SUSHILA AGGARWAL vs. STATE (NCT OF DELHI)

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION SPECIAL LEAVE PETITION (CRIMINAL) NOS.7281-7282 OF 2017 SUSHILA AGGARWAL & ORS. PETITIONER (S) VERSUS STATE (NCT OF DELHI) & ANR. RESPONDENT(S) O R D E R KURIAN, J. 1. Whether an anticipatory bail should be for a limited period of time is the issue before us on which there are two divergent views. 2. The line of judgments that anticipatory bail should not Signature Not Verified be for a limited period places its reliance on the Constitution Digitally signed by OM PRAKASH SHARMA Date: 2018.05.15 18:01:46 IST Reason: 1 Bench decision of this Court in Shri Gurbaksh Singh Sibbia 1 and others v. State of Punjab . 3. Siddharam Satlingappa Mhetre v. State of 2 Maharashtra and others is a very detailed judgment by a Bench of two Judges on the scope and object of an anticipatory bail. In Mhetre (supra) , this Court took the view that the Constitution Bench has held that anticipatory bail granted by the court should ordinarily continue till the trial of the case. To quote:

1 (1980) 2 SCC 565 2 (2011) 1 SCC 694 2

(Emphasis supplied) The decision in Mhetre was recently followed in Bhadresh 3 Bipinbhai Sheth v. State of Gujarat and another . 4. The other line of judgments is that orders of anticipatory bail should be of a limited duration. Salauddin Abdulsamad 4 Shaikh v. State of Maharashtra is one of the earlier decisions of a three Judge Bench. True, there is no reference to the Constitution Bench in Sibbia’s case (supra). However, discussing the concept of anticipatory bail, this Court took the view that :- “ 2. Under Section 438 of the Code of Criminal Procedure when any person has reason to believe that he may be arrested on an accusation of having committed a non- bailable offence, the High Court or the Court of Session may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail and in passing that order, it may include such conditions having regard to the facts of the particular case, as it may deem appropriate. Anticipatory bail is granted in anticipation of arrest in non-bailable cases, but 3 (2016) 1 SCC 152 4 (1996) 1 SCC 667 3 that does not mean that the regular court, which is to try the offender, is sought to be bypassed and that is the reason why the High Court very rightly fixed the outer date for the continuance of the bail and on the date of its expiry directed the petitioner to move the regular court for bail. That is the correct procedure to follow because it must be realised that when the Court of Session or the High Court is granting anticipatory bail, it is granted at a stage when the investigation is incomplete and, therefore, it is not informed about the nature of evidence against the alleged offender. It is, therefore, necessary that such anticipatory bail orders should be of a limited duration only and ordinarily on the expiry of that duration or extended duration the court granting anticipatory bail should leave it to the regular court to deal with the matter on an appreciation of evidence placed before it after the investigation has made progress or the charge-sheet is submitted. 3. It should be realised that an order of anticipatory bail could even be obtained in cases of a serious nature as for example murder and, therefore, it is essential that the duration of that order should be limited and ordinarily the court granting anticipatory bail should not substitute itself for the original court which is expected to deal with the offence. It is that court which has then to consider whether, having regard to the material placed before it, the accused person is entitled to bail.” 4 This view has also been followed in K.L. Verma v. State 5 and another , Sunita Devi v. State of Bihar and 6 7 another , Adri Dharan Das v. State of W.B. . In K.L. Verma (supra), after referring to Salauddin (supra), this Court held as follows: “ 3. We have carefully examined both the orders of 9-10-1996 and 11-10-1996 and have also heard counsel for the accused as well as counsel for the CBI and we are of the opinion that the proper course for the High Court was to decide on the question of the requirement of sanction and if the High Court could not do so, to have stayed further proceedings till that vital question was answered. On the other question emanating from the order dated 9-10-1996, we find that the High Court placed reliance on this Court’s decision in Salauddin Abdulsamad Shaikh v. State of Maharashtra which was a case in which the High Court, while granting interim anticipatory bail, imposed certain conditions, one of which was that the accused should move for regular bail before the Court which was in seisin of the case pending against him. The High Court also observed that the application should be disposed of uninfluenced by the observations made in the earlier order. The special leave petition was directed against that order of the High Court. While dealing with that order, this Court observed that under Section 438 of the Code, when any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, the 5 (1998) 9 SCC 348 6 (2005) 1 SCC 608 7 (2005) 4 SCC 303 5 High Court or the Court of Session may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail and in passing that order, it may include such conditions as it may deem appropriate. This Court further observed that anticipatory bail is granted in anticipation of arrest in non-bailable cases, but that does not mean that the regular court, which is to try the offender, is sought to be bypassed. It was, therefore, pointed out that it was necessary that such anticipatory bail orders should be of a limited duration only and ordinarily on the expiry of that duration or extended duration the court granting anticipatory bail should leave it to the regular court to deal with the matter on an appreciation of evidence placed before it after the investigation has made progress or the charge-sheet is submitted. By this, what the Court desired to convey was that an order of anticipatory bail does not enure till the end of trial but it must be of limited duration as the regular court cannot be bypassed. The limited duration must be determined having regard to the facts of the case and the need to give the accused sufficient time to move the regular court for bail and to give the regular court sufficient time to determine the bail application. In other words, till the bail application is disposed of one way or the other the court may allow the accused to remain on anticipatory bail. To put it differently, anticipatory bail may be granted for a duration which may extend to the date on which the bail application is disposed of or even a few days thereafter to enable the accused persons to move the higher court, if they so desire. This decision was not intended to convey that as soon as the accused persons are produced before the regular court the anticipatory bail ends even if the court is yet to decide the question of bail on merits. The 6 decision in Salauddin case has to be so understood.” 8 In Nirmal Jeet Kaur v. State of M.P. and another , K.L. Verma (supra) in so far as it stated that “... or even a few days thereafter to enable the accused persons to move the

