SUSHILA AGGARWAL AND OTHERS v. STATE (NCT OF DELHI) AND ANOTHER  2 S.C.R. 1
[ARUN MISHRA, INDIRA BANERJEE, VINEET SARAN, M. R. SHAH AND S. RAVINDRA BHAT, JJ.]
Code of Criminal Procedure, 1973 – ss.437, 438, 439 and
– Order u/s.438 granting anticipatory bail
– Conflicting views of different Benches of varying strength as to whether the protection granted u/s.438 should be limited to a fixed period so as to enable the person to surrender before Trial Court and seek regular bail; – – – whether the life of an anticipatory bail should end at the time and stage when the accused is summoned by the court
The expression “anticipatory bail” has not been defined in the Code. As observed by Supreme Court in the case of Balchand Jain, “anticipatory bail” means “bail in anticipation of arrest”. As held, the expression “anticipatory bail” is a misnomer inasmuch as it is not as if bail is presently granted by the Court in anticipation of arrest. An application for “anticipatory bail” in anticipation of arrest could be moved by the accused at a stage before an FIR is filed or at a stage when FIR is registered but
the charge sheet has not been filed and the investigation is in progress or at a stage after the investigation is concluded. Power to grant “anticipatory bail” under Section 438 of the Cr.P.C. vests only with the Court of Sessions or the High Court. Therefore, ultimately it is for the concerned court to consider the application for “anticipatory bail” and while granting the “anticipatory bail” it is ultimately for the concerned court to impose conditions including the limited period of “anticipatory bail”, depends upon the stages at which the application for anticipatory bail is moved. A person in whose favour a pre-arrest bail order is made under Section 438 of the Cr.P.C. has to be arrested. However, once there is an order of pre-arrest bail/anticipatory bail, as and when he is arrested he has to be released on bail. Otherwise, there is no distinction or difference between the pre-arrest bail order under Section 438 and the bail order under Section 437 & 439 of the Cr.P.C. The only difference between the pre-arrest bail order under Section 438 and the bail order under Sections 437 and 439 is the stages at which the bail order is passed. The bail order under Section 438 of the Cr.P.C. is prior to his arrest and in anticipation of his arrest and the order of bail under Sections 437 and 439 is after a person is arrested. A bare reading of Section 438 of the Cr.P.C. shows that there is nothing in the language of the Section which goes to show that the pre-arrest bail granted under Section 438 has to be time bound. The position is the same as in Section 437 and Section 439 of the Cr.P.C. [Para 7.1][33EH, 34A-D]
1.2 Considering the decision of the Constitution Bench of Supreme Court in the case of Gurbaksh Singh Sibbia and the relevant observations, the decision of this Court in the case of Siddharam Satlingappa Mhetre to the extent it takes the view that the life of the order under Section 438 Cr.P.C. cannot be curtailed is not a correct law in light of the observations made by the Constitution Bench in paragraphs 42 and 43 in Gurbaksh Singh Sibbia. The decision of Supreme Court in the case of Salauddin Abdulsamad Shaikh which takes an extreme view that the order of “anticipatory bail” has to be necessarily limited in time frame is also not a good law and is against and just contrary to the decision in the case of Gurbaksh Singh Sibbia, which is a Constitution Bench judgment. [Para 7.4]
1.3 Thus, considering the observations made by the Constitution Bench of Supreme Court in the case of Gurbaksh Singh Sibbia, the court may, if there are reasons for doing so, limit the operation of the order to a short period only after filing of an FIR in respect of the matter covered by order and the applicant may in such case be directed to obtain an order of bail under Sections 437 or 439 of the Code within a reasonable short period after the filing of the FIR. The Constitution Bench further observed that the same need not be followed as an invariable rule. It is further observed and held that normal rule should be not to limit the operation of the order in relation to a period of time. The conditions can be imposed by the concerned court while granting pre-arrest bail order8787 including limiting the operation of the order in relation to a period of time if the circumstances so warrant, more particularly the stage at which the “anticipatory bail” application is moved, namely, whether the same is at the stage before the FIR is filed or at the stage when the FIR is filed and the investigation is in progress or at the stage when the investigation is complete and the charge sheet is filed. However, the normal rule should be not to limit the order in relation to a period of time. [Para 7.5][49D-H]
Shri Gurbaksh Singh Sibbia and others v. State of Punjab (1980) 2 SCC 565 :  3 SCR 383 – relied on.
Siddharam Satlingappa Mhetre v. State of Maharashtra (2011) 1 SCC 694 :  15 SCR 201 – held not correct law.
Salauddin Abdulsamad Shaikh v. State of Maharashtra (1996) 1 SCC 667 :  6 Suppl. SCR 556 – held not good law.
Bhadresh Bipinbhai Sheth v. State of Gujarat (2016) 1 SCC 152 :  10 SCR 398; K.L. Verma v. State and another (1998) 9 SCC 348; Sunita Devi v. State of Bihar (2005) 1 SCC 608 :  6 Suppl. SCR 707; Nirmal
Jeet Kaur v. State of M.P. (2004) 7 SCC 558 :  3 Suppl. SCR 1006; HDFC Bank Limited v. J.J. Mannan (2010) 1 SCC 679 :  16 SCR 590; Satpal Singh v. State of Punjab (2018) 4 SCC 303 :  3 SCR 739; Balchand Jain v. State of M.P. (1976) 4 SCC 572 :  2 SCR 52; Joginder Kumar v. State of U.P. (1994) 4 SCC 260; Lalitha Kumari v. State of U.P. (2014) 2 SCC 1 :  14 SCR 713; Arnesh Kumar v. State of Bihar (2014) 8 SCC 273 :  8 SCR 128; M.C. Abraham v. State of Maharashtra (2003) 2 SCC 649 :  5 Suppl. SCR 677 ; Uday Mohanlal Acharya v. State of Maharashtra (2001) 5 SCC 453 :  2 SCR 878 – referred to.