Anticipatory bail should not be limited to a fixed period: SC

New Delhi: The Supreme Court on Wednesday ruled that anticipatory bail granted to an accused on apprehension or threat of arrest should not invariably be limited to a fixed period, as it is not in larger societal interest to limit the liberty of citizens, and it could continue till the end of trial.

A five-judge Constitution bench headed by Justice Arun Mishra and comprising Justices Indira Banerjee, Vineet Saran, M.R. Shah and S. Ravindra Bhat, however, observed that if the court wants to limit the bail, it can attach special features.

The top court observed that the protection granted to a person under Section 438 of CrPC (which deals with direction for grant of bail to a person apprehending arrest) should not invariably be limited to a fixed period. Instead, it should be in favour of the accused without time-barred condition.

“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,” the apex court said. Justices Shah and Bhat wrote separate, concurring verdicts in the matter, and the other three judges agreed with them.

The top court examined two crucial aspects in its verdict — should protection through an anticipatory bail be time-bound (which allows the individual to surrender and then seek regular bail) and what should be the span of the bail (would it end when accused is summoned to court). The court observed that bail application should have facts connected to the offence and factors contributing towards apprehension for arrest.

The court noted that application for anticipatory bail can be filed before the FIR, as long as the facts are clear and concrete factors form the basis for apprehending arrest.

The court said, “It may be advisable for the court, which is approached with an application under Section 438, depending on the seriousness of the threat (of arrest), to issue a notice to the public prosecutor and obtain facts, even while granting limited, interim anticipatory bail.”

The court noted that such special or other restrictive conditions may be imposed if the case or cases warrant them, but should not be imposed in a routine manner in all cases.

The bench said the police are free to move the court seeking permission to arrest the accused, if the conditions imposed were breached. The court concluded, “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.”