The supreme court of India in Sushila Aggarwal v. State of NCT of Delhi held that anticipatory bail should not be limited to a fixed term. But if there are any special necessity then the court can fix the tenure of anticipatory bail.
(1) Whether the protection granted to a person under Section 438 Cr.P.C. should be limited to a fixed period so as to enable the person to surrender before the Trial Court and seek regular bail. (2) Whether the life of anticipatory bail should end at the time and stage when the accused is summoned by the court.
- 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.
- The protection granted to a person under Section 438 Cr. PC should not invariably be limited to a fixed period; it should inure in favour of the accused without any restriction on time. Normal conditions under Section 437 (3) read with Section 438 (2) should be imposed; if there are specific facts or features in regard to any offence, it is open for the court to impose any appropriate conditions.
- The life or duration of an anticipatory bail order does not end normally at the time and stage when the accused is summoned by the court, or when charges are framed but can continue till the end of the trial. Again, if there are any special or peculiar features necessitating the court to limit the tenure of anticipatory bail, it is open for it to do so.
- It would not be in the larger interests of society if the court, by judicial interpretation, limits the exercise of that power.
Guidelines for dealing with applications U/S 438 of Cr.P.C
- When a person complains of apprehension of arrest and approaches for order, the application should be based on concrete facts such as relating to the offence, and why the applicant reasonably apprehends arrest, as well as his side of the story, and not vague or general allegations, relatable to one or other specific offence.
- Depending on the seriousness of the threat of arrest the Court should issue a notice to the public prosecutor and obtain facts, even while granting limited interim anticipatory bail.
- Nothing in Section 438 Cr. PC, compels or obliges courts to impose conditions limiting relief in terms of time, or upon the filing of FIR, or recording of statement of any witness, by the police, during investigation or inquiry, etc. The need to impose other restrictive conditions depends upon the materials produced by the state or the investigating agency.
- Courts ought to be considered the nature and gravity of the offences, the role attributed to the applicant, and the facts of the case while considering whether to grant anticipatory bail or refuse it.
- Anticipatory bail granted can depending on the conduct and behaviour of the accused, continue after filing of the charge sheet till the end of the trial.
- An order of anticipatory bail should not be “blanket” in the sense that it cannot operate in respect of a future incident that involves the commission of an offence.
- An order of anticipatory bail does not limit or restrict the rights or duties of the police or investigating agency, to investigate the charges against the person who seeks and is granted pre-arrest bail.
- 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.
- It is open to the police or the investigating agency to move the court concerned, which grants anticipatory bail, for a direction under Section 439 (2) to arrest the accused, in the event of a violation of any term.
- The correctness of an order granting bail can be considered by the appellate or superior court at the behest of the state or investigating agency and set aside on the ground that the court granting it did not consider material facts or crucial circumstances. This does not amount to “cancellation” in terms of Section 439 (2) Cr.P.C.