SC extends power to grant anticipatory bail till completion of trial Appellate or superior court also granted power to consider the correctness of the order granting anticipatory bail at the behest of the State or investigating agency

03, Feb 2020 | Preeti Anand

Judgement Primer: Anticipatory bail protection till end of trial

Sushila Aggarwal and others Vs. State (NCT of Delhi) and another

Supreme Court of India: Justice Arun Mishra, Justice Indira Banerjee, Justice Vineet Sharma, Justice MR Shah and Justice SR Bhat

Date of Judgement: January 29, 2020

Delivered by: Justice Justice Shah and Justice Bhat


The concept of anticipatory bail was introduced in CrPC by the 1973 amendment. The said provision can be invoked by a person who has a reasonable apprehension that he may be arrested for committing a non-bailable offence. The main purpose for incorporating Section 438 in CrPC was that the liberty of an individual should not be unnecessarily jeopardised. Right to life and personal liberty are one of the important fundamental rights guaranteed by the constitution and therefore, no person should be confined or detained in any manner unless he has been held guilty.

As quoted in Blackstone’s Dictionary “It is better that ten guilty person escape rather than one innocent life”.

In Savitri Agarwal V. State of Maharashtra(2009) SCC 325, the Supreme Court bench culled out the principle laid down in Gurbaksh Singh(supra) that while exercising the power under sub-section (1) of Section 438 of CrPC, the Court must be satisfied that the applicant invoking the provision has reasons to believe that he is likely to be arrested for committing non-bailable offence and such belief must be founded on reasonable grounds.

The Case and its Background:

In the light of conflicting views of judgement passed by different benches of the Supreme Court as regards time limit through which the anticipatory bail can be granted, the larger bench had to consider as to whether the protection granted to a person under Section 438 CR.P.C should be limited to a fixed period of time so as to enable the person to surrender before the Trial Court and seek regular bail and whether the life of an anticipatory bail should end at the time and stage when accused is summoned by the Court.

The Supreme Court has in its earlier judgements in 1980 i.e. Gurbaksh Singh Sibbia and others V. State of Punjab [(1980) 2 SCC 565] have ruled that the protection granted under Section 438 of CrPc should not be interpreted narrowly and the court is vested with complete discretion to direct the duration of the trail. In the case of Siddharam Satingappa Mhetre v. State of Maharashtra [(2011) 1 SCC 694], it was held that once an anticipatory bail is granted it subsists throughout the duration of the trail. In the case of HDFC Bank Limited v. J.J. Mannan [(2010) 1 SCC 679], Satpal Singh [Satpal Singh v. State of Punjab (2018) 4 SCC 303], the Court held that the purpose of Section 438 CrPc is for providing protection only during the process of investigation and the accused should seek regular bail upon submission of charge sheet against him. In the case of Uday Mohanlal Acharya V. State of Maharashtra [(2001) SCC 453], the court held that when the accused is found to be on bail at stage of committal proceedings, the Magistrate has the power to cancel the bail and commit him to custody. 

Arguments and Findings:

It is submitted that the Constitution Bench has in Gurbaksh Singh Sibbia refused to impose any limitations or conditions while considering the application for anticipatory bail and further submitted that the duration of anticipatory bail is not called in question. It is also submitted that as a general rule it is not required to limit the duration of anticipatory bail but it must in a given case keeping in view the facts and circumstances, limit the duration of the anticipatory bail.

The Bench considered the following questions in deciding the scope of anticipatory bail:

“(1) Whether the protection granted to a person under Section 438 Cr.P.C. 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.”

Final Outcome:

The Court held that the protection granted to a person under Section 438 Cr.Pc should not invariably be limited to fixed period of time and should be in the favour of the accused without any restrictions on time. The Court while answering the second issue held that the life or duration of anticipatory bail order does not end with 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 trial. It further added that if there are any special or peculiar features necessitating the Court to limit the tenure it is open to do so.

The Court has held that when an application under Section 438 is made it must issue notice to public prosecutor and obtain facts while granting limited interim anticipatory bail. The Court held that nothing in Section 438 of Cr.Pc compels or obliges the Court to impose conditions limiting relief in terms of time or upon filing of FIR or recording of statement of witness. The Court also held that the courts would be justified in imposing conditions spelt out in Section 437(3) while considering the application and the need to impose other restrictive conditions will depend on facts of the case but they should not be imposed on routine manner.

The granting or refusal of anticipatory bail is a matter of discretion of the Court and also the conditions to be imposed are discretion of the Court. It further held that Anticipatory bail can be continued after filing of charge sheet till the end of the trial. However, anticipatory bail should not be used as a blanket so as to enable the accused to commit further offences. The Court also laid down that the anticipatory bail does not in any manner restrict or limit the rights or duties of police or investigating agencies. It also laid down that it is open for the police or investigating agency under Section 439(2) to move to the court to arrest the accused in certain cases.

The Court also held that the correctness of order granting bail can be considered by appellate or superior authority. The Court overruled the judgements stating that no condition can be imposed while granting anticipatory bail.

Justice J Bhat offers an independent and concurring opinion that “an accused who is granted 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” He also stated that unless a contrary circumstances appear, the law does not require the person to surrender to court upon summons for trial being served on him. He also reiterated the observations in Sibbia case  stating the requirements of the investigating officer with regard to limited custody or deemed custody and it deems to fulfil the provisions of Section 27 of Evidence Act in case of recovery of an article which has been made during deemed custody.

Judicial Precedents:

The Court has while arriving at its conclusion relied on several judgements,

In Shri Gurbaksh Singh Sibbia and others V. State of Punjab[1], the Supreme Court held that

“when a person complains of apprehension of arrest and approaches for order, the application should be based on concrete facts (and not on vague or general allegation) relatable to one or other specific offence. The application seeking anticipatory bail should contain bare essential facts relating the offence and why the applicant reasonably apprehends arrest as well as his side of story. These are essential for the Court which should consider his application to evaluate threat or apprehension. It is not essential that an application should be moved only after filing an FIR is filed, it can be moved earlier so long as the facts are clear and there is a reasonable basis for apprehending arrest”

Prakash Kadam & etc etc V. Ramprasad Vishwanath Gupta and Anr[2] and Jai Prakash Singh(Supra)State through CBI V. Amarmani Tripathi[3]

“The correctness of order granting bail, can be considered by appellate or superior court at the behest of State or investigating agency and set aside on the ground that court granting it did not consider material facts or crucial circumstances”

Impact on Jurisprudence:

The Supreme Court has laid down an impactful precedent that the Courts cannot impose or oblige the anticipatory bail granted under section 438 of CrPc to be limited by any time period and it is at the sole discretion of judges to adjudge whether the person in question should be granted anticipatory bail on the gravity of the circumstances of the case enhancing the judicial autonomy of the Courts.

The case can be used as a judicial precedent by the lower courts for understanding the scope of anticipatory bail granted under section 438 of CrPc.

[1] 1980(2) SCC 565

[2] (2011) 6 SCC 189

[3] (2005) 8 SCC 21

The complete judgment by the Supreme Court may be read below.


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