Holding

Anticipatory bail under Section 438 should not ordinarily be limited to a fixed period and may continue till the end of trial unless the court, on justified grounds, imposes a specific limitation; the bail does not automatically terminate upon summons or charge‑framing.

Summary

The Supreme Court examined two questions referred to a larger bench: whether an order of anticipatory bail under Section 438 of the Criminal Procedure Code (CrPC) must be limited to a fixed period, and whether such bail terminates when the accused is summoned or when charges are framed. Relying on the Constitution Bench decision in Gurbaksh Singh Sibbia and subsequent jurisprudence, the Court held that anticipatory bail should not ordinarily be time‑bound; it may be limited only in exceptional circumstances where the facts justify it. The Court further held that the life of an anticipatory bail order does not automatically end at the stage of summons or charge‑framing and can continue until the trial concludes, unless the court imposes a specific limitation. Earlier decisions that imposed rigid time limits, such as Salauddin Abdulsamad Shaikh and Siddharam Satlingappa Mhetre, were overruled. The judgment also laid down guiding principles for courts when granting anticipatory bail, emphasizing the need for concrete facts, appropriate conditions, and a balance between personal liberty and investigative requirements.

Issues considered

Whether protection granted under Section 438 CrPC should be limited to a fixed period to enable surrender before the trial court.
Whether the life of an anticipatory bail order ends when the accused is summoned by the court or when charges are framed.

Legislation cited

Code of Criminal Procedure, 1973s. 167(2), s. 437, s. 438, s. 439, s. 441
Constitution of Indias. Article 21
Criminal Procedure Code (Amendment) Act, 2005
Criminal Procedure Code Amendment Act, 2018
Indian Evidence Act, 1872s. 27
Indian Penal Code, 1860s. 376(3), s. 376AB, s. 376DA, s. 376DB

Subjects

anticipatory bailSection 438Criminal Procedure Codefixed periodlife of bailpersonal libertyArticle 21discretionary powerSupreme Courtbail conditions

Judgment

[2020] 2 S.C.R. 1 1

SUSHILA AGGARWAL AND OTHERS A
v.
STATE (NCT OF DELHI) AND ANOTHER
(Special Leave Petition (Criminal) Nos. 7281-7282 of 2017)
JANUARY 29, 2020 B
[ARUN MISHRA, INDIRA BANERJEE, VINEET SARAN,
M. R. SHAH AND S. RAVINDRA BHAT, JJ.]
Code of Criminal Procedure, 1973 – ss.437, 438, 439 and
167(2) – Order u/s.438 granting anticipatory bail – Life and
C
operation of – Conflicting views of different Benches of varying
strength as to whether the protection granted u/s.438 should be
limited to a fixed period so as to enable the person to surrender
before Trial Court and seek regular bail; whether the life of an
anticipatory bail should end at the time and stage when the accused
is summoned by the court – Reference to larger Bench – Held: (Per D
Curiam) Protection granted u/s.438 should not invariably be limited
to a fixed period; it should inure in favour of the accused without
any restriction on time – Normal conditions u/s.437(3) r/w s.438(2)
should be imposed; if there are specific facts or features in regard
to any offence, it is open for the court to impose any appropriate
E
condition (including fixed nature of relief, or its being tied to an
event) etc. – Further, 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 F
anticipatory bail, it is open for it to do so – Observations in Siddharam
Satlingappa Mhetre case (and other similar judgments) that no
restrictive conditions at all can be imposed, while granting
anticipatory bail are overruled – Likewise, the decision in Salauddin
Abdulsamad Shaikh case and subsequent decisions which lay down
G
such restrictive conditions, or terms limiting the grant of anticipatory
bail, to a period of time are overruled – Guiding principles
enumerated for Courts to follow while dealing with applications
u/s.438 – Criminal Procedure Code (Amendment) Act, 2005 – Code
of Criminal Procedure Amendment Act, 2018 – Penal Code, 1860 –
H
1
2 SUPREME COURT REPORTS [2020] 2 S.C.R.

A ss.376(3), 376AB, 376DA, 376DB – Constitution of India – Art.21
– Evidence Act, 1872 – s.27 – Interpretation of Statutes.
Answering the referred questions, the Court
HELD: 1.1 PER M. R. SHAH, J.
B The expression “anticipatory bail” has not been defined in
the Code. As observed by Supreme Court in the case of Balchand
Jain, “anticipatory bail” means “bail in anticipation of arrest”.
As held, the expression “anticipatory bail” is a misnomer
inasmuch as it is not as if bail is presently granted by the Court in
anticipation of arrest. An application for “anticipatory bail” in
C anticipation of arrest could be moved by the accused at a stage
before an FIR is filed or at a stage when FIR is registered but
the charge sheet has not been filed and the investigation is in
progress or at a stage after the investigation is concluded. Power
to grant “anticipatory bail” under Section 438 of the Cr.P.C. vests
D only with the Court of Sessions or the High Court. Therefore,
ultimately it is for the concerned court to consider the application
for “anticipatory bail” and while granting the “anticipatory bail”
it is ultimately for the concerned court to impose conditions
including the limited period of “anticipatory bail”, depends upon
the stages at which the application for anticipatory bail is moved.
E A person in whose favour a pre-arrest bail order is made under
Section 438 of the Cr.P.C. has to be arrested. However, once
there is an order of pre-arrest bail/anticipatory bail, as and when
he is arrested he has to be released on bail. Otherwise, there is
no distinction or difference between the pre-arrest bail order
F under Section 438 and the bail order under Section 437 & 439 of
the Cr.P.C. The only difference between the pre-arrest bail order
under Section 438 and the bail order under Sections 437 and 439
is the stages at which the bail order is passed. The bail order
under Section 438 of the Cr.P.C. is prior to his arrest and in
anticipation of his arrest and the order of bail under Sections 437
G and 439 is after a person is arrested. A bare reading of Section
438 of the Cr.P.C. shows that there is nothing in the language of
the Section which goes to show that the pre-arrest bail granted
under Section 438 has to be time bound. The position is the same
as in Section 437 and Section 439 of the Cr.P.C. [Para 7.1][33E-
H H, 34A-D]
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 3

1.2 Considering the decision of the Constitution Bench of A
Supreme Court in the case of Gurbaksh Singh Sibbia and the
relevant observations, the decision of this Court in the case of
Siddharam Satlingappa Mhetre to the extent it takes the view
that the life of the order under Section 438 Cr.P.C. cannot be
curtailed is not a correct law in light of the observations made by
B
the Constitution Bench in paragraphs 42 and 43 in Gurbaksh Singh
Sibbia. The decision of Supreme Court in the case of Salauddin
Abdulsamad Shaikh which takes an extreme view that the order
of “anticipatory bail” has to be necessarily limited in time frame
is also not a good law and is against and just contrary to the
decision in the case of Gurbaksh Singh Sibbia, which is a C
Constitution Bench judgment. [Para 7.4]
1.3 Thus, considering the observations made by the
Constitution Bench of Supreme Court in the case of Gurbaksh
Singh Sibbia, the court may, if there are reasons for doing so,
limit the operation of the order to a short period only after filing D
of an FIR in respect of the matter covered by order and the
applicant may in such case be directed to obtain an order of bail
under Sections 437 or 439 of the Code within a reasonable short
period after the filing of the FIR. The Constitution Bench further
observed that the same need not be followed as an invariable
rule. It is further observed and held that normal rule should be E
not to limit the operation of the order in relation to a period of
time. The conditions can be imposed by the concerned court while
granting pre-arrest bail order8787 including limiting the operation
of the order in relation to a period of time if the circumstances so
warrant, more particularly the stage at which the “anticipatory F
bail” application is moved, namely, whether the same is at the
stage before the FIR is filed or at the stage when the FIR is filed
and the investigation is in progress or at the stage when the
investigation is complete and the charge sheet is filed. However,
the normal rule should be not to limit the order in relation to a
period of time. [Para 7.5][49D-H] G

Shri Gurbaksh Singh Sibbia and others v. State of
Punjab (1980) 2 SCC 565 : [1980] 3 SCR 383 – relied
on.

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4 SUPREME COURT REPORTS [2020] 2 S.C.R.

A Siddharam Satlingappa Mhetre v. State of Maharashtra
(2011) 1 SCC 694 : [2010] 15 SCR 201 – held not
correct law.
Salauddin Abdulsamad Shaikh v. State of Maharashtra
(1996) 1 SCC 667 : [1995] 6 Suppl. SCR 556 – held
B not good law.
Bhadresh Bipinbhai Sheth v. State of Gujarat (2016) 1
SCC 152 : [2015] 10 SCR 398; K.L. Verma v. State and
another (1998) 9 SCC 348; Sunita Devi v. State of Bihar
(2005) 1 SCC 608 : [2004] 6 Suppl. SCR 707; Nirmal
C Jeet Kaur v. State of M.P. (2004) 7 SCC 558 : [2004] 3
Suppl. SCR 1006; HDFC Bank Limited v. J.J. Mannan
(2010) 1 SCC 679 : [2009] 16 SCR 590; Satpal Singh
v. State of Punjab (2018) 4 SCC 303 : [2018] 3 SCR
739; Balchand Jain v. State of M.P. (1976) 4 SCC 572
: [1977] 2 SCR 52; Joginder Kumar v. State of U.P.
D (1994) 4 SCC 260; Lalitha Kumari v. State of U.P.
(2014) 2 SCC 1 : [2013] 14 SCR 713; Arnesh Kumar
v. State of Bihar (2014) 8 SCC 273 : [2014] 8 SCR
128; M.C. Abraham v. State of Maharashtra (2003) 2
SCC 649 : [2002] 5 Suppl. SCR 677 ; Uday Mohanlal
E Acharya v. State of Maharashtra (2001) 5 SCC 453 :
[2001] 2 SCR 878 – referred to.
41st Report of the Law Commission of India – referred to.
PER S. RAVINDRA BHAT, J. [CONCURRING]

F 2.1 Bail ipso facto has not been defined under the Code. It
is now widely recognized as a norm which includes the governing
principles enabling the setting of accused person on liberty
subject to safeguards, required to make sure that he is present
whenever needed. The justification for bail (to one accused of
commission or committing a crime is that it preserves a person
G who is under cloud of having transgressed law but not convicted
for it, from the rigors of a detention. Section 438 of the Cr.PC
provides for the issuance of directions for the grant of bail to a
person apprehending arrest. The Cr.PC of 1973 replaced the old
code of 1898. The old code did not provide for any corresponding
provision to Section 438 of the code of 1973. Under the old code,
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SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 5

there was a sharp difference of opinion amongst the various High A
Courts on the question as to whether courts had the inherent
power to pass an order of bail in anticipation of arrest. The
predominant position was that courts did not have such a power.
Subsequently, the need for various amendments to make the code
more comprehensive resulted in the enactment of the Code of
B
Criminal Procedure in 1973. Section 438 does not expressly use
the term “anticipatory bail”; its language instead empowers the
concerned to court to issue directions for grant of bail.
[Paras 39, 40][94H], [95A-D]
2.2 The term ‘anticipatory bail’ finds no place in the Cr.PC
itself but was used by the Law Commission of India in its 41st C
Report. The term was used to convey that it was an application
for bail in anticipation of arrest, i.e., before the arrest itself is
made. The pre-dominant thinking of the larger, Constitution
Bench, in Sibbia, was that given the premium and the value that
the Constitution and Article 21 placed on liberty- and given that D
a tendency was noticed, of harassment – at times by unwarranted
arrests, the provision for anticipatory bail was made. It was not
hedged with any conditions or limitations- either as to its duration,
or as to the kind of alleged offences that an applicant was accused
of having committed. The courts had the discretion to impose
such limitations (like co-operation with investigation, not E
tampering with evidence, not leaving the country etc) as were
reasonable and necessary in the peculiar circumstances of a given
case. However, there was no invariable or inflexible rule that the
applicant had to make out a special case, or that the relief was to
be of limited duration, in a point of time, or was unavailable for F
any particular class of offences. [Paras 42,46][95G, 99G-H,
100A-C]
2.3 Some judgments, notably Ram Kishna Balothia & Anr.
and Jai Prakash Singh v State of Bihar held that the provision for
anticipatory bail is not an essential ingredient of Article 21, G
particularly in the context of imposition of limitations on the
discretion of the courts while granting anticipatory bail, either
limiting the relief in point of time, or some other restriction in
respect of the nature of the offence, or the happening of an event.
Such observations are contrary to the broad terms of the power
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6 SUPREME COURT REPORTS [2020] 2 S.C.R.