with the statutory requirement under Section 439. To quote: “ 13. The grey area according to us is the following part of the judgment in K.L. Verma case “or even a few days thereafter to enable the accused persons to move the higher court, if they so desire”.

20. In Salauddin case also this Court observed that the regular court has to be moved for bail. Obviously, an application under Section 439 of the Code must be in a manner in accordance with law and the accused seeking remedy under Section 439 must ensure that it would be lawful for the court to deal with the application. Unless the applicant is in custody his making application only under Section 439 of the Code will not confer jurisdiction on the court to which the application is made. The view regarding extension of time to “move” the higher court as culled out from the decision in K.L. Verma case shall have to be treated as having been rendered per incuriam, as no reference was made to the prescription in 8 (2004) 7 SCC 558 7 Section 439 requiring the accused to be in custody. In State v. Ratan Lal Arora it was held that where in a case the decision has been rendered without reference to statutory bars, the same cannot have any precedential value and shall have to be treated as having been rendered per incuriam. The present case stands at par, if not, on a better footing. The provisions of Section 439 do not appear to have been taken note of.

9 5. This Court in HDFC Bank Limited v . J.J. Mannan has referred to a contention based on the Constitution Bench decision in Sibbia (supra) and yet it has taken the view that the protection under Section 438 is only till the investigation is completed and chargesheet is filed. To quote paragraphs 14 and 18 to 20 :-

9 (2010) 1 SCC 679 8

18. Furthermore, it has also been consistently indicated that no blanket order could be passed under Section 438 CrPC to prevent the accused from being arrested at all in connection with the case. To avoid such an eventuality it was observed in Adri Dharan Das case that anticipatory bail is given for a limited duration to enable the accused to surrender and to obtain regular bail. The same view was reiterated in Salauddin case wherein it was, inter alia, observed that anticipatory bail should be of limited duration only and primarily on the expiry of that duration or extended duration, the court granting anticipatory bail should leave it to the regular court to deal with the matter on an appreciation of evidence placed before it after the investigation has made progress or the charge-sheet is submitted. 19. The object of Section 438 CrPC has been repeatedly explained by this Court and the High Courts to mean that a person should not be harassed or humiliated in order to satisfy the grudge or personal vendetta of the complainant. But at the same time the provisions of Section 9 438 CrPC cannot also be invoked to exempt the accused from surrendering to the court after the investigation is complete and if charge-sheet is filed against him. Such an interpretation would amount to violence to the provisions of Section 438 CrPC, since even though a charge-sheet may be filed against an accused and charge is framed against him, he may still not appear before the court at all even during the trial. 20. Section 438 CrPC contemplates arrest at the stage of investigation and provides a mechanism for an accused to be released on bail should he be arrested during the period of investigation. Once the investigation makes out a case against him and he is included as an accused in the charge-sheet, the accused has to surrender to the custody of the court and pray for regular bail. On the strength of an order granting anticipatory bail, an accused against whom charge has been framed, cannot avoid appearing before the trial court.

