Sushila Aggarwal and Ors. v. State (NCT of Delhi) and Anr., 2020 SCC Online SC 98


Applicant belongs to a reputed family and is pursuing B.A., L.L.B. Course in Aligarh Muslim University. His father is an Assistant Professor in the same University. Neither in the FIR nor in the statement of the witnesses recorded by the Investigating Officer any weapon has been assigned to him. He has been implicated only to spoil his life career. FIR was lodged against the applicant with regard to incident of the same date alleging that co-accused, Nabel, fired upon the informant on the instigation of applicant, but it did not hit the informant. The applicant filed Anticipatory Bail Application No. 29238 of 2019 which was allowed by this court vide order granting anticipatory bail to the applicant till the submission of police report under Section 173(2) Cr.P.C. Now charge sheet has been submitted and cognizance has been taken by C.J.M., Aligarh thereon vide in judgement. 


(1) Whether the protection granted to a person under Section 438 CrPC., 1973 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 an anticipatory bail should end at the time and stage when the accused is summoned by the court?


(i) Section 438 Cr. PC 

(ii) Section 437(3) read with Section 438(2) should be imposed; 

(iii) if there are specific facts or features in regard to any offence, it is open for the court to impose any appropriate condition (including fixed nature of relief, or its being tied to an event) etc.


The 5-judge bench of Justice Arun Mishra, Justice Indira Banerjee, Justice Vineet Saran, Justice MR Shah, and Justice Ravindra Bhat, they with one accord had ruled that the protection granted to a person under Section 438 CrP.C should not always be limited to a fixed period, it should inure in favour of the accused without any restriction on time.

The application seeking anticipatory bail should contain bare essential facts relating to the offence, and 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 was submitted by the 41st Law Commission of India, 1969 that the parliament needs to introduce a new law under Section 438 of the CrPC and the law commission justified it as anticipatory bail, hence it was challenged where no FIR is lodged, he can apply for anticipatory bail before the investigation has begun. 

All 5 judges gave a unanimous verdict by going through various other judgements of High Courts like in the case Siddharam Satlingappa Mhetre v. State of Maharashtra and Ors. (2011) 1 SCC 694, a very wide judgment was given on the scope and object of an anticipatory bail. The Court held that anticipatory bail granted by the court should ordinarily continue till the trial of the case.

In Gurbaksh Singh Sibbia v. State of Punjab (1980) 2 SCC 565, the application of Section 438 Code of Criminal Procedure had been considered in detail. The court submitted that the said provision had been interpreted to be a beneficent provision relating to personal liberty guaranteed under Section 21 of the Constitution. It was also observed that since denial of bail amounts to deprivation of personal liberty, the court should lean against the imposition of unnecessary restrictions on the scope of Section 438 Code of Criminal Procedure.

The 5-judge bench also observed here that the object of Section 438 Code of Criminal Procedure has been repeatedly explained by the Supreme Court and the High Courts to mean that a person should not be harassed or humiliated in order to satisfy the grudge or personal vendetta of the complainant; But it has also been indicated that no blanket order could be passed Under Section 438 Code of Criminal Procedure to prevent the Accused from being arrested at all in connection with the case.

Also, Justice Bhat wrote his opinion while giving judgement that:

“It would not be in the larger interests of society if the court, by judicial interpretation, limits the exercise of that power: The danger of such an exercise would be that in fractions, little by little, the discretion, advisedly kept wide, would shrink to a very narrow and unrecognizably tiny portion, thus frustrating the objective behind the provision, which has stood the test of time, these 46 years.” 


The decision given by the apex court was that it is not important that the petition can be filed only after an FIR is filed, it can even be moved earlier. The judgement was also given with reference to the anticipatory bail that it does not end normally at the time and stage when the accused is summoned by the court, or even when the charges are pressed but interestingly it continuous till the end. the provisions of Section 438 of Cr.P.C. should not be suspected as containing something sensitive, which needs to be handled with great care and caution. A wise exercise of judicial power inevitably takes care of the evil and dangerous consequences which are likely to come out as a result of the use of Section 438. Neither inflexible guidelines can be provided for grant or refusal of anticipatory bail nor should any attempt be made to provide such guidelines in this respect because all cases have different facts and circumstances and cannot be adjudicated upon using the same guidelines. In any event, this is the legislative mandate which the Courts are bound to respect and honour. In the case of Gurbaksh Singh Sibbia case, the guidelines regarding Interim bail and limitation on the operation of an anticipatory bail give the courts a free hand to make decisions according to their discretion and curtail generalisation of laws which frustrates the working of the criminal justice system.

The constitutional bench’s stance that the learned judges of High courts and Sessions courts are capable of making wise decisions owing to their vast experience in the field is logical and even if they make a decision which is violative of Article 21, it can be subjected to judicial review and revision. But the concept of Anticipatory bail is very different from a normal bail. The reason for ambiguity in this case is that the person applying for anticipatory bail is not in any kind of custody, be it state or private.  

 The trial except in special and rarest of rare case and it is important for any court to issue notice to public prosecutor to obtain facts when granted any kind of anticipatory bail or special and other restrictive conditions may be imposed if the case wants then it should always be imposed in a routine manner.  Anticipatory bail for a limited duration puts unnecessary fetters on the right to personal liberty guaranteed by the Constitution, and to make matters worse these are fetters which were never envisaged by the legislature.


Analyzed by Ms. Shristi Gupta, Intern (Dec’20 – Jan’21), Lexstructor

Reviewed by Lexstructor Legal Publication

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