A declared by the Constitution Bench of this court in Sibbia. The
larger bench had specifically held that an “over-generous infusion
of constraints and conditions which are not to be found in Section
438 can make its provisions constitutionally vulnerable since the
right to personal freedom cannot be made to depend on compliance
with unreasonable restrictions.” The reason for enactment of
B
Section 438 in the Code was Parliamentary acceptance of the
crucial underpinning of personal liberty in a free and democratic
country. Parliament wished to foster respect for personal liberty
and accord primacy to a fundamental tenet of criminal
jurisprudence, that everyone is presumed to be innocent till he
C or she is found guilty. Life and liberty are the cherished attributes
of every individual. The urge for freedom is natural to each human
being. Section 438 is a procedural provision concerned with the
personal liberty of each individual, who is entitled to the benefit
of the presumption of innocence. As denial of bail amounts to
deprivation of personal liberty, the court should lean against the
D
imposition of unnecessary restrictions on the scope of Section
438, especially when not imposed by the legislature. The
interpretation of Section 438- that it does not encapsulate Article
21, is erroneous. This court is of the opinion that the issue is not
whether Section 438 is an intrinsic element of Article 21: it is
E rather whether that provision is part of fair procedure. As to that,
there can be no doubt that the provision for anticipatory bail is
pro-liberty and enables one anticipating arrest, a facility of
approaching the court for a direction that he or she not be
arrested; it was specifically enacted as a measure of protection
against arbitrary arrests and humiliation by the police, which
F
Parliament itself recognized as a widespread malaise on the part
of the police. [Paras 47, 49 and 50][100C-F, 101B-D, E-G]
2.4 A fuller consideration of the various decisions cited
earlier, especially those which emphasized the need to limit the
life of an order of anticipatory bail, are premised on the
G understanding that the grant of an unconditional order of bail would
thwart investigation. In the first place, this premise is unfounded,
given that Sibbia stated that such an order would be “contrary to
the terms” of Section 438; and furthermore, that conditions
mentioned in Section 438(2) could be imposed while granting
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SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 7

anticipatory bail. The requirement of imposing conditions is not A
compulsive (noticing the use of the term “may” which precedes
the requirement of imposing conditions). Nevertheless, an
unconditional order, in the sense of an order not even imposing
conditions mentioned in Section 438(2) can impede or hamper
investigation, Sibbia held that the conditions mentioned in that
B
provision should be imposed. This requirement is more a matter
of prudence, while granting relief. The Law Commission’s 41st
and 48th report focused on the need to introduce the provision
(for anticipatory bail) as a preventive, or curative measure, to
deal with a particular problem, i.e. unwarranted arrests. Sibbia
noticed this fact, and also that significantly, Section 438 is not C
hedged with any obligation on the court’s power, to impose
conditions. That situation remains unchanged: the provision
remains unaltered-at least substantially (barring an amendment
in 2005 which obliged the issuance of notice to the public
prosecutor before issuing any order for anticipatory bail). The
D
203rd Report of the Law Commission, which reviewed the entire
law on the subject and noticed later decisions, such as Salauddin,
Adari Narain Das, etc, recommended no change in law on this
aspect relating to conditions. In this background, it is important
to notice that the only bar, or restriction, imposed by Parliament
upon the exercise of the power (to grant anticipatory bail) is by E
way of a positive restriction, i.e. in the case where accused are
alleged to have committed offences punishable under Section
376(3) or Section 376AB or Section 376DA or Section 376DB of
the Indian Penal Code. In other words, Parliament has now denied
jurisdiction of the courts (i.e. Court of Session and High Courts)
F
from granting anticipatory bail to those accused of such offences.
The amendment (Code of Criminal Procedure Amendment Act,
2018) introduced Section 438(4). Clearly, therefore, where the
Parliament wished to exclude or restrict the power of courts,
under Seciton 438 of the Code, it did so in categorical terms.
Parliament’s omission to restrict the right of citizens, accused of G
other offences from the right to seek anticipatory bail, necessarily
leads one to assume that neither a blanket restriction can be
read into by this court, nor can inflexible guidelines in the exercise
of discretion, be insisted upon- that would amount to judicial
legislation. [Paras 54-56][105B-D, 106A-D, 107-A-B-C]
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8 SUPREME COURT REPORTS [2020] 2 S.C.R.

A 2.5 The imposition of conditions under Section 438(2) with
reference to Section 437(3) is enough safeguard for the
authorities – including the police and other investigating agencies,
who have to investigate into crimes and the possible complicity
of the applicants who seek such relief. Taking each concern, i.e.
the addition of more serious offences; presence of a large number
B
of individuals or complainants; possibility of non-cooperation -
non-cooperation in the investigation or the requirement of the
accused’s statement to aid the recovery of articles and
incriminating articles in the course of statements made during
investigations – it is noticeable, significantly, that each of these
C is contemplated as a condition and is invariably included in every
order granting anticipatory bail. In the event of violation or
alleged violation of these, the concerned authority is not
remediless; recourse can be had to Section 438(2) read with
Section 437(3). Any violation of these terms would attract a
direction to arrest him. This power or direction to arrest is found
D
in Section 437(5). However, that provision has no textual
application to regular bail granted by the Court of Sessions or
High Courts under Section 439 or directions not to arrest, i.e.
order of anticipatory bail under Section 438. Secondly, Section
439(2) which is cast in wide terms, adequately covers situations
E when an accused does not cooperate during the investigation or
threatens to, or intimidates witness[es] or tries to tamper with
other evidence. There is nothing in the provisions of Section
438 which suggests that Parliament intended to restrict its
operation, either as regards the time period, or in terms of the
nature of the offences in respect of which, an applicant had to be
F
denied bail, or which special considerations were to apply.
[Paras 61, 62][109-D-H, 110A]
2.6 For the above reasons, the answer to the first question
in the reference made to this bench is that there is no offence,
per se, which stands excluded from the purview of Section 438 -
G
except the offences mentioned in Section 438 (4). In other words,
anticipatory bail can be granted, having regard to all the
circumstances, in respect of all offences. At the same time, if
there are indications in any special law or statute, which exclude
relief under Section 438 (1) they would have to be duly considered.
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SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 9

There can be no inflexible time frame for which an order of A
anticipatory bail can continue. [Para 68][115G-H, 116A, B-C]
Re Question No. 2: Whether the life of an anticipatory bail
should end at the time and stage when the accused is summoned by
the court.
B
2.7 The observations about the width and amplitude of the
power under Section 438, made in answer to the first question,
are equally relevant here too. In the present context, further,
the judgment and observations of this Court in its interpretation
of Section 167(2) are telling. It was held in Gursharan Singh, the
release by grant of bail of an accused under Section 167(2) C
amounts to “deemed bail”. This is borne out by Section 167(2)
which states that anyone released on bail under its provision
“shall be deemed to be so released under the provisions of Chapter
XXXIII for the purposes of that Chapter.” The judgment in Aslam
Babalal Desai clarified that when an accused is released by D
operation of Section 167(2) and subsequently, a charge-sheet is
filed, there is no question of the cancellation of his bail. In these
circumstances, the mere fact that an accused is given relief under
Section 438 at one stage, per se does not mean that upon the
filing of a charge-sheet, he is necessarily to surrender or/and
apply for regular bail. The analogy to ‘deemed bail’ under Section E
167(2) with anticipatory bail leads this court to conclude that the
mere subsequent event of the filing of a charge-sheet cannot
compel the accused to surrender and seek regular bail. As a
matter of fact, interestingly, if indeed, a charge-sheet is filed where
the accused is on anticipatory bail, the normal implication would F
be that there was no occasion for the investigating agency or the
police to require his custody, because there would have been
nothing in his behavior requiring such a step. In other words, an
accused, who is granted anticipatory bail would continue to be at
liberty when the charge sheet is filed, the natural implication is
G
that there is no occasion for a direction by the Court that he be
arrested and further that he had cooperated with the investigation.
At the same time, however, at any time during the investigation
were any occasion to arise calling for intervention of the court
for infraction of any of the conditions imposed under Section 437(3)
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10 SUPREME COURT REPORTS [2020] 2 S.C.R.

A read with Section 438(2) or the violation of any other condition
imposed in the given facts of a case, recourse can always be had
under Section 439(2). [Para 70][117D-H, 118A-C]
2.8 Section 438 (3) states that when a person is granted
anticipatory bail, is later arrested without warrant by an officer in
B charge of a police station “on such accusation”, and is willing to
give bail, “he shall be released on bail; and if a Magistrate taking
cognizance of such offence decides that a warrant should issue in
the first instance against that person he shall issue a bailable warrant
in conformity with the direction of the Court under sub-section (1)”.
The order granting anticipatory bail, is also- as noticed earlier,
C
and in several previous decisions, a “direction” under this Section
438 “that in the event of such arrest” the applicant be released on
bail. Therefore, when an accused in fact is granted bail, and the
conditions outlined in Section 438 (2) are included as part of the
direction “to release” him in the event of arrest, all the necessary
D conditions which he is obliged to follow exist. Section 438 (3)
outlines the steps to be taken, in the event of arrest of one who
has been granted relief under Section 438 (1). In the event of non-
compliance with any or all conditions, imposed by the court, the
concerned agency or the police, a direction can be sought from
the court under Section 439 (2). [Para 71][118C-F]
E
2.9 Unless circumstances to the contrary: in the form of
behaviour of the accused suggestive of his fleeing from justice,
or evading the authority or jurisdiction of the court, or his
intimidating witnesses, or trying to intimidate them, or violate
any condition imposed while granting anticipatory bail, the law
F does not require the person to surrender to the court upon
summons for trial being served on him. Subject to compliance
with the conditions imposed, the anticipatory bail given to a
person, can continue till end of the trial. [Para 76][123F-G, 124A]
2.10 Answers to the reference:
G
(1) Question No.1- The protection granted under Section
438 Cr.PC should not always or ordinarily be limited to a fixed
period; it should inure in favour of the accused without any
restriction as to time. Usual or standard conditions under Section

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SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 11

437 (3) read with Section 438 (2) should be imposed; if there are A
peculiar features in regard to any crime or offence (such as
seriousness or gravity etc.), it is open to the court to impose any
appropriate condition (including fixed nature of relief, or its being
tied to an event or time bound) etc.
(2) Question No. 2- The life of an anticipatory bail does not B
end generally at the time and stage when the accused is summoned
by the court, or after framing charges, but can also continue till
the end of the trial. However, 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. [Para 77][124B-C, D-E]
C
2.11 In conclusion, it would be useful to remind oneself
that the rights which the citizens cherish deeply, are fundamental-
it is not the restrictions that are fundamental. Joseph Story, the
great jurist and US Supreme Court judge, remarked that “personal
security and private property rest entirely upon the wisdom, the
stability, and the integrity of the courts of justice.” The history of D
our republic – and indeed, the freedom movement has shown
how the likelihood of arbitrary arrest and indefinite detention
and the lack of safeguards played an important role in rallying
the people to demand independence.
Witness the Rowlatt Act, the nationwide protests against E
it, the Jallianwalla Bagh massacre and several other incidents,
where the general public were exercising their right to protest
but were brutally suppressed and eventually jailed for long. The
specter of arbitrary and heavy-handed arrests: too often, to harass
and humiliate citizens, and oftentimes, at the interest of powerful F
individuals (and not to further any meaningful investigation into
offences) led to the enactment of Section 438. Despite several
Law commission reports and recommendations of several
committees and commissions, arbitrary and groundless arrests
continue as a pervasive phenomenon. Parliament has not thought
it appropriate to curtail the power or discretion of the courts, in G
granting pre-arrest or anticipatory bail, especially regarding the
duration, or till charge sheet is filed, or in serious crimes.
Therefore, it would not be in the larger interests of society if the
court, by judicial interpretation, limits the exercise of that power:
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12 SUPREME COURT REPORTS [2020] 2 S.C.R.

A 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. [Paras 79, 80][127A-F]
B Shri Gurbaksh Singh Sibbia and others v. State of Punjab
(1980) 2 SCC 565 : [1980] 3 SCR 383; Chandra Mohan v.
State of Uttar Pradesh & Ors [1967] 1 SCR 77; Reserve Bank
of India v. Peerless General Finance and Investment Co. Ltd.
& Ors. (1987) 1 SCC 424 : [1987] 2 SCR 1; Directorate of
Enforcement v Deepak Mahajan (1994) 3 SCC 440 : [1994]
C 1 SCR 445; State of Haryana & Ors. v. Sampuran Singh &
Ors. (1975) 2 SCC 810 : [1976] 1 SCR 626; Dolat Ram v
State of Haryana [1995] 1 SCC 349 : [1994] 6 Suppl. SCR
69 – relied on.
Salauddin Abdulsamad Shaikh v. State of Maharashtra (1996)
D 1 SCC 667 : [1995] 6 Suppl. SCR 556; K.L. Verma v. State &
Anr (1998) 9 SCC 348; Sunita Devi v. State of Bihar & Anr
(2005) 1 SCC 608 : [2004] 6 Suppl. SCR 707; Adri Dharan
Das v. State of West Bengal (2005) 4 SCC 303 : [2005] 2
SCR 188; Nirmal Jeet Kaur v. State of M.P. & Anr (2004) 7
E SCC 558 : [2004] 3 Suppl. SCR 1006; HDFC Bank Limited
v. J.J. Mannan (2010) 1 SCC 679 : [2009] 16 SCR 590;
Satpal Singh v. the State of Punjab (2018) SCC Online (SC
415); Naresh Kumar Yadav v Ravindra Kumar (2008) 1 SCC
632 : [2007] 11 SCR 615; Siddharam Satlingappa Mhetre v.
State of Maharashtra & Ors (2011) 1 SCC 694 : [2010] 15
F SCR 201; Bhadresh Bipinbhai Sheth v. State of Gujarat &
Anr (2016) 1 SCC 152 : [2015] 10 SCR 398 – overruled.
Dataram Singh v. State of U.P (2018) 3 SCC 22; Gurcharan
Singh v State (Delhi Admn) (1978) 1 SCC 118 : [1978] 2
SCR 358; Aslam Babalal Desai v State of Maharastra (1992)
G 4 SCC 272 : [1992] 1 Suppl. SCR 545; Joginder Kumar v.
State of U.P. (1994) 4 SCC 260; Lalitha Kumari v. State of
U.P (2014) 2 SCC 1 : [2013] 14 SCR 713; Arnesh Kumar v.
State of Bihar (2014) 8 SCC 273 : [2014] 8 SCR 128; M.C.
Abraham v. State of Maharastra (2003) 2 SCC 649 : [2002]
H
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 13