10 6. In Satpal Singh v. The State of Punjab at paragraph 14, it has been held: “ 14. In any case, the protection under Section 438, Cr.P.C. is available to the 10 (2018) SCC Online SC415 10 accused only till the court summons the accused based on the charge sheet (report under Section 173(2), Cr.P.C.). On such appearance, the accused has to seek regular bail under Section 439 Cr.P.C. and that application has to be considered by the court on its own merits. Merely because an accused was under the protection of anticipatory bail granted under Section 438 Cr.P.C. that does not mean that he is automatically entitled to regular bail under Section 439 Cr.P.C. The satisfaction of the court for granting protection under Section 438 Cr.P.C. is different from the one under Section 439 Cr.P.C. while considering regular bail.” 7. It is relevant to point out that placing reliance on Sibbia (supra), the two-Judge Bench in Mhetre (supra) has taken the stand that the decisions in Salauddin (supra), KL Verma (supra), Adri Dharan Das (supra) and Sunita Devi (supra) are per incuriam. To quote:- “ 123. In view of the clear declaration of law laid down by the Constitution Bench in Sibbia case, it would not be proper to limit the life of anticipatory bail. When the Court observed that the anticipatory bail is for limited duration and thereafter the accused should apply to the regular court for bail, that means the life of Section 438 CrPC would come to an end after that limited duration. This limitation has not been envisaged by the legislature. The Constitution Bench in Sibbia case clearly observed that it is not 11 necessary to rewrite Section 438 CrPC. Therefore, in view of the clear declaration of the law by the Constitution Bench, the life of the order under Section 438 CrPC granting bail cannot be curtailed. 124. The ratio of the judgment of the Constitution Bench in Sibbia case perhaps was not brought to the notice of Their Lordships who had decided the cases of Salauddin Abdulsamad Shaikh v. State of Maharashtra, K.L. Verma v. State, Adri Dharan Das v. State of W.B. and Sunita Devi v. State of Bihar. 125. In Naresh Kumar Yadav v. Ravindra Kumar a two-Judge Bench of this Court observed: (SCC p. 632d) “the power exercisable under Section 438 CrPC is somewhat extraordinary in character and it [should be exercised] only in exceptional cases.” This approach is contrary to the legislative intention and the Constitution Bench’s decision in Sibbia case.

127. The judgments and orders mentioned in paras 124 and 125 are clearly contrary to the law declared by the Constitution Bench of this Court in 1 Sibbia case . These judgments and orders are also contrary to the legislative intention. The Court would not be justified in rewriting Section 438 CrPC.

12 138. The analysis of English and Indian law clearly leads to the irresistible conclusion that not only the judgment of a larger strength is binding on a judgment of smaller strength but the judgment of a coequal strength is also binding on a Bench of Judges of coequal strength. In the instant case, judgments mentioned in paras 124 and 125 are by two or three Judges of this Court. These judgments have clearly ignored the Constitution Bench judgment of this Court in Sibbia case which has comprehensively dealt with all the facets of anticipatory bail enumerated under Section 438 CrPC. Consequently, the judgments mentioned in paras 124 and 125 of this judgment are per incuriam.” 8. Shri Harin P. Raval, learned Senior Counsel and Amicus Curiae submits that in the light of the two conflicting schools of thought the matter needs consideration by a larger Bench. According to him even the Constitution Bench in Sibbia (supra) does not, in so many words, lay down a proposition that the protection of anticipatory bail is available to an accused till the conclusion of the trial. 9. Also having heard learned counsel appearing on both sides, we are of the prima facie view that the Constitution Bench in Sibbia (supra) has not laid down the law that once an anticipatory bail, it is an anticipatory bail forever. 13 10. In Sibbia (supra), this Court has briefly dealt with the question of duration of anticipatory bail. It seems to us that the discussion primarily pertained to grant of anticipatory bail at the pre-FIR stage (see paragraph 43 quoted below). It appears that there are indications in Sibbia (supra) that anticipatory bail may be for a limited period. To quote paragraphs 19, 40, 42 and 43:- “ 19. … While granting relief under Section 438(1), appropriate conditions can be imposed under Section 438(2) so as to ensure an uninterrupted investigation. One of such conditions can even be that in the event of the police making out a case of a likely discovery under Section 27 of the Evidence Act, the person released on bail shall be liable to be taken in police custody for facilitating the discovery. Besides, if and when the occasion arises, it may be possible for the prosecution to claim the benefit of Section 27 of the Evidence Act in regard to a discovery of facts made in pursuance of information supplied by a person released on bail by invoking the principle stated by this Court in State of U.P. v. Deoman Upadhyaya to the effect that when a person not in custody approaches a police officer investigating an offence and offers to give information leading to the discovery of a fact, having a bearing on the charge which may be made against him, he may appropriately be deemed so have surrendered himself to the police. The broad foundation of this rule is stated to be that Section 46 of the Code of Criminal Procedure does not contemplate any formality before a 14

15

16

11. In the light of the conflicting views of the different Benches of varying strength, we are of the opinion that the legal position needs to be authoritatively settled in clear and unambiguous terms. Therefore, we refer the following questions for consideration by a larger Bench :- (1) Whether the protection granted to a person under Section 438 CrPC should be limited to a fixed period so as to enable the person to 17 surrender before the Trial Court and seek regular bail. (2) Whether the life of an anticipatory bail should end at the time and stage when the accused is summoned by the court. 12. Accordingly, we direct the Registry to place the papers before Hon’ble the Chief Justice of India. ………………………......................J. [KURIAN JOSEPH] …………………….........................J. [MOHAN M. SHANTANAGOUDAR] …………………….........................J. [NAVIN SINHA] NEW DELHI; MAY 15, 2018. 18