Anticipatory bail could continue till end of trial, need not be limited to fixed period: SC

It said however that it is open for the court to limit its tenure in case of "special or peculiar features".

A five-judge constitution bench, headed by Justice Arun Mishra, said the anticipatory bail need not normally end when an accused is summoned by the court or charges are framed and could continue till the end of trial.

"...this court holds that the protection granted to a person under section 438 CrPC (which deals with direction for grant of bail to person apprehending arrest) should not invariably be limited to a fixed period; it should inure in favour of the accused without any restriction on time," said the bench, also comprising Justices Indira Banerjee, Vineet Saran, M R Shah and S Ravindra Bhat.

The bench said normal conditions stipulated under the CrPC provisions should be imposed on a person while granting him or her anticipatory bail and if there were specific facts or features in regard to any offence, it is open for the court to impose any appropriate condition.

"...it is held that 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," the bench said.

Justices Shah and Bhat wrote separate, concurring verdicts in the matter. The three other judges of the bench agreed with them.

In its 133-page verdict, the bench answered two questions referred to it -- whether protection of anticipatory bail granted to a person should be limited to a fixed period so as to enable him or her to surrender before the trial court and seek regular bail, and whether the life of anticipatory bail should end at the time and stage when accused is summoned by the court.

These questions were referred in view of conflicting verdicts of the apex court on this issue.

The bench laid down criteria for grant of anticipatory bail by all the courts in the country.

It said that application seeking anticipatory bail should be based on concrete facts relatable to one or other specific offence and should contain bare essential facts relating to the offence and also why the applicant reasonably apprehends arrest.

"These are essential for the court which should consider his application, to evaluate the threat or apprehension, its gravity or seriousness and the appropriateness of any condition that may have to be imposed," it said, adding the application should also contain the applicant's side of the story.

The bench said it is not essential that application for anticipatory bail should be moved only after an FIR is lodged and it can be filed earlier so long as the facts are clear and there is reasonable basis for apprehending arrest.

"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 notice to the public prosecutor and obtain facts, even while granting limited interim anticipatory bail," it said.

It said that while considering such application, the court has to consider several aspects including the nature of offence, role of the person, likelihood of his influencing the course of investigation or tampering with evidence and likelihood of fleeing justice.

The top court said that 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 the probe agency.

"Such special or other restrictive conditions may be imposed if the case or cases warrant, but should not be imposed in a routine manner, in all cases," it said.

"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," it said.

It said that anticipatory bail granted can, depending on the conduct and behavior of accused, continue after filing of charge sheet and till the end of trial.

"An order of anticipatory bail should not be 'blanket' in the sense that it should not enable the accused to commit further offences and claim relief of indefinite protection from arrest," it said, adding, "It cannot operate in respect of a future incident that involves commission of an offence."

The bench made it clear that order granting anticipatory bail does not in any manner limit or restrict the rights or duties of the investigating agency to probe into the charges against the person who is granted pre­-arrest bail.

The bench said it is open for the police or probe agency to move the concerned court seeking permission to arrest the accused in the event of violation of any condition imposed on him.

"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," it said.