5 Suppl. SCR 677; Pradeep Ram v. State of Jharkhand (2019) A
SCC Online (SC) 825; Mithabhai Pashabhai Patel v. State
of Gujarat (2009) 6 SCC 332 : [2009] 7 SCR 1126; State of
M.P. & Anr. v Ram Kishna Balothia & Anr. (1995) Supp (3)
SCC 419 : [1995] 2 Suppl. SCR 590; Savitri Agarwal v. State
of Maharashtra & Anr (2009) 8 SCC 325 : [2009] 10 SCR
B
978; State of A.P. v. Bimal Krishna Kundu (1997) 8 SCC 104:
[1997] 4 Suppl. SCR 412; Muraleedharan v. State of Kerala
(2001) 4 SCC 638 : [2001] 3 SCR 57; Jai Prakash Singh v
State of Bihar (2012) 4 SCC 379 : [2012] 5 SCR 1; Gudikanti
Narasimhulu v. Public Prosecutor (1978) 1 SCC 240 : [1978]
2 SCR 371; P. Chidambaram v. Directorate of Enforcement C
(2019) 9 SCC 24; State of U.P. v Deoman Upadhyaya [1961]
1 SCR 14; Vallabhdas Liladhar v Asst. Collector of Customs
[1965] 3 SCR 854; Hazari Lal Das v State of West Bengal &
Anr (2009) 10 SCC 652 : [2009] 14 SCR 195; Sudhir v.
Maharastra 2016 (1) SCC 146 : [2015] 12 SCR 387; Arvind
D
Tiwary v. State of Bihar (2018) 8 SCC 475; Mahant Chand
Yogi v. State of Haryana (2003) 1 SCC 236; Padmakar
Tukaam Bhavnagare v. State of Maharastra (2012) 13 SCC
720; X v. State of Telangana, (2018) 16 SCC 511 : [2018] 4
SCR 466; Prakash Kadam & Etc. Etc. v Ramprasad
Vishwanath Gupta & Anr (2011) 6 SCC 189 : [2011] 6 SCR E
800; State through C.B.I. v. Amarmani Tripathi (2005) 8 SCC
21 – referred to.
Report of the Committee on Reforms of the Criminal Justice
System by Dr. Justice V.S. Malimath; Reports of the Law
Commission of India- 41st, 48th, 154th, 177th, 203rd and 268th F
– referred to.
Halsbury’s Laws of England(Halsbury’s Laws of England 4th
Edn., Vol. 11, para 166); Codex Justinianus (or ‘Code Jus’)
in Book 9 titled Title 3(2); Wharton’s Law Lexicon – referred
to. G
PER ARUN MISHRA, INDIRA BANERJEE AND VINEET
SARAN, JJ. [CONCURRING]
3. The conclusions in Shri Gurbaksh Singh Sibbia and others
v. State of Punjab 1980 (2) SCC 565 needs reiteration and further
H
14 SUPREME COURT REPORTS [2020] 2 S.C.R.

A that the restrictive manner in which Section 438 of the Cr.PC has
been interpreted in Salauddin Abdulsamad Shaikh v. State of
Maharashtra 1996 (1) SCC 667 is incorrect. Therefore, it is
agreed that Salauddin and other cases which have followed it
needs to be overruled. Similarly, the wide interpretation in
Siddharam Satlingappa Mhetre v. State of Maharashtra & Ors.
B
2011 (1) SCC 694, i.e. that no conditions can be imposed while
granting an order of anticipatory bail, is incorrect. Mhetre to that
extent and other judgments which have followed it are accordingly
overruled.[128A-C]
Shri Gurbaksh Singh Sibbia and others v. State of
C Punjab (1980) 2 SCC 565 : [1980] 3 SCR 383 – relied
on.
Salauddin Abdulsamad Shaikh v. State of Maharashtra
(1996) 1 SCC 667 : [1995] 6 Suppl. SCR 556;
Siddharam Satlingappa Mhetre v. State of Maharashtra
D (2011) 1 SCC 694 : [2010] 15 SCR 201 – overruled.
PER ARUN MISHRA, INDIRA BANERJEE, VINEET
SARAN, M.R. SHAH, S. RAVINDRA BHAT, JJ. [PER
CURIAM]

E FINAL CONCLUSIONS:
4. Answers to the reference:
(1) Question No.1- The protection granted to a person under
Section 438 Cr. PC should not invariably be limited to a fixed
period; it should inure in favour of the accused without any
F restriction on time. Normal conditions under Section 437 (3) read
with Section 438 (2) should be imposed; 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.
G (2) Second question- 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.
H
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 15

The following need to be kept in mind by courts, dealing A
with applications under Section 438, Cr. PC:
(1) Consistent with the judgment in Shri Gurbaksh Singh
Sibbia and others v. State of Punjab, when a person complains of
apprehension of arrest and approaches for order, the application
should be based on concrete facts (and not vague or general B
allegations) relatable to one or other specific offence. The
application seeking anticipatory bail should contain bare essential
facts relating to the offence, and why the applicant reasonably
apprehends arrest, as well as his side of the story. These are
essential for the court which should consider his application, to
evaluate the threat or apprehension, its gravity or seriousness C
and the appropriateness of any condition that may have to be
imposed. It is not essential that an application should be moved
only after an FIR is filed; it can be moved earlier, so long as the
facts are clear and there is reasonable basis for apprehending
arrest. D
(2) 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. E
(3) Nothing in Section 438 Cr. PC, compels or obliges courts
to impose conditions limiting relief in terms of time, or upon filing
of FIR, or recording of statement of any witness, by the police,
during investigation or inquiry, etc. While considering an
application (for grant of anticipatory bail) the court has to consider F
the nature of the offence, the role of the person, the likelihood of
his influencing the course of investigation, or tampering with
evidence (including intimidating witnesses), likelihood of fleeing
justice (such as leaving the country), etc. The courts would be
justified – and ought to impose conditions spelt out in Section
437 (3), Cr. PC [by virtue of Section 438 (2) ]. The need to G
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 investigating 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. H
Likewise, conditions which limit the grant of anticipatory bail may
16 SUPREME COURT REPORTS [2020] 2 S.C.R.

A be granted, if they are required in the facts of any case or cases;
however, such limiting conditions may not be invariably imposed.
(4) Courts ought to be generally guided by considerations
such as the nature and gravity of the offences, the role attributed
to the applicant, and the facts of the case, while considering
B whether to grant anticipatory bail, or refuse it. Whether to grant
or not is a matter of discretion; equally whether and if so, what
kind of special conditions are to be imposed (or not imposed) are
dependent on facts of the case, and subject to the discretion of
the court.
C (5) Anticipatory bail granted can, depending on the conduct
and behavior of the accused, continue after filing of the charge
sheet till end of trial.
(6) An order of anticipatory bail should not be “blanket” in
the sense that it should not enable the accused to commit further
D offences and claim relief of indefinite protection from arrest. It
should be confined to the offence or incident, for which
apprehension of arrest is sought, in relation to a specific incident.
It cannot operate in respect of a future incident that involves
commission of an offence.

E (7) An order of anticipatory bail does not in any manner
limit or restrict the rights or duties of the police or investigating
agency, to investigate into the charges against the person who
seeks and is granted pre-arrest bail.
(8) The observations in Sibbia regarding “limited custody”
F or “deemed custody” to facilitate the requirements of the
investigative authority, would be sufficient for the purpose of
fulfilling the provisions of Section 27, in the event of recovery of
an article, or discovery of a fact, which is relatable to a statement
made during such event (i.e deemed custody). In such event,
there is no question (or necessity) of asking the accused to
G separately surrender and seek regular bail. Sibbia had observed
that “if and when the occasion arises, it may be possible for the
prosecution to claim the benefit of Section 27 of the Evidence Act in
regard to a discovery of facts made in pursuance of information
supplied by a person released on bail by invoking the principle stated
by this Court in State of U.P. v Deoman Upadhyaya.”
H
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 17

(9) It is open to the police or the investigating agency to A
move the court concerned, which grants anticipatory bail, for a
direction under Section 439 (2) to arrest the accused, in the event
of violation of any term, such as absconding, non-cooperating
during investigation, evasion, intimidation or inducement to
witnesses with a view to influence outcome of the investigation
B
or trial, etc.
(10) The court referred to in para (9) above is the court
which grants anticipatory bail, in the first instance, according to
prevailing authorities.
(11) The correctness of an order granting bail, can be C
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. This does not amount to “cancellation” in terms
of Section 439 (2), Cr. PC.
D
(12) The observations in Siddharam Satlingappa Mhetre v.
State of Maharashtra & Ors (and other similar judgments) that no
restrictive conditions at all can be imposed, while granting
anticipatory bail are hereby overruled. Likewise, the decision in
Salauddin Abdulsamad Shaikh v. State of Maharashtra and
subsequent decisions (including K.L. Verma v. State & Anr; Sunita E
Devi v. State of Bihar & Anr; Adri Dharan Das v. State of West
Bengal; Nirmal Jeet Kaur v. State of M.P. & Anr; HDFC Bank
Limited v. J.J. Mannan; Satpal Singh v. the State of Punjab and
Naresh Kumar Yadav v Ravindra Kumar) which lay down such
restrictive conditions, or terms limiting the grant of anticipatory F
bail, to a period of time are hereby overruled. [Para 1][128-E-H;
129-A-H; 130-A-H; 131-A-D]
Siddharam Satlingappa Mhetre v. State of Maharashtra
(2011) 1 SCC 694 : [2010] 15 SCR 201; Salauddin
Abdulsamad Shaikh v. State of Maharashtra (1996) 1 G
SCC 667 : [1995] 6 Suppl. SCR 556; K.L. Verma v.
State and another (1998) 9 SCC 348; Sunita Devi v.
State of Bihar (2005) 1 SCC 608 : [2004] 6 Suppl. SCR
707; Adri Dharan Das v. State of West Bengal (2005)
(4) SCC 303 : [2005] 2 SCR 188; Nirmal Jeet Kaur v.
H
18 SUPREME COURT REPORTS [2020] 2 S.C.R.

A State of M.P. (2004) 7 SCC 558 : [2004] 3 Suppl. SCR
1006; HDFC Bank Limited v. J.J. Mannan (2010) 1 SCC
679 : [2009] 16 SCR 590; Satpal Singh v. State of
Punjab (2018) 4 SCC 303 : [2018] 3 SCR 739; Naresh
Kumar Yadav v Ravindra Kumar (2008) 1 SCC 632 :
[2007] 11 SCR 615 – overruled.
B
Shri Gurbaksh Singh Sibbia and others v. State of
Punjab (1980) 2 SCC 565 : [1980] 3 SCR 383 – relied
on.
Prakash Kadam & Etc. Etc. vs Ramprasad Vishwanath
C Gupta & Anr (2011) 6 SCC 189 : [2011] 6 SCR 800;
Jai Prakash Singh v State of Bihar (2012) 4 SCC 325 :
[2012] 5 SCR 1; State through C.B.I. v. Amarmani
Tripathi (2005) 8 SCC 21 – referred to.
Case Law Reference
D IN THE JUDGMENT OF M.R. SHAH, J.:
[1980] 3 SCR 383 relied on Para 1
[2010] 15 SCR 201 held not correct law Para 1
[2015] 10 SCR 398 referred to Para 1
E [1995] 6 Suppl. SCR 556 held not good law Para 1
(1998) 9 SCC 348 referred to Para 1
[2004] 6 Suppl. SCR 707 referred to Para 1
[2004] 3 Suppl. SCR 1006 referred to Para 1
F
[2009] 16 SCR 590 referred to Para 1
[2018] 3 SCR 739 referred to Para 1
[1977] 2 SCR 52 referred to Para 2
(1994) 4 SCC 260 referred to Para 3.1
G
[2013] 14 SCR 713 referred to Para 3.1
[2014] 8 SCR 128 referred to Para 3.1
[2002] 5 Suppl. SCR 677 referred to Para 3.1
[2001] 2 SCR 878 referred to Para 5.1
H
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 19

IN THE JUDGMENT OF S. RAVINDRA BHAT, J.: A
[1980] 3 SCR 383 relied on Para 3
[1995] 6 Suppl. SCR 556 overruled Para 4
(1998) 9 SCC 348 overruled Para 4
[2004] 6 Suppl. SCR 707 overruled Para 4 B
[2005] 2 SCR 188 overruled Para 4
[2004] 3 Suppl. SCR 1006 overruled Para 4
[2009] 16 SCR 590 overruled Para 4
C
[2007] 11 SCR 615 overruled Para 4
[2010] 15 SCR 201 overruled Para 4
[2015] 10 SCR 398 overruled Para 4
(2018) 3 SCC 22 referred to Para 17
D
[1978] 2 SCR 358 referred to Para 20
[1992] 1 Suppl. SCR 545 referred to Para 21
(1994) 4 SCC 260 referred to Para 24
[2013] 14 SCR 713 referred to Para 24
E
[2014] 8 SCR 128 referred to Para 24
[2002] 5 Suppl. SCR 677 referred to Para 24
[2009] 7 SCR 1126 referred to Para 27
[1995] 2 Suppl. SCR 590 referred to Para 34 F
[2009] 10 SCR 978 referred to Para 35
[1997] 4 Suppl. SCR 412 referred to Para 36
[2001] 3 SCR 57 referred to Para 36
[2012] 5 SCR 1 referred to Para 47 G
[1978] 2 SCR 371 referred to Para 48
(2019) 9 SCC 24 referred to Para 53
[1967] 1 SCR 77 relied on Para 62
[1987] 2 SCR 1 relied on Para 62 H
20 SUPREME COURT REPORTS [2020] 2 S.C.R.

