Case Summary


To get daily updates, Join Team Attorneylex’s WhatsApp group

Also, check us out on Instagram and Twitter

This Case Summary is written by Shreya Sanjay Kumar Pandey, a student at Law College, Dehradun


Anticipatory bail is a common recited word by the law “known” whenever they heard about the term arrest. This common word is not defined in the Criminal Procedure Code, 1973 which throws glimpses upon its procedure. Section 438 of the code gives power to the High Court and Session Court to grant bail to the person who has apprehension of getting arrested for a non-bailable offense. The code leaves the question blank regarding the time period of the anticipatory bail upon the discretion of courts. This became a major loophole in the provision. Some court grants bail till the person is summoned and others till the trial. Supreme Court tried to resolve the matter which later on leads to controversies due to conflicting judgments. This case again tried to do the same through the Constitutional bench.


The provision of Anticipatory Bail was added in the CrPC through the amendment of 1973. Law Commission 41st Report (1969) recommended introducing a new provision as Section 438. This section states that –

“Where a person believes that he might get arrested for any non-bailable offense, he has the to apply for bail before a High Court or a Session Court. The court may grant bail which will curb his arrest”.

The following conditions shall be directed by the High Court and the Session Court to the person who is granted bail under sub-section (1):

  1. Person shall present himself for interrogation by the police officer whenever it will require;
  2. Person shall not induce, give threat or promise to any person who has knowledge of facts of the case in such a way that it will restrict him to disclose them;
  3. Person will not allow to leave India without prior permission of the court;
  4. All other conditions which may be imposed upon him under Section 437(3), as if the court had granted bail under that section.

Since its incorporation, it attracts the question regarding the time up to which anticipatory bail may be granted. In Gurbaksh Singh Sibia v. State of Punjab (1980), Supreme Court had reiterated that Section-438 shall be interpreted in the light of Article 21. Anticipatory Bail shall be granted as a matter of right of an individual and “it cannot be restricted by the time”. This judgment gave power to courts to impose appropriate restraints in accordance with different cases.

However, Supreme Court overruled its previous judgment and pen down that “granting of Anticipatory Bail should be restricted by the time” in Salauddin Abdulsamad Shaikh v. State of Maharastra (1995). Controversies continued and hence confusion also. Henry Miller had rightly said, “Confusion is a word we have invented for an order which is not understood”. In 2010, Apex Court again sit for the same question and overruled its previous judgment by restoring the words of Gurbaksh Singh’s case. It held that the “life duration of an order granting Anticipatory Bail cannot be curtailed” (Siddharam Satlingappa Mhetre v. State of Maharastra [2010]). 

There were conflicting statements by the different quorum of the apex court. This required immediate settlement.


The case arises from Delhi High Court judgment in Neetu Aggarwal v. State (2017) granting Bail to the Petitioner who is step-mother of the Sushila Aggarwal (complainant). The case was registered against Neetu Aggarwal, her male friend, and his father for sexual harassment and use of force to disrobe the complainant and her sister for rape. Delhi High Court granted bail to Neetu Aggarwal under Section 438 of CrPC after furnishing a personal bond of Rs. 50,000 along with a surety. Public Prosecutor asked the District Court to end the bail as summoned was issued to the Petitioner for the trial. He stated that such summon culminate the life of bail granted under Section 438 of CrPC.

Present Sushila Aggarwal’s Case was a result of a Special Leave Petition filed before the Supreme Court of India against the judgement of Delhi High Court. In this Supreme Court take the matter suo moto to settle the conflicting views which have been arises from their previous judgements.


Supreme Court mainly framed two issues which were more or less one question divided into two parts.-

  1. Whether protection granted to a person under Section 438 CrPC should be limited to a fixed period to enable the person to surrender before the Trial Court and seek regular bail?
  2. Whether the life of anticipatory bail should end at the time and stage when the accused is summoned by the Court?


