Supreme Court Refers Conflicting Views on Duration of Anticipatory Bail to Larger Bench

Bench highlights divergent precedents on whether anticipatory bail should be time-limited or continue till trial, seeking authoritative clarification

In a significant development concerning criminal jurisprudence, the Supreme Court of India, in the case of Sushila Aggarwal v. State (NCT of Delhi), has referred the contentious issue regarding the duration of anticipatory bail to a larger Bench for an authoritative decision. The judgment, pronounced on May 15, 2018, addresses the conflicting views among various Benches of the Supreme Court concerning whether anticipatory bail should be granted for a limited period or continue until the conclusion of the trial.

The crux of the matter lies in the interpretation of Section 438 of the Criminal Procedure Code (CrPC), 1973, which empowers courts to grant anticipatory bail to individuals who apprehend arrest for non-bailable offenses. While the Constitution Bench in Shri Gurbaksh Singh Sibbia v. State of Punjab (1980) established anticipatory bail as a beneficent provision protecting personal liberty, subsequent judgments have differed on its temporal scope.

One line of judicial thought, following the Siddharam Satlingappa Mhetre v. State of Maharashtra decision, holds that anticipatory bail should ordinarily continue till the trial. This view finds support in the Constitution Bench ruling of Sibbia, emphasizing that the legislature did not intend to limit the duration of anticipatory bail. The Court in Mhetre underscored that an initial interim bail should be granted, after which the Public Prosecutor can be heard, and conditions imposed. Importantly, it held that anticipatory bail should not be curtailed prematurely, enabling the accused to retain protection through the trial phase.

Conversely, another judicial strand considers anticipatory bail as inherently temporary, valid only for a limited duration until the accused surrenders before the trial court and applies for regular bail. This approach finds expression in earlier decisions like Salauddin Abdulsamad Shaikh v. State of Maharashtra (1996) and K.L. Verma v. State (1998), where the Court reasoned that anticipatory bail is granted at an investigative stage, often before the evidence is fully developed, and thus must not bypass the regular trial court’s authority. The limited duration ensures that once the investigation is complete and chargesheet filed, the accused must seek regular bail under Section 439 CrPC. This view is also consistent with the principle that anticipatory bail is an extraordinary remedy, exercised sparingly and temporarily.

Further complicating the legal landscape, the Court in HDFC Bank Limited v. J.J. Mannan (2010) and more recent decisions have articulated that anticipatory bail protection ceases once the accused is summoned by the trial court and that regular bail proceedings must then be initiated. The Court also cautioned against an interpretation that would allow the accused to indefinitely avoid appearing before the trial court on the basis of anticipatory bail.

In the current judgment, the Supreme Court candidly acknowledged the existence of these divergent views, even labeling some judgments as *per incuriam* for not properly considering the Constitution Bench ruling in Sibbia. The Court observed that the Sibbia judgment does not explicitly hold that anticipatory bail lasts till the end of the trial in all circumstances, leaving room for interpretation.

To resolve this legal uncertainty, the Supreme Court posed two critical questions to be decided by a larger Bench:

1. Whether the protection granted under Section 438 CrPC should be limited to a fixed period to enable the accused to surrender before the trial court and seek regular bail.

2. Whether the life of anticipatory bail ends when the accused is summoned by the trial court.

This referral underscores the Court’s commitment to striking a balance between protecting individual liberty and safeguarding the integrity of the criminal justice process. The larger Bench’s ruling is expected to provide clear, authoritative guidance on the procedural and substantive contours of anticipatory bail, thereby harmonizing the judicial approach across the country.

The judgment also reiterates that anticipatory bail is a protective measure to prevent harassment and unnecessary detention but must not be used as a tool to evade the judicial process. It emphasizes the role of conditions and the necessity of the accused cooperating with investigation and trial proceedings.

Legal experts anticipate that the forthcoming larger Bench decision will have far-reaching implications for criminal procedure, influencing bail practice in trial courts and High Courts nationwide.

Statutory provisions

Section 438, Section 439, Section 173(2), Section 27 (Evidence Act), Section 46, Section 167(2), Section 240 of the Criminal Procedure Code, 1973

Sushila Aggarwal v. State (NCT of Delhi) (SC) : Law Finder Doc Id # 1033492