A [1994] 1 SCR 445 relied on Para 63
[1976] 1 SCR 626 relied on Para 64
[1961] 1 SCR 14 referred to Para 66
[1965] 3 SCR 854 referred to Para 66
B [1994] 6 Suppl. SCR 69 relied on Para 73
[2009] 14 SCR 195 referred to Para 74
[2015] 10 SCR 398 referred to Para 74
[2015] 12 SCR 387 referred to Para 75
C
(2018) 8 SCC 475 referred to Para 75
(2003) 1 SCC 236 referred to Para 75
(2012) 13 SCC 720 referred to Para 75
[2018] 4 SCR 466 referred to Para 75
D
[2011] 6 SCR 800 referred to Para 78
(2005) 8 SCC 21 referred to Para 78

IN THE JUDGMENT OF ARUN MISHRA, INDIRA BANERJEE
E
AND VINEET SARAN, JJ.
[1980] 3 SCR 383 relied on Para 3
[1995] 6 Suppl. SCR 556 overruled Para 4
[2010] 15 SCR 201 overruled Para 4
F

IN THE JUDGMENT OF PER CURIAM:
[2011] 6 SCR 800 referred to Para 1(11)
[2012] 5 SCR 1 referred to Para 1(11)
G
(2005) 8 SCC 21 referred to Para 1(11)
[1980] 3 SCR 383 relied on Para 1 (11)
[2010] 15 SCR 201 overruled Para 1(12)
[1995] (6) Suppl. SCR 556 overruled Para 1(12)
H
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 21

(1998) 9 SCC 348 overruled Para 1(12) A
[2004] 6 Suppl. SCR 707 overruled Para 1(12)
[2005] 2 SCR 188 overruled Para 1(12)
[2004] (3) Suppl. SCR 1006 overruled Para 1(12)
[2009] 16 SCR 590 overruled Para 1(12) B
[2018] 3 SCR 739 overruled Para 1(12)
[2007] 11 SCR 615 overruled Para 1(12)

C
CRIMINAL APPELLATE JURISDICTION: Special Leave
Petition (Criminal) Nos. 7281-7282 of 2017.
From the Judgment and Order dated 25.07.2017 and 02.08.2017
of the High Court of Delhi at New Delhi in Bail Application No. 1415 of
2017.
D
Tushar Mehta, SG, Aman Lekhi, ASG, Vikramjit Banerjee, ASG,
V.Shekhar, Ms. Aishwarya Bhati, Sr. Advs., Abhay Kumar, Vineet Kumar
Singh, Saurabh Mishra, Ms. Vanshaja Saluja, Sanjay Kumar Tyagi, Pranay
Ranjan, Kanu Agrawal, Ayush Anand, Shantanu Sharma, B. V. Balaram
Das, Diyansh Rai, C. S. N. Mohan Rao, Lokesh Kumar Sharma, Nipun
Saxena, Ms. Sukanya Singh, Kartikey Kanojiya, Vivek Jain, Ms. Suchitra E
Kumbhat, Ms. Sasha Maria Paul, Mehul M. Gupta, Dhananjay Ray,
Ms. Vrinda Bhandari, Apoorv Singhal, Rajeev Dubey, A. Mishra, K.
Mishra, Advs. for the appearing parties.
Harin P. Raval, K.V.Vishwanathan, Sr. Advs. (A.Cs.)
F
The Judgments of the Court were delivered by
M. R. SHAH, J.
1. In the light of the conflicting views of the different Benches of
varying strength, more particularly in the cases of Shri Gurbaksh Singh
Sibbia and others v. State of Punjab (1980) 2 SCC 565; Siddharam G
Satlingappa Mhetre v. State of Maharashtra (2011) 1 SCC 694;
Bhadresh Bipinbhai Sheth v. State of Gujarat (2016) 1 SCC 152 on
one side and in the cases of Salauddin Abdulsamad Shaikh v. State of
Maharashtra (1996) 1 SCC 667, subsequently followed in the case of
K.L. Verma v. State and another (1998) 9 SCC 348; Sunita Devi v.
H
22 SUPREME COURT REPORTS [2020] 2 S.C.R.

A State of Bihar (2005) 1 SCC 608; Nirmal Jeet Kaur v. State of M.P.
(2004) 7 SCC 558; HDFC Bank Limited v. J.J. Mannan (2010) 1
SCC 679; and Satpal Singh v. State of Punjab (2018) 4 SCC 303,
the following questions are referred for consideration by a larger Bench:
“(1) Whether the protection granted to a person under Section
B 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.”
2. Shri Harin P. Raval, learned Senior Advocate appearing as
C Amicus Curiae relying upon the decision of this Court in the case of
Balchand Jain v. State of M.P. (1976) 4 SCC 572 has submitted that
though the expression “anticipatory bail” has not been defined in the
Code, as observed by this Court in the aforesaid decision, “anticipatory
bail” means “bail in anticipation of arrest”. It is submitted that in the
D aforesaid decision, this Court has further observed that the expression
“anticipatory bail” is a misnomer inasmuch as it is not as if bail is presently
granted by the Court in anticipation of arrest. It is submitted that when a
competent court grants “anticipatory bail”, it makes an order that in the
event of arrest, a person shall be released on bail. It is submitted that
there is no question of release on bail unless a person is arrested and,
E therefore, it is only on arrest that the order granting “anticipatory bail”
becomes operative.
2.1. Shri Raval, learned Amicus Curiae has taken us to the historical
perspective on the inclusion of Section 438 of the Cr. P.C. It is submitted
that on the recommendation of the Law Commission of India in its 41st
F Report dated 24.09.1969, the Parliament introduced a new provision in
the form of “anticipatory bail” under Section 438 of the Cr.P.C. It is
submitted that the Law Commission of India in its 41st Report stated in
paragraph 39.9 the justification for power to grant “anticipatory bail”. It
is submitted that as per the Law Commission the necessity for granting
G “anticipatory bail” arises mainly because sometimes influential persons
try to implicate their rivals in false cases for the purpose of disgracing
them or for other purposes by getting them detained in jail for some
days. It is submitted that the Law Commission further observed that
with the accentuation of political rivalry, this tendency is showing signs
of steady increase. Apart from false cases, where there are reasonable
H
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 23
[M. R. SHAH, J.]

grounds for holding that a person accused of an offence is not likely to A
abscond, or otherwise misuse his liberty, while on bail, there seems to be
no justification to require him to first submit to custody, remain in prison
for some days, and then apply for bail.
2.2 It is further submitted that power to grant “anticipatory bail”
vests only in the High Courts or the Courts of Sessions. It is submitted B
that the “anticipatory bail” can be applied at different stages. It is
submitted that even in a case where no FIR is lodged and a person is
apprehending his arrest in case the FIR is lodged, in that case, he can
apply for “anticipatory bail” and after notice to the Public Prosecutor
the Court can grant “anticipatory bail”. It is submitted that even in a
case where the FIR is lodged but the investigation has not yet begun, C
i.e., pre investigation stage, the “anticipatory bail” can be applied. It is
submitted that “anticipatory bail” can also be applied at post investigation
stage. It is submitted that after exercising the discretion judiciously, the
High Court or the Sessions Court grants “anticipatory bail” and that too
after hearing the Public Prosecutor. It is submitted that therefore once D
the bail is granted in anticipation of the arrest, there is no reason to limit
the same till the summon is issued by the Court and/or there is no reason
to limit the period of bail in anticipation granted.
2.3 Shri Harin P. Raval, learned Senior Advocate appearing as
Amicus Curiae has further submitted that in the case of Gurbaksh Singh E
Sibbia (supra), a Constitution Bench of this Court has observed and
held that the facility which Section 438, Cr. P.C. affords is generally
referred to as “anticipatory bail”, an expression which was used by the
Law Commission in its 41st Report. Neither the section nor its marginal
note so describes it but, the expression “anticipatory bail” is a convenient
mode of conveying that it is possible to apply for bail in anticipation of F
arrest. It is submitted that any order of bail can, of course, be effective
only from the date of arrest because to grant bail as stated in Wharton’s
Law Lexicon, is to “set at liberty a person arrested or imprisoned, on
security being taken for his appearance”. It is submitted that thus, bail is
basically release from restraint, more particularly, release from the G
custody of the police. It is submitted that the act of arrest directly affects
freedom of movement of the person arrested by the police, and speaking
generally, an order of bail gives back to the accused that freedom on
condition that he will appear to take his trial. Taking a surety, bonds and
such other modalities are the means by which an assurance is secured
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24 SUPREME COURT REPORTS [2020] 2 S.C.R.

A from the accused that though he has been released on bail, he will present
himself at the trial of the offence or offences of which he is charged and
for which he was arrested. It is submitted that the distinction between
an ordinary order of bail and an order of anticipatory bail is that whereas
the former is granted after arrest and therefore means release from the
custody of the police, the latter is granted in anticipation of arrest and is
B
therefore effective at the very moment of arrest. It is submitted that in
other words, unlike a post-arrest order of bail, it is a pre-arrest legal
process which directs that if the person in whose favour it is issued is
thereafter arrested on the accusation in respect of which the direction is
issued, he shall be released on bail.
C 2.4 Shri Harin P. Raval, learned Senior Advocate appearing as
Amicus Curiae has further submitted that however the core questions
before this Court are, (a) what is the life or currency of an anticipatory
bail once the same has been granted by the competent court?; (b) once
an order granting anticipatory bail has been passed, whether the said
D anticipatory bail only survives till the stage of filing of charge sheet/
challan/final report or whether it subsists during the entire duration of
trial?. It is further submitted by Shri Raval that one another question
may arise, namely, in a case where if new incriminating materials are
found during the course of investigation, whether they could be relied on
by the Court to cancel anticipatory bail which has already been granted?
E
2.5 It is submitted that, as such, the aforesaid questions are not
res integra in view of the decision of the Constitution Bench of this
Court in the case of Gurbaksh Singh Sibbia (supra). It is submitted
that in the case of Gurbaksh Singh Sibbia (supra), a Constitution
Bench of this Court has held that there is no limit to the currency of an
F order of anticipatory bail. The Court is vested with absolute discretion to
direct the duration of the trial which can vary from a few weeks to even
such duration until charge sheet has been filed and which may also extend
to the entire duration of the trial. It is submitted that it is further observed
that the sole consideration must be with a view to balance the two
G competing interests, viz., protecting the liberty of the accused and the
sovereign power of the police to conduct a fair investigation. Shri Raval,
learned Amicus Curiae has heavily relied upon the observations made
by the Constitution Bench of this Court in paragraphs 42 & 43 of
Gurbaksh Singh Sibbia (supra).

H
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 25
[M. R. SHAH, J.]

2.6 It is further submitted by Shri Raval that in the subsequent A
decision of this Court in the case of Siddharam Satlingappa Mhetre
(supra), this Court has taken the view that the order of anticipatory bail
once granted ordinarily subsists during the entire duration of the trial. It
is submitted that it is further observed that by that the power of the
Sessions Court or that of the High Court to re-visit its order granting
B
anticipatory bail is curtailed, in case circumstances exist or new
exigencies arise which merit interference. Heavy reliance is placed upon
observations made by this Court in the case of Siddharam Satlingappa
Mhetre (supra) in paragraphs 94, 95, 98, 100, 122 and 123.
It is submitted by Shri Raval that however, the judgment rendered
in Siddharam Satlingappa Mhetre (supra) particularly in paragraphs C
95, 108, 122 and 123 does not take into consideration the observations of
the Constitution Bench in Gurbaksh Singh Sibbia (supra) in paragraphs
42 & 43, which clearly cull out that the discretion of the Sessions Court
or a High Court is wide enough to limit as well as specify the duration of
the anticipatory bail taking into account all relevant factors which may D
persuade the discretion of the Court. It is submitted that Siddharam
Satlingappa Mhetre (supra) proceeded to hold that the anticipatory
bail shall subsists during the entire currency of the trial and specifically
rejected the notion that anticipatory bail could be for a limited time as
well, on the expiry of which the accused must surrender and apply for a
regular bail. It is submitted that in view of the conflicting approach, the E
decision rendered in the case of Siddharam Satlingappa Mhetre
(supra)particularly the observations made in paragraphs 95, 108, 122 &
123 need to be revisited.
2.7 It is further submitted by Shri Raval, learned Amicus Curiae
that the discretion of the Sessions Court and the High Court is absolute, F
and no limitations whatsoever have been imposed by the legislature. It is
submitted that the discretion therefore can be exercised to even limit the
duration of the anticipatory bail, in order to ensure that the accused also
cooperates with the investigation, or that relevant discoveries to secure
incriminating material could be made under Section 27 of the Evidence G
Act, or in view of new incriminating circumstances which establish
complicity of the accused. It is submitted that therefore the view taken
by this Court in Siddharam Satlingappa Mhetre (supra) that the
anticipatory bail to subsist for the entire duration of the trial, curtails the
discretion of the Sessions Court or the High Court to limit such duration
H
26 SUPREME COURT REPORTS [2020] 2 S.C.R.

