Does Anticipatory Bail Expire Before Trial Ends?

Sushila Aggarwal and others are the petitioners in Special Leave Petition (Criminal) Nos. 7281–7282 of 2017. They challenged orders the Delhi High Court passed on July 25, 2017 and August 2, 2017 in Bail Application No. 1415 of 2017. The State (NCT of Delhi) and another party were on the other side.

The reported judgment does not set out the underlying accusation. It also does not describe how the lower courts ruled on the facts. The case mattered for a different reason.

On May 15, 2018, a three-judge Bench noticed that earlier Supreme Court decisions pulled in opposite directions on how long anticipatory bail should last. It sent two questions to a larger Bench. The first was whether pre-arrest protection should be limited to a fixed period, so that the person surrenders before the trial court and seeks regular bail. The second was whether the protection should end once the court summons the accused.

The government side pressed for limits. The Additional Solicitor General argued that Section 438 protects a person only during investigation. On that view, the accused should seek regular bail once a chargesheet is filed. Counsel for the Government of NCT and the Union also warned that unconditional orders could harm custodial interrogation. Earlier decisions had added their own worries. They said the regular trial court should not be "bypassed", and that economic offences need a different approach, so anticipatory bail should not be granted readily.

Two senior advocates assisted the Court as amici curiae, Harin P. Raval and K.V. Vishwanathan. Mr. Raval argued that courts have the discretion to limit how long anticipatory bail lasts. Mr. Vishwanathan argued that a Section 438 order works like any other bail order. In his view it continues until conviction or until a court passes a direction under Section 439(2).

Section 438 lets a Sessions Court or a High Court direct that a person who fears arrest for a non-bailable offence be released on bail if arrested. The section says nothing about how long that direction lasts. Two opposite lines of Supreme Court decisions grew out of that silence.

In Salauddin Abdulsamad Shaikh (1996), the Court said anticipatory bail orders "should be of a limited duration only". Once that duration or any extended duration expired, the court granting anticipatory bail was to leave the matter to the regular court. That court would decide on the evidence after the investigation had progressed or the charge-sheet was submitted. Later rulings followed this approach. They include K.L. Verma, Sunita Devi, Nirmal Jeet Kaur, Adri Dharan Das, HDFC Bank v. J.J. Mannan, Satpal Singh and Naresh Kumar Yadav. This line held that orders should carry conditions tied to time or to an event, such as the filing of a charge sheet.

Siddharam Satlingappa Mhetre (2011) went the other way. It held that the life of a Section 438 order cannot be curtailed and that no restrictive conditions can be imposed. The five-judge Bench found that both lines went too far. Both, it said, ran against Gurbaksh Singh Sibbia (1980), the earlier Constitution Bench ruling. Sibbia said: "The normal rule should be not to limit the operation of the order in relation to a period of time."

The Bench answered both referred questions in favour of liberty. It still left trial judges room to respond to genuine misuse.

• The Salauddin route was closed. The Court overruled Salauddin and the later decisions that limited anticipatory bail to a period of time. Filing a chargesheet does not, by itself, force the accused to surrender and seek regular bail. Summons or the framing of charges does not normally end the protection either.
• The Mhetre route was closed too. The Court overruled the observations that no restrictive conditions at all can be imposed. Courts ought to impose the standard conditions under Section 437(3) read with Section 438(2). Where specific facts justify it, a court may also make the relief time-bound or tie it to an event. Such limits should not be imposed in a routine manner.

Justice Bhat's opinion noted that the only bar Parliament has placed on this power is Section 438(4). Anticipatory bail does not apply to arrests for offences under Sections 376(3), 376AB, 376DA or 376DB of the IPC. The opinion added that if a special law excludes Section 438 relief, that exclusion must be duly considered.

• Gather concrete facts first. The Court said an application must rest on concrete facts relating to a specific offence, not vague or general allegations. It should set out the essential facts, why you reasonably fear arrest, and your side of the story. You do not need to wait for an FIR, but the facts must give a reasonable basis for apprehending arrest.

• Approach the correct forum. Only the Sessions Court or the High Court can grant anticipatory bail under Section 438. The court may issue notice to the public prosecutor, even while granting limited interim protection. If the police allege a breach later, they must move the court that granted the bail for a Section 439(2) direction.

• Keep the records the usual conditions demand. The standard conditions noted in the judgment include:

  • a personal bond with a recent self-attested photograph and surety;
  • your address and mobile number given to the Investigating Officer and the court;
  • your passport surrendered, or an affidavit filed stating that you do not have one.

  Once released, cooperate with the investigation, do not make any inducement, threat or promise to witnesses, and do not leave India without the court's permission.

• Avoid the biggest mistake. Do not seek or rely on a "blanket" order. Protection is confined to the specific offence or incident for which arrest was feared. It cannot cover a future incident involving a fresh offence.