On January 29, 2020, a five-member Constitution Bench of the Supreme Court unanimously held that the protection granted to a person under Section 438 of Criminal Procedure Code relating to anticipatory bail should not invariably be limited to a fixed period of time and should be in the favour of the accused without any restriction on time. The bench comprising Justice Arun Mishra, Justice Indira Banerjee, Justice Vineet Sharma, Justice MR Shah and Justice SR Bhat held that nothing contained in Section 438 of CrPC compels or obliges the Court to impose conditions limiting relief in terms of time or upon filing FIR or recording the statement of the witness.

The provision of anticipatory bail was introduced in the CrPC by the amendment of 1973. The Court held “The spectre of arbitrary and heavy-handed arrests, too often to harass and humiliate citizens and often times at the interest of powerful individuals led to enactment of Section 438”

The Court while answering as to whether the life of an anticipatory bail should be limited to a fixed stage when the accused is summoned by the Court held that the life or duration of anticipatory bail does not end with the time and stage when the accused is summoned by the Court of when the charges are framed but can continue till the end of the trail. However the Court added stating if there are any special or peculiar features necessitating the court to limit the tenure of anticipatory bail it is open to do so.

Justice Bhat in his independent and concurring opinion held that “an accused who is granted an anticipatory bail would continue to be at liberty when charge sheet is filed, the natural implication is that there is no occasion for a direction by the Court that he be arrested and further he had co-operated with the investigation”

The Court by overruling the earlier judgments that no conditions should be imposed while granting anticipatory bail held that the Courts would be justified to impose conditions specified in Section 437(3) of Criminal Procedure Court. The Court held as follows:

“The need to impose other restrictive conditions, would have to be judged on a case by case basis, and depending upon the materials produced by the State or investigating agency. Such special or restrictive conditions may be imposed if the case or cases warrant, but should not be imposed in a routine manner. Likewise, conditions which limit the grant of anticipatory bail may be granted, if they are required in the facts of any case or cases, however such limiting conditions may not be invariably imposed”

The Court has also given the power to the appellate or superior court to consider the correctness of the order granting anticipatory bail at the behest of the State or investigating agency.

In conclusion, Justice Bhat has opined that “It would be useful to remind oneself that rights which citizens cherish deeply are fundamental- it is not the restrictions that are fundamental. It would not be in the larger interests of the society if the court, by judicial interpretation, limits the exercise of its power, the danger of such exercise would be that in fractions, little by little, the discretion, advisedly kept wide, would shrink to a very narrow and unrecognizably tiny portion, thus frustrating the objective behind this provision, which has stood the test of time, these 46 years.”

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