A of anticipatory bail. It is submitted that such an interpretation is in absolute
contravention of the law declared by the Constitution Bench in the case
of Gurbaksh Singh Sibia (supra).
2.8 Making the above submissions and relying upon the aforesaid
decisions of the Constitution Bench of this Court, Shri Raval, learned
B Amicus Curiae has concluded as under:
1) that the power vested by the Parliament on superior criminal
courts in the order of hierarchy, such as Sessions Court and High Court,
is a power entailing conferment of absolute discretion in deciding whether
an application for anticipatory bail may be allowed or rejected, and also
C inheres in this discretion, the additional power to limit the duration of
anticipatory bail to any point in time, or to any stage as the Courts may
deem fit in the facts and circumstances of the case, and in view of all
the attending circumstances;
2) that the order granting anticipatory bail will not interdict the
D power of the investigating agency to continue investigation of the case
or would prevent the investigating agency to ask for and be granted,
respectively, Police Custody of the accused for the purposes of the
investigation and where the investigating officer feels that the custody
of the accused is necessary. Further since police custody can be granted
only in the first 14 days of the arrest, the decision to restrict the duration
E of the bail would balance the twin competing interest, viz., the individual
liberty and the sovereign power of the police to investigate the case;
3) that the life of the order granting anticipatory bail can be
restricted, which may be at a stage till either the FIR is filed in cases
where such order is granted on an reasonable apprehension of being
F arrested in relation to a cognizable case, where the FIR or Complaint is
yet not filed; in cases where FIR or complaint is filed, it may be restricted
to a period of ten days after arrest (since it leaves a period of 4 days for
the investigation agency to get police custody, within the outer limit of 14
days) and then leave it open for the accused so released on anticipatory
G bail to apply for regular bail under Section 437/439; alternatively such
order may endure till filing of charge sheet which has to be filed within
90 days of the arrest. It may be remembered here that non-filing of
charge sheet within 90 days of arrest entitles the accused, statutory bail
or default bail, as a matter of right, in view of express stipulation contained
in Section 167 of the Code of Criminal Procedure, 1973. Also, in case
H
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 27
[M. R. SHAH, J.]

where an accused is released on anticipatory bail, the investigation A
authorities may not be subjected to adherence to filing of charge sheet
within 90 days as there would be no consequence as the accused is
already enlarged on bail. It may therefore be safer to adhere to the
earlier practice evolved by judicial precedents to restrict the operation
of life of the order granting anticipatory bail for 10 days of arrest, leaving
B
it open to the accused to apply for regular bail under Section 437/439 of
the Code and equally leaving it open for the Court to consider such an
application without in any way being influenced by the fact of grant of
anticipatory bail, as at that stage the considerations are at a very early
stage where the investigation itself may be in nascent stage or the
materials are yet to be gathered and the accused is yet to be interrogated; C
and
4) that anticipatory bail once granted can also be cancelled, either
in appeal to a superior forum on challenge being made or by the same
court on establishment of well accepted and legally enshrined principles
relating to cancellation of bail. D
3. Shri K.V. Vishwanathan, learned Senior Advocate who was
also requested to assist us as an Amicus Curiae has submitted that the
exercise of power under Section 438 is exactly like the exercise of power
under Sections 437 and 439 of the Cr.P.C. It is submitted therefore, the
pre-arrest bail granted in anticipation of arrest under Section 438 ought E
to operate like any other order granting bail till an order of conviction or
till an affirmative direction is passed under Section 439(2) of the Cr.P.C.
It is submitted that therefore the law laid down by this Court in the cases
of Gurbaksh Singh Sibbia (supra) and Siddharam Satlingappa
Mhetre (supra) lay down the correct law. It is submitted that the
exceptions carved out in Gurbaksh Singh Sibbia (supra) particularly F
in paras 19, 42 and 43 are well within the scheme of the Code.
3.1 It is further submitted by Shri Vishwanathan, learned Amicus
Curiae that the power of arrest of the police is under Section 41 of the
Cr.P.C. It is submitted that this Section has two essential parts. One,
relating to offences in which the maximum punishment can extend to G
imprisonment for seven years. Second, relating to offences in which the
maximum punishment can extent to imprisonment above seven years or
death penalty. It is submitted that though they have different conditions
and thresholds, in both cases it is clear from a bare reading of the section
that the power of arrest cannot be exercised in every FIR that is H
28 SUPREME COURT REPORTS [2020] 2 S.C.R.

A registered under Section 154 Cr.P.C. It is submitted that this power is
circumscribed by the conditions laid down in this Section. Moreover, this
principle that the power of arrest is not required to be exercised in every
case was recognised in the cases of Joginder Kumar v. State of U.P.
(1994) 4 SCC 260 (para 20); Lalitha Kumari v. State of U.P. (2014)
2 SCC 1 (paras 107-108); and Arnesh Kumar v. State of Bihar (2014)
B
8 SCC 273 (paras 5 and 6). It is submitted that, in fact, this Court in
the case of M.C. Abraham v. State of Maharashtra (2003) 2 SCC
649 (para 15) has held that it was not mandatory for the police to
arrest a person only because his/her anticipatory bail had been rejected.
3.2 It is further submitted by Shri Vishwanathan, learned Amicus
C Curiae that the power of arrest is then further circumscribed by Section
438 Cr.P.C. It is submitted that as recognized by the Law Commission,
there are cases where the power of arrest is not required or allowed to
be exercised. It is submitted that exercising power of arrest in such
cases would be a grave violation of a person’s right and liberty. It is
D submitted that such exercise of power would amount to misuse of Section
41. It is submitted that the check on the power of arrest and custody
provided by Sections 437 or 439 is limited as the check is only post
facto. It is submitted that by then the person arrested has already
suffered the trauma and humiliation of arrest.
E 3.3 It is further submitted that to safeguard this situation, Section
438 was introduced so as to provide for judicial intervention in necessary
cases. It is submitted that this judicial intervention is to ensure that the
power of arrest is regulated under the scrutiny of the courts. It is submitted
that to strike a further balance between the power of arrest and the
rights of the accused, this power was specifically given to the Court of
F Session and the High Court so as to ensure that this judicial intervention
is done at the supervisory level and not at the magisterial level. It is
submitted that it is in this light that the two questions raised in the present
reference need to be addressed.
3.4 Taking us to the recommendations in the 41st Report of the
G Law Commission and the observations made in the Report of the
Committee on Reforms of the Criminal Justice system, headed by Dr.
Justice V.S. Malimath, it is submitted by Shri Vishwanathan that Section
438 is a check on the power of arrest of the police. It is submitted that as
stated in the above Law Commission Report, it is a check not only against
H false cases, but also in cases where the need to arrest does not arise.
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 29
[M. R. SHAH, J.]

3.5 It is further submitted that even otherwise a bare reading of A
the Section shows that there is nothing in the language of the Section
which goes to show that the pre-arrest bail granted under Section 438
has to be time-bound. It is submitted that the position is the same as in
Sections 437 and 439. It is submitted that at this stage Section 438(3) is
relevant to be taken into consideration. It is submitted that there are two
B
very important aspects in Section 438(3) Cr.P.C. which are relevant to
be considered to understand the scheme of the Code, viz., (a) a person
in whose favour a pre-arrest bail order has been made under Section
438 has first to be arrested. Such a person is then released on bail on the
basis of the pre-arrest bail order. For such release the person has to
comply with the requirement of Section 441 of giving a bond or surety; C
and (b) where the magistrate taking cognizance under Section 204 is of
the view that a warrant is required to be issued at the first instance, such
magistrate is only empowered to issue only a bailable warrant and not a
non-bailable warrant. This curtailment of power of the magistrate clearly
shows the intent of the legislature that a person who has been granted
D
bail under Section 438 ought not to be arrested at the stage of cognizance
because of the said pre-arrest bail order. It is submitted that in light of
this express provision, no other interpretation is possible to be given to
the said section. It is submitted that the second question referred herein
is squarely covered by this sub-section.
3.6 It is further submitted by Shri Vishwanathan, learned Amicus E
Curiae that the order passed under Section 438, which is in the nature of
a pre-arrest bail order, is however subject to the power granted to the
Court of Session and the High Court under Section 439(2), Cr.P.C., which
gives power to the Court of Session or the High Court to direct the
arrest of the accused at any time. It is submitted that this ensures that F
through judicial intervention the balance between the two competing
principles can again be revisited if the need arises. It is submitted that
the only difference is that the power of arrest in these cases is exercised
only after judicial scrutiny. It is submitted that in any case and as observed
by this Court in Gurbaksh Singh Sibbia (supra), the orders once passed
under Section 438 will continue till the trial unless in exercise of judicial G
discretion the Sessions Court or the High Court limits the same, looking
to the facts and circumstances of the case and the stages at which the
power under Section 438 Cr.P.C. is exercised. It is submitted that the
Code presupposes that the order passed under Sections 438 or 439 are
not or cannot be temporary time bound. It is submitted that a person in H
30 SUPREME COURT REPORTS [2020] 2 S.C.R.

A whose favour an order of pre-arrest bail is passed can be taken into
custody thereafter only when a specific direction is passed under Section
439(2) of the Code.
3.7 Shri Vishwanathan, learned Amicus Curiae, while making the
aforesaid submissions and relying upon the aforesaid decisions of this
B Court, has concluded that the pre-arrest bail granted under Section 438
of the Code is exactly like the orders of bail passed under Sections 437
and 439 of the Code; the Code does not contemplate any power in the
hands of the Courts to pass time-bound orders under Section 438 for
good reason; on the other hand, the investigating agency can approach
the Court under Section 439(2) and in the event of the police making out
C a case, the Court has all the powers to direct the accused to be taken
into custody.
4. Shri Tushar Mehta, learned Solicitor General of India has heavily
relied upon paras 42 and 43 of Gurbaksh Singh Sibbia (supra) and
has submitted that as observed and held by the Constitution Bench of
D this Court that the Court can in a given case and for justifiable reasons
limit the period of anticipatory bail. It is submitted that this Court in the
case of Siddharam Satlingappa Mhetre (supra) has misread the
judgment in Gurbaksh Singh Sibbia (supra) to a limited extent. It is
submitted that to the extent Siddharam Satlingappa Mhetre (supra)
E states that “in view of the clear declaration of the law by the Constitution
Bench, the life of the order under Section 438 Cr.P.C. granting bail cannot
be curtailed”, may not be correct law in light of the observations made in
para 42 by the Constitution Bench in Gurbaksh Singh Sibbia (supra).
It is submitted that the Constitution Bench in Gurbaksh Singh Sibbia
(supra) has not categorically barred anticipatory bail order for limited
F time period, and at the same time, merely stated that “normal rule” should
be not to limit the time period. It is submitted that at the same time, the
decision of this Court in the case of Salauddin Abdulsamad Shaikh
(supra), to the extent it states that the order of the anticipatory bail has
to be necessarily limited in time frame is against the decision of the
G Constitution Bench in Gurbaksh Singh Sibbia (supra), which
specifically states that the “normal rule” to not limit the order of
anticipatory bail. It is submitted that therefore the extreme views on
both side in Siddharam Satlingappa Mhetre (supra) and Salauddin
Abdulsamad Shaikh (supra), to that limited extent, do not consider the
observations in Gurbaksh Singh Sibbia (supra), in the correct light. It
H
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 31
[M. R. SHAH, J.]

is submitted that in a case, with justifiable reasons, to be recorded in A
writing, indicating reasons to deviate from the “normal rule”, the
anticipatory bail can be granted for a limited time period, the life of
which, would extinguish accordingly.
4.1 It is further submitted by Shri Tushar Mehta, learned Solicitor
General of India that so far as the second reference, namely, whether B
the life of an anticipatory bail should end at the time and stage when the
accused is summoned by the court is concerned, it is submitted that
there cannot be a straightjacket formula. It is submitted that in a case
wherein the anticipatory bail is granted for a limited time period, the life
would extinguish accordingly. It is submitted that in a case wherein the
anticipatory bail is granted without conditions, the life may terminate C
upon the circumstances warranting cancellation of such bail or such
interference. It is submitted that the statute does not contemplate an
automatic cancellation upon filing of charge sheet and therefore the
judgment of this Court in the case of HDFC Bank Limited (supra), to
that extent, may not lay down the correct law. It is submitted that, at the D
same time, the Hon’ble Courts have deprecated the practice of blanket
orders of bail/anticipatory bail. It is submitted that there are eventualities
arising in every case may be different and therefore are required to be
dealt with accordingly, in the facts and circumstances of each case. It is
submitted that even while granting the anticipatory bail, the right of the
investigating agency to seek custodial interrogation cannot be hampered E
mechanically.
5. Relying upon the decisions of this Court in the cases of HDFC
Bank Ltd. (supra) and Satpal Singh (supra), it is submitted by Shri
Vikramjit Banerjee, learned Additional Solicitor General of India that as
held by this Court in the aforesaid decisions, the purpose of Section 438 F
is providing protection only during the process of investigation and the
accused should seek regular bail upon submission of the charge sheet
against him from the court where entire material is placed. It is submitted
that in any case grant of the pre-arrest bail under Section 438 Cr.P.C.
shall not affect the right of the investigating agency to seek custodial G
interrogation and in conducting further investigation.
5.1 It is further submitted by Shri Banerjee, learned ASG that as
held by this Court in the case of Uday Mohanlal Acharya v. State of
Maharashtra (2001) 5 SCC 453, that even when accused is found to
be on bail at the stage of committal proceedings, the committing Magistrate H
32 SUPREME COURT REPORTS [2020] 2 S.C.R.

