On Wednesday, the Constitution Bench of the Supreme Court of India comprising of Justices Arun Mishra, Indira Banerjee, Vineet Saran, M.R. Shah and S. Ravindra Bhat, heard arguments pertaining to the case of Sushila Aggarwal & Ors. v. State (NCT of Delhi) & Anr. Vide Order dated 15.05.2018, a Bench of Justices Kurian Joseph, Mohan M. Shantanagoudar and Navin Sinha referred 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 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? These questions of law were taken up the Constitution Bench in today's hearing. While decisions in cases such as Shri Gurbaksh Singh Sibbia & Ors v. State of Punjab, Siddharam Satlingappa Mhetre v. State of Maharashtra and others, state that anticipatory bail should not be for a limited period of time, cases such as Salauddin Abdulsamad Shaikh v. State of Maharashtra call for the limited duration of the anticipatory bail.
Taking the aforementioned issues into account, Senior Advocate Harin P. Raval commenced the arguments by initially referring to the issues afflicting cancellation of bail. Mr. Raval stated that bail granted by a High Court cannot be cancelled by a Trial Court. He also submitted that in all cases, cancellation must go before the judges who had granted the bail in the first place; propriety demands that the same court hears it again. It is difficult for a Trial Court to cancel bail on the basis of fresh evidence in cases where the High Court has granted bail.
Mr. Raval also submitted three situations wherein cancellation of bail should be heard:
1. When the accused does not comply with the conditions;
2. When new material comes on record;
3. When the grant of bail was itself wrong. The Sibbia case lays down that limitations are a matter of discretion.
Senior Advocate K.V. Vishwanathan followed up the argument stating that pre-arrest bail is not different from anticipatory bail. As per him, the idea of an anticipatory bail is to avoid false arrest. The Sibbia case was a rejection of anticipatory bail. The onus should be on the prosecution to prove that bail should be cancelled.
In order to counter these arguments, ASG Vikramjit Banerjee submitted that if the anticipatory bail goes on till the end of the trial, some provisions which require the presence of the accused would become otiose, i.e. Sections 209 and 240 of CrPC. However, on reading these provisions, the argument was rejected by the Court.
The Solicitor-General then proceeded to stated that the only question which had to be considered was regarding the restriction of time; bail was discretionary – "Bail jurisdiction is essentially a discretionary jurisdiction". It was up to the Court's discretion to ascribe a time limit to the grant of a bail; a judgement or a statute could not state the same. If the time period expires, the accused still retains the right to apply for bail under Section 438 of the CrPC. He stated that Sibbia case was good law as it left the issue of limitation up to the discretion of the court by usage of the term "not necessarily".
Additionally, ASG Aman Lekhi submitted that the period of bail should not be limited. Section 438 was instituted in the context of anticipatory bail; it was brought in to counter the occasion of misuse of arrest. He agreed with the submissions of Sr. Adv. K.V. Vishwanathan, and stated that conditions which were imposed could be only done so in the aid of investigation. Therefore, if any limitation had to be prescribed, it would be admissible only if it was necessary for the aid of investigation.
On conclusion of these arguments, the Bench asked for written submissions on behalf of the Senior Advocates and reserved judgement on the matter.