Learned Senior Advocate Shri Harin P. Raval appeared as Amicus Curiae referred to the judgment of apex court in Balchand Jain v. State o M.P. (1976) and submitted that though code didn’t define the expression “anticipatory bail” but it refers to the “bail-in anticipation of arrest” as observed by the apex court. He stated that in Gurbaksh Singh’s case, the constitution bench observed that there is no time limit for anticipatory bail. It is the absolute discretion of the court to direct the duration of trial which may vary from some weeks to even filing of charge sheet or even till the end of a trial. Anticipatory Bail is granted solely considering the view to balance the interest of parties. Bail safeguards the liberty of an accused.

High Court and Session Court have absolute power to grant the anticipatory bail but legislature may curtail this power. The duration of such bail may be curtailed for fair investigation or for relevant discoveries to be made under Section 27 of the Indian Evidence Act, 1872. He stated Law Commission 41st Report provides the provision of anticipatory bail so that no person tries to link their rivals in a false case.

Learned Senior Advocate Shri K.V. Vishwanathan appeared to assist Amicus Curiae. He presented that bail granted before arrest under Section 438 of CrPC is similar to bail granted under Section 437 and 439 of CrPC. There is no power provided to the courts to pass such an order in a time-bound manner. The Court may order to arrest the person if the investigation agency approaches the court under Section 439(2).

Learned Solicitor General of India Shri Tushar Mehta submitted that courts have the power to restrict the time period of the anticipatory bail after giving a justified reason. It is additionally submitted that the life of such bail should terminate at the time and stage when the person is summoned by the Court.


The constitutional bench under the authorship of Justice Arun Mishra held that there is “no time limit for any Anticipatory Bail” which is granted by the court. It is not bound by the fixed time period but if the court finds it necessary they are free to do so.


Constitution of India provides the Right to Life and Personal Liberty under Article 21 to every person irrespective of the case whether he is accused or not. Through Law Commission 41st Report (1969) the purview of fundamental rights was extended and the provision of anticipatory bail was added in the Code of Criminal Procedure, 1973. In-State of Rajasthan v. Balchand (1978) Supreme Court quoted that “Bail is a rule, jail is an exception”. 

Being a guardian to safeguard the rights of citizens, it becomes obligatory for Supreme Court to protect the accused from getting harass. There were many conflicting views of the apex court concerning the time limit of Anticipatory Bail. This gave the absolute power to the inferior courts to act according to their discretion. A person is presumed to be innocent unless he is proved guilty. This case will settle the controversies and limit the authoritarian behavior against the person unless he is proved guilty.


The matter is disposed of by the Constitutional Bench of the Hon’ble Supreme Court of India by observing that Anticipatory Bail should not be granted for a fixed time period.


Indian laws favour not only the victim but also the accused. Thousand accused may be released but no innocent shall be imprisoned. Delhi Commission of Women (DCW) reported that after the Nirbhaya case from April 2013 to July 2014, out of 2753 rape complaints 1464 found to be false. It became evidentiary from the followed norms to protect the sufferers. Anticipatory Bail act like a sword in the hand of those who are likely to be tortured by the laws which are enacted to protect the victims. However, the provisions are not clear about the time up to which it may be granted. Supreme Court tried to resolve the issue from time to time but none of them acts as a precedent to be followed strictly.

Recently, in Prithviraj Chauhan v. Union of India (2020) Supreme Court held that provisions of Anticipatory Bail shall not apply to the cases under Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.  The matter is settled after a lot of controversies regarding the false registration of cases.

In Sushila Aggarwal’s case, Supreme Court through a five-judge bench resolved the issue of anticipatory bail finally. But, can we say that the matter is finally settled? What if the matter is reviewed or challenged and leads to sitting on a larger bench to decide it.


Anticipatory Bail was enacted by the legislature to settle down the critical socio-legal norms. Though provision is barred in states like Uttar Pradesh, it still helps to counter false presumptions. The case Sushila Aggarwal v. State of NCT of Delhi (2020) was taken up in the light of contradictory interpretations of the different Benches of varying strength. The constitutional bench overruled the judgments binding Anticipatory Bail to a fixed time period. Anticipatory Bail is a magical boon that is required to be utilized carefully and this will be done only after there is a proper framework. However, the pronouncement is a mirage in the court of records. It is a settled principle unless tried by the higher bench. It requires interference by the legislature through amendment in Section 438 of Code of Criminal Procedure, 1973. Bail should not become a tool to punish the person rather it must be a sword to protect him.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s