A has the power to cancel the bail and commit him to custody, if he considers
it necessary to do so. It is submitted that as observed and held by this
Court in the aforesaid decisions that an interpretation that an order of
protection from arrest under Section 438 will remain operational till the
end of the trial will effectively make Section 209 (b) of Cr.P.C. otiose.
B 5.2 At the end, Shri Banerjee, learned ASG has submitted that
there should necessarily be conditions imposed in granting a pre-arrest
bail order and it cannot be a blanket order; in terms of the Cr.P.C. under
Section 209(b) and Section 240(2), the accused can be remanded to
custody by the Magistrate during the stage of inquiry, if he considers it
necessary to do so at the stage of the submission of the final report/
C charge sheet or committal proceedings. It is submitted that it is imperative
therefore that if the accused takes pre-arrest bail during the earlier state
of criminal investigation, the power of the Magistrate under the said
provisions of Cr.P.C. should be maintained including the power of the
Magistrate to send the accused to the custody.
D 6. Shri C.S.N. Mohan Rao, learned Advocate appearing on behalf
of respondent no.2 has vehemently submitted that the Constitution Bench
judgment in Gurbaksh Singh Sibbia (supra) has dealt with various
aspects of anticipatory bail and preserved the discretionary power granted
by the legislature on the courts while considering application for
E anticipatory bail. It is submitted that the Constitution Bench has refused
to impose any limitation or conditions, which are not imposed by the
Parliament.
6.1 It is further submitted by the learned Counsel appearing on
behalf of respondent no.2 that the decision of the Constitution Bench
F regarding duration of anticipatory bail is not called in question by any
judgment. It is submitted that there is a clear conflict regarding the
duration of anticipatory bail as enunciated by the Constitution Bench
and the order in Salauddin Abdulsamad Shaikh (supra), which was
followed in number of subsequent judgments. It is submitted that the
decision of this Court in Salauddin Abdulsamad Shaikh (supra) and
G subsequent judgments following Salauddin Abdulsamad Shaikh
(supra) are all per incuriam.
6.2 It is further submitted by the learned Counsel appearing on
behalf of respondent no.2 that as a normal rule, it is not required to limit
the duration of anticipatory bail. It is submitted that however, court while
H
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 33
[M. R. SHAH, J.]

granting anticipatory bail may, keeping in view the peculiar facts and A
circumstances of the case, limit the duration of anticipatory bail. It is
submitted that the life of anticipatory bail would not end on filing of
charge sheet.
6.3 It is further submitted by the learned counsel appearing on
behalf of respondent no.2 that both the questions of law framed for B
consideration by the larger Bench does not arise for consideration. It is
submitted that considering the elaborate reasons given by the Constitution
Bench in not putting any fetters or limitations on the discretionary power
of a court to grant anticipatory bail and as there is no ambiguity in the
judgment of the Constitution Bench, this Court may reiterate the judgment
of the Constitution Bench in Gurbaksh Singh Sibbia (supra). C

7. We have heard the learned counsel for the respective parties
at length.
In the light of the conflicting views of the different Benches of
varying strength, the following questions are referred for consideration D
by a larger Bench:
“(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 E
and stage when the accused is summoned by the court.”
7.1 At the outset, it is required to be noted that as such the expression
“anticipatory bail” has not been defined in the Code. As observed by this
Court in the case of Balchand Jain (supra), “anticipatory bail” means
“bail in anticipation of arrest”. As held by this Court, the expression F
“anticipatory bail” is a misnomer inasmuch as it is not as if bail is presently
granted by the Court in anticipation of arrest. An application for
“anticipatory bail” in anticipation of arrest could be moved by the accused
at a stage before an FIR is filed or at a stage when FIR is registered but
the charge sheet has not been filed and the investigation is in progress or
G
at a stage after the investigation is concluded. Power to grant “anticipatory
bail” under Section 438 of the Cr.P.C. vests only with the Court of Sessions
or the High Court. Therefore, ultimately it is for the concerned court to
consider the application for “anticipatory bail” and while granting the
“anticipatory bail” it is ultimately for the concerned court to impose
H
34 SUPREME COURT REPORTS [2020] 2 S.C.R.

A conditions including the limited period of “anticipatory bail”, depends
upon the stages at which the application for anticipatory bail is moved. A
person in whose favour a pre-arrest bail order is made under Section
438 of the Cr.P.C. has to be arrested. However, once there is an order
of pre-arrest bail/anticipatory bail, as and when he is arrested he has to
be released on bail. Otherwise, there is no distinction or difference
B
between the pre-arrest bail order under Section 438 and the bail order
under Section 437 & 439 of the Cr.P.C. The only difference between
the pre-arrest bail order under Section 438 and the bail order under
Sections 437 and 439 is the stages at which the bail order is passed. The
bail order under Section 438 of the Cr.P.C. is prior to his arrest and in
C anticipation of his arrest and the order of bail under Sections 437 and
439 is after a person is arrested. A bare reading of Section 438 of the
Cr.P.C. shows that there is nothing in the language of the Section which
goes to show that the pre-arrest bail granted under Section 438 has to be
time bound. The position is the same as in Section 437 and Section 439
of the Cr.P.C.
D
7.2 While considering the issues referred to a larger Bench,
referred to hereinabove, the decision of the Constitution Bench of this
Court in Gurbaksh Singh Sibbia (supra) is required to be referred to
and considered in detail. The matter before the Constitution Bench in
the case of Gurbaksh Singh Sibbia (supra) was arising out of the
E decision of the Full Bench of the Punjab and Haryana High Court. The
High Court rejected the application for bail after summarising, what
according to it was the true legal position, thus,
“(1) The power under Section 438, Criminal Procedure Code, is
of an extraordinary character and must be exercised sparingly
F in exceptional cases only;
(2) Neither Section 438 nor any other provision of the Code
authorises the grant of blanket anticipatory bail for offences
not yet committed or with regard to accusations not so far
levelled.
G
(3) The said power is not unguided or uncanalised but all the
limitations imposed in the preceding Section 437, are implicit
therein and must be read into Section 438.
(4) In addition to the limitations mentioned in Section 437, the
petitioner must make out a special case for the exercise of
H
the power to grant anticipatory bail.
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 35
[M. R. SHAH, J.]

(5) Where a legitimate case for the remand of the offender to A
the police custody under Section 167(2) can be made out by
the investigating agency or a reasonable claim to secure
incriminating material from information likely to be received
from the offender under Section 27 of the Evidence Act can
be made out, the power under Section 438 should not be
B
exercised.
(6) The discretion under Section 438 cannot be exercised with
regard to offences punishable with death or imprisonment
for life unless the court at that very stage is satisfied that
such a charge appears to be false or groundless.
C
(7) The larger interest of the public and State demand that in
serious cases like economic offences involving blatant
corruption at the higher rungs of the executive and political
power, the discretion under Section 438 of the Code should
not be exercised; and
D
(8) Mere general allegations of mala fides in the petition are
inadequate. The court must be satisfied on materials before
it that the allegations of mala fides are substantial and the
accusation appears to be false and groundless.”
7.3 After considering the scheme of “anticipatory bail” under E
Section 438, Cr.P.C. and while not agreeing with the Full Bench, this
Court has observed and held as under:
“12. …..By any known canon of construction, words of width
and amplitude ought not generally to be cut down so as to
read into the language of the statute restraints and conditions F
which the legislature itself did not think it proper or necessary
to impose. This is especially true when the statutory provision
which falls for consideration is designed to secure a valuable
right like the right to personal freedom and involves the
application of a presumption as salutary and deep grained
in our criminal jurisprudence as the presumption of G
innocence. Though the right to apply for anticipatory bail
was conferred for the first time by Section 438, while enacting
that provision the legislature was not writing on a clean slate
in the sense of taking an unprecedented step, insofar as the
right to apply for bail is concerned. It had before it two cognate
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36 SUPREME COURT REPORTS [2020] 2 S.C.R.

A provisions of the Code: Section 437 which deals with the
power of courts other than the Court of Session and the High
Court to grant bail in non-bailable cases and Section 439
which deals with the “special powers” of the High Court and
the Court of Session regarding bail…..
B The provisions of Sections 437 and 439 furnished a
convenient model for the legislature to copy while enacting
Section 438. If it has not done so and has departed from a
pattern which could easily be adopted with the necessary
modifications, it would be wrong to refuse to give to the
departure its full effect by assuming that it was not intended
C to serve any particular or specific purpose. The departure,
in our opinion, was made advisedly and purposefully:
Advisedly, at least in part, because of the 41st Report of the
Law Commission which, while pointing out the necessity of
introducing a provision in the Code enabling the High Court
D and the Court of Session to grant anticipatory bail, said in
para 39.9 that it had “considered carefully the question of
laying down in the statute certain conditions under which
alone anticipatory bail could be granted” but had come to
the conclusion that the question of granting such bail should
be left “to the discretion of the court” and ought not to be
E fettered by the statutory provision itself, since the discretion
was being conferred upon superior courts which were
expected to exercise it judicially. The legislature conferred a
wide discretion on the High Court and the Court of Session
to grant anticipatory bail because it evidently felt, firstly, that
F it would be difficult to enumerate the conditions under which
anticipatory bail should or should not be granted and
secondly, because the intention was to allow the higher courts
in the echelon a somewhat free hand in the grant of relief in
the nature of anticipatory bail. That is why, departing from
the terms of Sections 437 and 439, Section 438(1) uses the
G language that the High Court or the Court of Session “may,
if it thinks fit” direct that the applicant be released on bail.
Sub-section (2) of Section 438 is a further and clearer
manifestation of the same legislative intent to confer a wide
discretionary power to grant anticipatory bail. It provides
H that the High Court or the Court of Session, while issuing a
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 37
[M. R. SHAH, J.]

direction for the grant of anticipatory bail, “may include such A
conditions in such directions in the light of the facts of the
particular case, as it may think fit”, including the conditions
which are set out in clauses (i) to (iv) of sub-section (2). The
proof of legislative intent can best be found in the language
which the legislature uses. Ambiguities can undoubtedly be
B
resolved by resort to extraneous aids but words, as wide and
explicit as have been used in Section 438, must be given their
full effect, especially when to refuse to do so will result in
undue impairment of the freedom of the individual and the
presumption of innocence. It has to be borne in mind that
anticipatory bail is sought when there is a mere apprehension C
of arrest on the accusation that the applicant has committed
a non- bailable offence. A person who has yet to lose his
freedom by being arrested asks for freedom in the event of
arrest. That is the stage at which it is imperative to protect his
freedom, insofar as one may, and to give full play to the
D
presumption that he is innocent. In fact, the stage at which
anticipatory bail if generally sought brings about its striking
dissimilarity with the situation in which a person who is
arrested for the commission of a non-bailable offence asks
for bail. In the latter situation, adequate data is available to
the court, or can be called for by it, in the light of which it E
can grant or refuse relief and while granting it, modify it by
the imposition of all or any of the conditions mentioned in
Section 437.
13. This is not to say that anticipatory bail, if granted,
must be granted without the imposition of any conditions. That F
will be plainly contrary to the very terms of Section 438.
Though sub-section (1) of that section says that the court
“may, if it thinks fit” issue the necessary direction for bail,
sub-section (2) confers on the court the power to include such
conditions in the direction as it may think fit in the light of the
facts of the particular case, including the conditions mentioned G
in clauses (i) to (iv) of that sub-section. The controversy
therefore is not whether the court has the power to impose
conditions while granting anticipatory bail. It clearly and
expressly has that power. The true question is whether by a
process of construction, the amplitude of judicial discretion H
38 SUPREME COURT REPORTS [2020] 2 S.C.R.

A which is given to the High Court and the Court of Session, to
impose such conditions as they may think fit while granting
anticipatory bail, should be cut down by reading into the
statute conditions which are not to be found therein, like those
evolved by the High Court or canvassed by the learned
Additional Solicitor General. Our answer, clearly and
B
emphatically, is in the negative. The High Court and the Court
of Session to whom the application for anticipatory bail is
made ought to be left free in the exercise of their judicial
discretion to grant bail if they consider it fit so to do on the
particular facts and circumstances of the case and on such
C conditions as the case may warrant. Similarly, they must be
left free to refuse bail if the circumstances of the case so
warrant, on considerations similar to those mentioned in
Section 437 or which are generally considered to be relevant
under Section 439 of the Code.
D xxx xxx xxx xxx xxx xxx xxx xxx
18. According to the sixth proposition framed by the
High Court, the discretion under Section 438 cannot be
exercised in regard to offences punishable with death or
imprisonment for life unless, the court at the stage of granting
E anticipatory bail, is satisfied that such a charge appears to
be false or groundless. Now, Section 438 confers on the High
Court and the Court of Session the power to grant anticipatory
bail if the applicant has reason to believe that he may be
arrested on an accusation of having committed “a non-bailable
offence”. We see no warrant for reading into this provision
F the conditions subject to which bail can be granted under
Section 437(1) of the Code. That section, while conferring
the power to grant bail in cases of non-bailable offences,
provides by way of an exception that a person accused or
suspected of the commission of a non-bailable offence “shall
G not be so released” if there appear to be reasonable grounds
for believing that he has been guilty of an offence punishable
with death or imprisonment for life. If it was intended that the
exception contained in Section 437(1) should govern the
grant of relief under Section 438(1), nothing would have been
easier for the legislature than to introduce into the latter
H
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 39
[M. R. SHAH, J.]

section a similar provision. We have already pointed out the A
basic distinction between these two sections. Section 437
applies only after a person, who is alleged to have committed
a non-bailable offence, is arrested or detained without warrant
or appears or is brought before a court. Section 438 applies
before the arrest is made and, in fact, one of the pre-conditions
B
of its application is that the person, who applies for relief
under it, must be able to show that he has reason to believe
that “he may be arrested”, which plainly means that he is not
yet arrested. The nexus which this distinction bears with the
grant or refusal of bail is that in cases falling under Section
437, there is some concrete data on the basis of which it is C
possible to show that there appear to be reasonable grounds
for believing that the applicant has been guilty of an offence
punishable with death or imprisonment for life. In cases falling
under Section 438 that stage is still to arrive and, in the
generality of cases thereunder, it would be premature and
D
indeed difficult to predicate that there are or are not
reasonable grounds for so believing. The foundation of the
belief spoken of in Section 437(1), by reason of which the
court cannot release the applicant on bail is, normally, the
credibility of the allegations contained in the first information
report. In the majority of cases falling under Section 438, E
that data will be lacking for forming the requisite belief. If at
all the conditions mentioned in Section 437 are to be read
into the provisions of Section 438, the transplantation shall
have to be done without amputation. That is to say, on the
reasoning of the High Court, Section 438(1) shall have to be
F
read as containing the clause that the applicant “shall not”
be released on bail “if there appear reasonable grounds for
believing that he has been guilty of an offence punishable
with death or imprisonment for life”. In this process one shall
have overlooked that whereas, the power under Section 438(1)
can be exercised if the High Court or the Court of Session G
“thinks fit” to do so, Section 437(1) does not confer the power
to grant bail in the same wide terms The expression “if it thinks
fit”, which occurs in Section 438(1) in relation to the power
of the High Court or the Court of Session, is conspicuously
absent in Section 437(1). We see no valid reason for rewriting
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40 SUPREME COURT REPORTS [2020] 2 S.C.R.

