Does Anticipatory Bail have an expiration date? Question referred to larger SC Bench

The question of whether the grant of anticipatory bail should be limited to a definite period of time has been referred to a larger Bench of the Supreme Court by a three judge Bench of Justices Kurian Joseph, Mohan M Shantanagoudar and Navin Sinha..The order passed on Tuesday poses the following questions to be considered by the larger Bench, i.e..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 surrender before the 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 law on anticipatory bail can be found in Section 438 of the Criminal Code of Procedure (CrPC)..The above reference has been made given the ambiguity remaining on the topic, despite the 1980 Constitution Bench judgment of the Supreme Court in Shri Gurbaksh Singh Sibbia and others v State of Punjab..In this case, the Court had held, inter alia, that,.“The normal rule should be not to limit the operation of the order [granting anticipatory bail] in relation to a period of time.”.This precedent was followed in Sidhraram Satlinhappa Mhetre v State of Maharashtra and others (2010). Mhetre’s case was recently relied on in Bhadresh Bipinbhai Sheth v State of Gujarat and another (2015)..However, in 1996, a three-judge bench of the Supreme Court took a different view in the case of Salauddin Abdulsamad Shaikh v State of Maharashtra..In Salauddin, the Court opined that to allow the anticipatory bail to continue indefinitely would be to bypass the regular court of trial. Therefore, the anticipatory bail should be of a limited duration only. The Court explained its conclusions as follows,.“…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 the 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.“.The Salauddin case was followed thereafter in a number of cases including KL Verma v State and another (1998), Nirmal Jeet Kaur v State of MP and another (2004), Sunita Devi v State of Bihar and another (2005) and Adri Dharan Das v State of WB (2005)..Whereas the KL Verma case had made an exception of sorts, to allow the accused a few days after the expiry of the anticipatory bail term to move a higher court, the Nirmal Jeet case held that such relaxation was also liable to be quashed for being in conflict with the statutory requirement under Section 439..However, the following pertinent observation of the Bench is worth noting,.“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.”.All the same, various later decisions also demonstrated that there were inconsistencies in the law regarding anticipatory bail. This is evident from certain other precedents quoted by the Supreme Court in its order..In the 2010 case of HDFC Bank Limited v JJ Mannan, reference was made to a contention based on Sibbia’s case. Nevertheless, it took the view that the protection under Section 438 is only till the investigation is completed and chargesheet is filed..In the 2018 case of Satpal Singh v The State of Punjab, it was held that the protection of an anticipatory bail under Section 438, CrPC “is available to the accused only till the court summons the accused based on the charge sheet (report under Section 173(2), CrPC).”.The Court also noted that there were observations made in the Sibbia case, which indicated that the anticipatory bail may be for a limited period. In particular, the following observation made therein was emphasized,.“Should the operation of an order passed under Section 438(1) be limited in point of time? Not necessarily. The court may, if there are reasons for doing so, limit the operation of the order to a short period until after the filing of an FIR in respect of the matter covered by the order…”.It was also noted that the Sibbia dealt primarily with anticipatory bail at the pre-FIR stage. The Court, therefore, opined that prima facie, the Constitution Bench in Sibbia (supra) has not laid down the law that once an anticipatory bail, it is an anticipatory bail forever..In this background, Amicus Curiae, Harin P Raval has also submitted that the matter needs consideration by a larger Bench, give the two conflicting schools of thought..“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.”.The Bench, therefore, directed the Registry to place the matter before the Chief Justice of India, so that it can be settled by a larger Bench..The Law Commission in its 268th report had also raised the issue of ambiguities in the law of anticipatory bail last year. In its report, the Commission had noted,.“While on the question of considering the duration of anticipatory bail, the law on this point remains highly divergent and ambiguous. It is pertinent to note that the Parliament has not prescribed any duration for an anticipatory bail. It is vague, as it does not mention whether the order should be limited in time or if it is transient in nature until regular bail is obtained.”.In order to remedy the same, the Commission had opined that, “apart from making the anticipatory bail operational for a limited time, there is need to grant anticipatory bail in certain offences with caution.”.Read Supreme Court Order: