Case Note & Summary
The present special leave petition arose from an order passed by the High Court in a criminal anticipatory bail matter. The petitioner, Salauddin Abdulsamad Shaikh, had filed Criminal Application No. 2230 of 1995 under Section 438 of the Code of Criminal Procedure, 1973 before the High Court. The High Court granted an ad-interim anticipatory bail order on 13.9.1995, which was to remain in force until 26.9.1995. The order imposed certain conditions, including that the petitioner report at the police station every day until 25.9.1995. The petitioner claimed to have complied with all conditions. When the matter came up for final disposal on 26.9.1995 before the same learned Judge, the High Court directed the petitioner to move a regular bail application before the court which was in seisin of the criminal case pending against him. The High Court further observed that the regular bail application should be disposed of uninfluenced by the observations made in the earlier order dated 13.9.1995. Aggrieved by this direction, the petitioner filed the special leave petition before the Supreme Court. The core legal issue before the Supreme Court was whether the High Court was justified in limiting the duration of anticipatory bail and directing the petitioner to approach the regular court for bail after the expiry of the ad-interim order. The petitioner's counsel submitted that since the Supreme Court had granted an interim order extending the duration of the anticipatory bail, the petitioner had not applied for bail before the regular court. The Supreme Court, speaking through a Bench of Chief Justice A.M. Ahmadi, Justice S.C. Sen, and Justice K.S. Paripoornan, dismissed the special leave petition. The Court observed that under Section 438 of the Code of Criminal Procedure, when any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, the High Court or Court of Session may direct that in the event of such arrest, he shall be released on bail. The Court emphasized that anticipatory bail is granted in anticipation of arrest in non-bailable cases, but that does not mean the regular court which is to try the offender is sought to be bypassed. The High Court rightly fixed the outer date for the continuance of the anticipatory bail and, on its expiry, directed the petitioner to move the regular court for bail. The Court explained that when the Court of Session or High Court grants anticipatory bail, it is at a stage when investigation is incomplete and the court is not informed about the nature of evidence against the alleged offender. Therefore, such anticipatory bail orders should be of limited duration only. 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 Court further noted that an order of anticipatory bail could even be obtained in cases of serious nature, such as murder, and therefore it is essential that the duration of that order be limited and that the court granting anticipatory bail should not substitute itself for the original court expected to deal with the offence. In the instant case, the High Court had followed the correct procedure, and the Supreme Court saw no reason to interfere. However, in view of the interim order passed by the Supreme Court extending the duration, the petitioner was granted liberty to apply for regular bail within two weeks from the date of the order. The petition was disposed of accordingly.
Headnote
A) Criminal Procedure - Anticipatory Bail - Limited Duration and Regular Bail - Code of Criminal Procedure, 1973, Section 438 - The Supreme Court considered whether an ad-interim anticipatory bail order under Section 438 of the Code of Criminal Procedure should be limited in duration and whether the High Court correctly directed the petitioner to move the regular court for bail after expiry of the order. The Court held that anticipatory bail is granted at a stage when investigation is incomplete and the court is not informed about the nature of evidence against the alleged offender; therefore, such orders should be of limited duration and ordinarily the court granting anticipatory bail should leave it to the regular court to deal with bail on appreciation of evidence after investigation has progressed or charge-sheet is submitted. The High Court followed the correct procedure, and the special leave petition was dismissed with liberty to the petitioner to apply for regular bail within two weeks. Held that anticipatory bail orders should not be indefinite and the regular court must decide bail on merits after investigation. (Paras 1-2)
Issue of Consideration
Whether an anticipatory bail order under Section 438 of the Code of Criminal Procedure should be limited in duration and whether the court granting anticipatory bail should direct the accused to approach the regular court after such expiry.
Final Decision
The Supreme Court dismissed the special leave petition, holding that the High Court followed the correct procedure in limiting the duration of anticipatory bail and directing the petitioner to move the regular court for bail. The petitioner was granted liberty to apply for regular bail within two weeks from the date of the order if he so desired.
Law Points
- Anticipatory bail under Section 438 CrPC should be of limited duration
- Court granting anticipatory bail should not substitute itself for regular court
- On expiry or extended duration
- regular court to deal with bail based on evidence after investigation or charge-sheet
- High Court's direction to move regular bail application is correct procedure