A Section 438 with a view, not to expanding the scope and ambit
of the discretion conferred on the High Court and the Court
of Session but, for the purpose of limiting it. Accordingly, we
are unable to endorse the view of the High Court that
anticipatory bail cannot be granted in respect of offences
like criminal breach of trust for the mere reason that the
B
punishment provided therefor is imprisonment for life.
Circumstances may broadly justify the grant of bail in such
cases too, though of course, the court is free to refuse
anticipatory bail in any case if there is material before it
justifying such refusal.
C 19. A great deal has been said by the High Court on the
fifth proposition framed by it, according to which, inter alia,
the power under Section 438 should not be exercised if the
investigating agency can make a reasonable claim that it can
secure incriminating material from information likely to be
D received from the offender under Section 27 of the Evidence
Act. According to the High Court, it is the right and the duty
of the police to investigate into offences brought to their notice
and therefore, courts should be careful not to exercise their
powers in a manner which is calculated to cause interference
therewith. ….. An order of anticipatory bail does not in any
E way, directly or indirectly, take away from the police their
right to investigate into charges made or to be made against
the person released on bail. In fact, two of the usual conditions
incorporated in a direction issued under Section 438(1) are
those recommended in sub-section (2)(i) and (ii) which require
F the applicant to cooperate with the police and to assure that
he shall not tamper with the witnesses during and after the
investigation. While granting relief under Section 438(1),
appropriate conditions can be imposed under Section 438(2)
so as to ensure an uninterrupted investigation. One of such
conditions can even be that in the event of the police making
G out a case of a likely discovery under Section 27 of the
Evidence Act, the person released on bail shall be liable to
be taken in police custody for facilitating the discovery.
Besides, if and when the occasion arises, it may be possible
for the prosecution to claim the benefit of Section 27 of the
H Evidence Act in regard to a discovery of facts made in
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 41
[M. R. SHAH, J.]

pursuance of information supplied by a person released on A
bail by invoking the principle stated by this Court in State of
U.P. v. Deoman Upadhyaya [AIR 1960 SC 1125 : (1961) 1
SCR 14, 26 : 1960 Cri LJ 1504] to the effect that when a
person not in custody approaches a police officer
investigating an offence and offers to give information leading
B
to the discovery of a fact, having a bearing on the charge
which may be made against him, he may appropriately be
deemed so have surrendered himself to the police. The broad
foundation of this rule is stated to be that Section 46 of the
Code of Criminal Procedure does not contemplate any
formality before a person can be said to be taken in custody: C
submission to the custody by word or action by a person is
sufficient. For similar reasons, we are unable to agree that
anticipatory bail should be refused if a legitimate case for
the remand of the offender to the police custody under Section
167(2) of the Code is made out by the investigating agency.
D
20. It is unnecessary to consider the third proposition
of the High Court in any great details because we have already
indicated that there is no justification for reading into Section
438 the limitations mentioned in Section 437. The High Court
says that such limitations are implicit in Section 438 but, with
respect, no such implications arise or can be read into that E
section. The plenitude of the section must be given its full
play.
21. The High Court says in its fourth proposition that
in addition to the limitations mentioned in Section 437, the
petitioner must make out a “special case” for the exercise of F
the power to grant anticipatory bail. This, virtually, reduces
the salutary power conferred by Section 438 to a dead letter.
In its anxiety, otherwise just, to show that the power conferred
by Section 438 is not “unguided or uncanalised”, the High
Court has subjected that power to a restraint which will have G
the effect of making the power utterly unguided. To say that
the applicant must make out a “special case” for the exercise
of the power to grant anticipatory bail is really to say nothing.
The applicant has undoubtedly to make out a case for the
grant of anticipatory bail. But one cannot go further and say
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42 SUPREME COURT REPORTS [2020] 2 S.C.R.

A that he must make out a “special case”. We do not see why
the provisions of Section 438 should be suspected as
containing something volatile or incendiary, which needs to
be handled with the greatest care and caution imaginable. A
wise exercise of judicial power inevitably takes care of the
evil consequences which are likely to flow out of its
B
intemperate use. Every kind of judicial discretion, whatever
may be the nature of the matter in regard to which it is required
to be exercised, has to be used with due care and caution. In
fact, an awareness of the context in which the discretion is
required to be exercised and of the reasonably foreseeable
C consequences of its use, is the hallmark of a prudent exercise
of judicial discretion. One ought not to make a bugbear of
the power to grant anticipatory bail.
22. By proposition No. 1 the High Court says that the
power conferred by Section 438 is “of an extraordinary
D character and must be exercised sparingly in exceptional cases
only”. It may perhaps be right to describe the power as of an
extraordinary character because ordinarily the bail is applied
for under Section 437 or Section 439. These sections deal
with the power to grant or refuse bail to a person who is in
the custody of the police and that is the ordinary situation in
E which bail is generally applied for. But this does not justify
the conclusion that the power must be exercised in exceptional
cases only, because it is of an extraordinary character. We
will really be saying once too often that all discretion has to
be exercised with care and circumspection, depending on
F circumstances justifying its exercise. It is unnecessary to travel
beyond it and subject the wide power conferred by the
legislature to a rigorous code of self-imposed limitations.
xxx xxx xxx xxx xxx xxx
25. ….. We agree, with respect, that the power conferred
G by Section 438 is of an extraordinary character in the sense
indicated above, namely, that it is not ordinarily resorted to
like the power conferred by Sections 437 and 439. We also
agree that the power to grant anticipatory bail should be
exercised with due care and circumspection but beyond that,
H it is not possible to agree with the observations made in
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 43
[M. R. SHAH, J.]

Balchand Jain [(1976) 4 SCC 572 : 1976 SCC (Cri) 689 : A
(1977) 2 SCR 52] in an altogether different context on an
altogether different point.
xxx xxx xxx xxx xxx xxx
33. We would, therefore, prefer to leave the High Court
and the Court of Session to exercise their jurisdiction under B
Section 438 by a wise and careful use of their discretion
which, by their long training and experience, they are ideally
suited to do. The ends of justice will be better served by trusting
these courts to act objectively and in consonance with
principles governing the grant of bail which are recognised C
over the years, than by divesting them of their discretion which
the legislature has conferred upon them, by laying down
inflexible rules of general application. It is customary, almost
chronic, to take a statute as one finds it on the ground that,
after all, “the legislature in its wisdom” has thought it fit to
use a particular expression. A convention may usefully grow D
whereby the High Court and the Court of Session may be
trusted to exercise their discretionary powers in their wisdom,
especially when the discretion is entrusted to their care by
the legislature in its wisdom. If they err, they are liable to be
corrected. E
xxx xxx xxx xxx xxx
35. Section 438(1) of the Code lays down a condition
which has to be satisfied before anticipatory bail can be
granted. The applicant must show that he has “reason to
believe” that he may be arrested for a non-bailable offence. F
The use of the expression “reason to believe” shows that the
belief that the applicant may be so arrested must be founded
on reasonable grounds. Mere ‘fear’ is not ‘belief”, for which
reason it is not enough for the applicant to show that he has
some sort of a vague apprehension that some one is going to G
make an accusation against him, in pursuance of which he
may be arrested. The grounds on which the belief of the
applicant is based that he may be arrested for a non-bailable
offence, must be capable of being examined by the court
objectively, because it is then alone that the court can
H
44 SUPREME COURT REPORTS [2020] 2 S.C.R.

A determine whether the applicant has reason to believe that
he may be so arrested. Section 438(1), therefore, cannot be
invoked on the basis of vague and general allegations, as if
to arm oneself in perpetuity against a possible arrest.
Otherwise, the number of applications for anticipatory bail
will be as large as, at any rate, the adult populace. Anticipatory
B
bail is a device to secure the individuals liberty; it is neither a
passport to the commission of crimes nor a shield against
any and all kinds of accusations, likely or unlikely
36. Secondly, if an application for anticipatory bail is
made to the High Court or the Court of Session it must apply
C its own mind to the question and decide whether a case has
been made out for granting such relief. It cannot leave the
question for the decision of the Magistrate concerned under
Section 437 of the Code, as and when an occasion arises.
Such a course will defeat the very object of Section 438.
D 37. Thirdly, the filing of a first information report is not
a condition precedent to the exercise of the power under
Section 438. The imminence of a likely arrest founded on a
reasonable belief can be shown to exist even if an FIR is not
yet filed.
E 38. Fourthly, anticipatory bail can be granted even after
an FIR is filed, so long as the applicant has not been arrested.
39. Fifthly, the provisions of Section 438 cannot be
invoked after the arrest of the accused. The grant of
“anticipatory bail” to an accused who is under arrest involves
F a contradiction in terms, insofar as the offence or offences
for which he is arrested, are concerned. After arrest, the
accused must seek his remedy under Section 437 or Section
439 of the Code, if he wants to be released on bail in respect
of the offence or offences for which he is arrested.
G 40. We have said that there is one proposition formulated
by the High Court with which we are inclined to agree. That
is proposition (2). We agree that a ‘blanket order ’ of
anticipatory bail should not generally be passed. This flows
from the very language of the section which, as discussed
above, requires the applicant to show that he has “reason to
H
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 45
[M. R. SHAH, J.]

believe” that he may be arrested. A belief can be said to be A
founded on reasonable grounds only if there is something
tangible to go by on the basis of which it can be said that the
applicant’s apprehension that he may be arrested is genuine.
That is why, normally, a direction should not issue under
Section 438(1) to the effect that the applicant shall be released
on bail “whenever arrested for whichever offence B
whatsoever”. That is what is meant by a ‘blanket order’ of
anticipatory bail, an order which serves as a blanket to cover
or protect any and every kind of allegedly unlawful activity,
in fact any eventuality, likely or unlikely regarding which, no
concrete information can possibly be had. The rationale of a C
direction under Section 438(1) is the belief of the applicant
founded on reasonable grounds that he may be arrested for
a non-bailable offence. It is unrealistic to expect the applicant
to draw up his application with the meticulousness of a
pleading in a civil case and such is not requirement of the
section. But specific events and facts must be disclosed by D
the applicant in order to enable the court to judge of the
reasonableness of his belief, the existence of which is the
sine qua non of the exercise of power conferred by the section.
41. Apart from the fact that the very language of the
statute compels this construction, there is an important E
principle involved in the insistence that facts, on the basis of
which a direction under Section 438(1) is sought, must be
clear and specific, not vague and general. It is only by the
observance of that principle that a possible conflict between
the right of an individual to his liberty and the right of the
police to investigate into crimes reported to them can be F
avoided. A blanket order of anticipatory bail is bound to cause
serious interference with both the right and the duty of the
police in the matter of investigation because, regardless of
what kind of offence is alleged to have been committed by
the applicant and when, an order of bail which comprehends G
allegedly unlawful activity of any description whatsoever, will
prevent the police from arresting the applicant even if he
commits, say, a murder in the presence of the public. Such an
order can then become a charter of lawlessness and a weapon
to stifle prompt investigation into offences which could not
possibly be predicated when the order was passed. Therefore, H
46 SUPREME COURT REPORTS [2020] 2 S.C.R.

