the offence and why the applicant reasonably apprehends arrest and his side of the story.
An application for anticipatory bail can be moved before an FIR is filed as long as the facts are clear and there is reasonable basis for apprehending arrest.
When approached with an application under section 438, depending on the seriousness of the threat of arrest, the court is advised to issue notice to the Public Prosecutor to obtain facts even while granted limited interim anticipatory bail
The court is not compelled or obliged to imposed conditions limiting relief in terms of time, or on filing of FIR, recording of statement of witness.
Considerations for application for grant of anticipatory bail include
- Nature and gravity offence
- Role of person
- Likelihood of influencing course of investigation
- Tampering with evidence
- Intimidating witness
- Likelihood of fleeing justice – leaving country
- Materials produced by State or investigating agency
- etc
Courts may be justified to impose conditions as in 437(3) or other restrictive conditions.
However, order of anticipatory bail should not be “blanket” and should not
- enable accused to commit further offences and
- claim relief of indefinite protection from arrest and
- should be confined to offence or incident for which arrest is sought in relation to a specific incident and
- cannot operate in respect of future incident that involves commission of an offence
- limit rights or duties or police or investigating agency to investigate into charges against person who seeks and is granted pre-arrest bail.
Police or investigating agency can move an application before court concerned which had granted anticipatory bail, for direction under section 439(2) to arrest accused in event of violation of any term such as:
- absconsion,
- non-cooperation during investigation,
- evasion,
- intimidation of witness,
- inducement of witness,
- etc
Correctness of order granting bail can be considered by appellate or superior court at behest of state or investigating agency and the same can be set aside on ground that material facts or crucial circumstances were not considered. However, this will not amount to cancellation in terms of section 439(2).
When a person has been granted anticipatory bail; one of the conditions can be that in case of likely discovery under section 27 Evidence Act, the person released on bail would be liable to be taken in police custody to facilitate the discovery and it would be possible for the prosecution to claim the benefit of section 27 made in pursuance of information supplied by person released on bail by invoking principle stated in Deoman Upadhayaya. This would be considered as limited custody or deemed custody.
Refer also: Gurbkash Singh Sibbia vs State of Punjab, (1980) 2 SCC 565 Prakash Kadam vs Ramprasad Vishwanath Gupta & Anr State through CBI vs Amarmani Tripathi State of UP vs Deoman Upadhyaya
See also: CrPC - Section 437 CrPC - Section 438 CrPC - Section 439 Evidence - Section 27
PDF: Sushila Aggarwal & Ors vs State NCT Delhi & Anr, (2020) 2 SCR 1.pdf
PDF-SCC: Sushila Aggarwal vs State (NCT of Delhi), (2020) 5 SCC 1.pdf