A the court which grants anticipatory bail must take care to
specify the offence or offences in respect of which alone the
order will be effective. The power should not be exercised in
a vacuum.
42. There was some discussion before us on certain
B minor modalities regarding the passing of bail orders under
Section 438(1). Can an order of bail be passed under the
section without notice to the Public Prosecutor? It can be.
But notice should issue to the Public Prosecutor or the
Government Advocate forthwith and the question of bail
should be re-examined in the light of the respective contentions
C of the parties. The ad interim order too must conform to the
requirements of the section and suitable conditions should be
imposed on the applicant even at that stage. Should the
operation of an order passed under Section 438(1) be limited
in point of time? Not necessarily. The court may, if there are
reasons for doing so, limit the operation of the order to a
D
short period until after the filing of an FIR in respect of the
matter covered by the order. The applicant may in such cases
be directed to obtain an order of bail under Section 437 or
439 of the Code within a reasonably short period after the
filing of the FIR as aforesaid. But this need not be followed
E as an invariable rule. The normal rule should be not to limit
the operation of the order in relation to a period of time.
43. During the last couple of years this Court, while
dealing with appeals against orders passed by various High
Courts, has granted anticipatory bail to many a person by
F imposing conditions set out in Section 438(2) (i), (ii) and (iii).
The court has, in addition, directed in most of those cases
that (a) the applicant should surrender himself to the police
for a brief period if a discovery is to be made under Section
27 of the Evidence Act or that he should be deemed to have
surrendered himself if such a discovery is to be made. In
G certain exceptional cases, the court has, in view of the material
placed before it, directed that the order of anticipatory bail
will remain in operation only for a week or so until after the
filing of the FIR in respect of matters covered by the order.
These orders, on the whole, have worked satisfactorily,
causing the least inconvenience to the individuals concerned
H
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 47
[M. R. SHAH, J.]

and least interference with the investigational rights of the A
police. The court has attempted through those orders to strike
a balance between the individual’s right to personal freedom
and the investigational rights of the police. The appellants
who were refused anticipatory bail by various courts have
long since been released by this Court under Section 438(1)
of the Code.” B

7.4 The aforesaid decision of the Constitution Bench in the case
of Gurbaksh Singh Sibbia (supra) holds the field for number of years
and the same has been followed by all the Courts in the country. While
granting anticipatory bail, normally following conditions are imposed by
the court/courts which as such are in consonance with the decision of C
the Constitution Bench in the case of Gurbaksh Singh Sibbia (supra)
and Section 438(2) read with Section 437(3) of the Cr.P.C:
1. the applicant namely________________ shall furnish personal
bond of Rs.______________ with his recent self-attested photograph
and surety of the like amount on the following conditions at the satisfaction D
of the Investigating Officer;
2. the applicant shall remain present before the concerned police
station on ____________ between ____________________;
3. the applicant shall co-operate with the investigation and make
E
himself available for interrogation whenever required;
4. the applicant shall not directly or indirectly make any inducement,
threat or promise to any witness acquainted with the facts of the case so
as to dissuade him from disclosing such facts to the court or to any
police officer;
F
5. the applicant shall not obstruct or hamper the police investigation
and not to play mischief with the evidence collected or yet to be collected
by the police;
6. the applicant shall not leave the territory of ____________,
without prior permission of the court, till trial is over; G
7. the applicant shall mark his presence before concerned police
station on ______________ between ____________ for the period
of six months, from the date of this order;
8. the applicant shall maintain law and order;
H
48 SUPREME COURT REPORTS [2020] 2 S.C.R.

A 9. the applicant shall, at the time of execution of the Bond, furnish
his address and mobile number to the Investigating Officer, and the Court
concerned, and shall not change the residence till the final disposal of
the case;
10. the applicant shall surrender his passport, if any, before the
B Investigating Officer within a week and, if he does not possess any
passport, he shall file an affidavit to that effect before the Investigating
Officer;
11. the applicant shall regularly remain present during the trial,
and co-operate the Honourable Court to complete the trial for the above
C offences.
If breach of any of the above conditions is committed, the order
of anticipatory bail would be cancelled. It would be open to the
Investigating Officer to file an application for remand, and the concerned
Magistrate would decide it on merits, without influenced by the grant of
D anticipatory bail order.
However, in the case of Siddharam Satlingappa Mhetre (supra),
despite the specific observations by the Constitution Bench of this Court
in Gurbaksh Singh Sibbia (supra) that the normal rule should be not
to limit the operation of the order in relation to a period of time, in other
E words in an appropriate case and looking to the facts and circumstances
of the case and the stage at which the pre-arrest bail application was
made, the court concerned can limit the operation of the order in relation
to a period of time, on absolute misreading of the judgment in the case of
Gurbaksh Singh Sibbia (supra) and just contrary to the observations
made in paragraphs 42 and 43, an absolute proposition of law is laid
F down that the life of the order under Section 438, Cr. P.C. granting bail
cannot be curtailed. Despite the clear cut observations made by the
Constitution Bench in Gurbaksh Singh Sibbia (supra) made in
paragraphs 42 and 43, in the case of Salauddin Abdulsamad Shaikh
(supra), a three Judge Bench of this Court has observed and held that
G the order of “anticipatory bail” has to be necessarily limit in time frame.
In many cases subsequently the decision in the case of Salauddin
Abdulsamad Shaikh (supra) has been followed, despite the specific
observations made by the Constitution Bench in Gurbaksh Singh Sibbia
(supra) made in paragraphs 42 and 43 which, as such, are just contrary
to the view taken in subsequent decisions in the cases of Siddharam
H
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 49
[M. R. SHAH, J.]

Satlingappa Mhetre (supra) and Salauddin Abdulsamad Shaikh A
(supra). At this stage, it is required to be noted that in the case of
Salauddin Abdulsamad Shaikh (supra), this Court had not at all
considered the decision of the Constitution Bench in the case of Gurbaksh
Singh Sibbia (supra). It cannot be disputed that the decision of this
Court in the case of Gurbaksh Singh Sibbia(supra) is a Constitution
B
Bench decision which is binding unless it is upset by a larger Bench than
the Constitution Bench. Therefore, considering the decision of the
Constitution Bench of this Court in the case of Gurbaksh Singh Sibbia
(supra) and the relevant observations, reproduced hereinabove, the
decision of this Court in the case of Siddharam Satlingappa Mhetre
(supra) to the extent it takes the view that the life of the order under C
Section 438 Cr.P.C. cannot be curtailed is not a correct law in light of
the observations made by the Constitution Bench in paragraphs 42 and
43 in Gurbaksh Singh Sibbia (supra). The decision of this Court in the
case of Salauddin Abdulsamad Shaikh (supra) which takes an
extreme view that the order of “anticipatory bail” has to be necessarily
D
limited in time frame is also not a good law and is against and just contrary
to the decision of this Court in the case of Gurbaksh Singh Sibbia
(supra), which is a Constitution Bench judgment.
7.5 Thus, considering the observations made by the Constitution
Bench of this Court in the case of Gurbaksh Singh Sibbia (supra), the
court may, if there are reasons for doing so, limit the operation of the E
order to a short period only after filing of an FIR in respect of the matter
covered by order and the applicant may in such case be directed to
obtain an order of bail under Sections 437 or 439 of the Code within a
reasonable short period after the filing of the FIR. The Constitution Bench
has further observed that the same need not be followed as an invariable F
rule. It is further observed and held that normal rule should be not to limit
the operation of the order in relation to a period of time. We are of the
opinion that the conditions can be imposed by the concerned court while
granting pre-arrest bail order including limiting the operation of the order
in relation to a period of time if the circumstances so warrant, more
particularly the stage at which the “anticipatory bail” application is moved, G
namely, whether the same is at the stage before the FIR is filed or at the
stage when the FIR is filed and the investigation is in progress or at the
stage when the investigation is complete and the charge sheet is filed.
However, as observed hereinabove, the normal rule should be not to
limit the order in relation to a period of time. H
50 SUPREME COURT REPORTS [2020] 2 S.C.R.

A S. RAVINDRA BHAT, J.
1. I have gone through the reasoning and conclusions of Justice
M.R.Shah. I am in agreement with his judgment. However, I am
supplementing the conclusions arrived at by Shah, J with this separate
judgment since I am of the view that while there is no disagreement on
B the essential reasoning, some aspects need to be discussed, in addition.
2. The following questions have been referred to this larger bench
of five judges:
(1) Whether the protection granted to a person under Section 438
C Cr. PC 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.

D Background
3. First, a background. The judgment of a five-judge bench of this
court in Shri Gurbaksh Singh Sibbia and others v. State of Punjab1
considered the available views on the provision for anticipatory bail (a
concept not in existence till the enactment of the Criminal Procedure
E Code, 1973- hereafter “Cr. PC” or “the Code”). Section 438 enables
two classes of courts- a Court of Sessions and High Court, to issue
directions not to arrest a person, who apprehends arrest. Sibbia
comprehensively dealt with the history of the provision, the felt need
which resulted in its enactment, the observations and comments of the
41st Report of the Law Commission, which had suggested introduction
F of such a provision, and the efficacy of prevailing practices. In brief,
Sibbia (which this court would analyze in greater detail later) held that
the power (to grant anticipatory bail) is cast in wide terms and should
not be hedged in through narrow judicial interpretation. At the same
time, the larger bench (of five judges, which decided Sibbia) ruled that
G in given individual cases, courts could impose conditions which were
appropriate, having regard to the circumstances.
4. This reference is necessitated, because in the present case, a
bench of three judges, on 15th May 2018, noticed conflicting views

H
1 1980 (2) SCC 565
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 51
[S. RAVINDRA BHAT, J.]

regarding interpretation of the provision- Section 438. The court noticed, A
prima facie, that one line of judgments (Salauddin Abdulsamad Shaikh
v. State of Maharashtra2; K.L. Verma v. State & Anr3; Sunita Devi v.
State of Bihar & Anr4; Adri Dharan Das v. State of West Bengal5;
Nirmal Jeet Kaur v. State of M.P. & Anr6; HDFC Bank Limited v.
J.J. Mannan7; Satpal Singh v. the State of Punjab8 and Naresh Kumar
B
Yadav v Ravindra Kumar9 held that anticipatory bail orders should
invariably contain conditions, either with reference to time, or occurrence
of an event, such as filing of a charge sheet, in criminal proceedings, that
would define its time of operation, after which the individual concerned
would have to secure regular bail, under Section 439 Cr. PC. The court
also noticed, that on the other hand, the observations in Sibbia did not C
suggest such an inflexible approach. The second line of cases included
Siddharam Satlingappa Mhetre v. State of Maharashtra & Ors 10
and Bhadresh Bipinbhai Sheth v. State of Gujarat & Anr 11; these
held that no conditions ought to be imposed by the court, whilst granting
anticipatory bail, which was to inure and protect the individual indefinitely-
D
even when charges were framed in a given criminal case, leading to
trial- till the end of the trial.
5. The court, in Sibbia, elaborately dealt with the background
which led to the introduction of the provision for anticipatory bail. It took
note of the forty first report of the Law Commission, on whose
recommendations the provision was introduced. Sibbia traced the history E
of the provision, from the stage of the recommendation, to the draft bill
and later its enactment, observing as follows:
“4. The CrPC, 1898 did not contain any specific provision
corresponding to the present Section 438. Under the old Code,
there was a sharp difference of opinion amongst the various F
High Courts on the question as to whether courts had the
inherent power to pass an order of bail, in anticipation of
2 (1996 (1) SCC 667)
3 1998 (9) SCC 348
4 2005 (1) SCC 608
G
5 2005 (4) SCC 303

6 2004 (7) SCC 558

7 2010 (1) SCC 679

8 2018 SCC Online (SC 415

9 2008 (1) SCC 632

10 2011 (1) SCC 694

11 2016 (1) SCC 152 H
52 SUPREME COURT REPORTS [2020] 2 S.C.R.

A arrest, the preponderance of view being that it did not have
such power. The need for extensive amendments to the CrPC
was felt for a long time and various suggestions were made
in different quarters in order to make the Code more effective
and comprehensive. The Law Commission of India, in its 41st
Report dated September 24, 1969 pointed put the necessity
B
of introducing a provision in the Code enabling the High Court
and the Court of Session to grant “anticipate; bail”. It
observed in paragraph 39.9 of its report (Volume I) :
39.9. The suggestion for directing the release of a person on
bail prior to his arrest (commonly known as “anticipatory
C bail”) was carefully considered by us. Though there is a
conflict of judicial opinion about the power of a Court to-
grant anticipatory bail, the majority view is that there is no
such power under the existing provisions of the Code. The
necessity for granting anticipatory bail arises mainly because
D sometimes influential persons try to’ implicate their rivals in
false cases for the purpose of disgracing them or for other
purposes by getting them detained in jail for some days. In
recent times, with the accentuation of political rivalry, this
tendency is showing signs of steady increase. Apart from false
cases, where there are reasonable grounds for holding that a
E person accused of an offence is not likely to abscond, or
otherwise misuse his liberty while on bail, there seems no
justification to require him first to submit to custody, remain
in prison for some days and then apply for bail.
We recommend the acceptance of this suggestion. We are
F further of the view that this special power should be conferred
only on the High Court and the Court of Session, and that
the order should take effect at the time of arrest or thereafter.
In order to settle the details of this suggestion, the following
draft of a, new section is placed for consideration :
G
‘497A. (1) When any person has a reasonable
apprehension that he would be arrested on an accusation
of having committed a non-bailable offence, he may apply
to the High Court or the Court of Session for a direction
under this section. That Court may, in its discretion, direct
H that in the event of his arrest, he shall be released on bail.
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 53
[S. RAVINDRA BHAT, J.]

(2) A Magistrate taking cognizance of an offence against A
that person shall, while taking steps Under Section 204(1),
either issue summons or a bailable warrant as indicated
in the direction of the Court under Sub-section (1).
(3) if any person in respect of whom such a direction is
made is arrested without warrant by an officer in charge B
of a police station on an accusation of having committed
that; offence, and is prepared either at the time of arrest
or at any time while in the custody of such officer to give
bail, such person shall be released on bail.”
We considered carefully the question of laying down in the C
statute certain conditions under which alone anticipatory bail could
be granted. But we found that it may not be practicable to
exhaustively enumerate those conditions; and moreover, the laying
down of such conditions may be construed as prejudging (partially
at any rate) the whole case. Hence we would leave it to the
discretion, of the; court and prefer not to fetter such discretion in D
the statutory provision itself. Superior Courts will, undoubtedly,
exercise their discretion properly, and not make any observations
in the order granting anticipatory bail which will have a tendency
to prejudice the fair trial of the accused.’
5. The suggestion made by the Law Commission was, in E
principle, accepted by the Central Government which introduced
Clause 447 in the Draft Bill of the CrPC, 1970 with a view to
conferring an express power on the High Court and the Court of
Session to grant anticipatory bail. That Clause read thus :
‘447. (1) When any person has reason to believe that he would F
be arrested on an accusation of having committed a non-
bailable offence, he may apply to the High Court or the Court
of Session for a direction under this section; and that Court
may, if it thinks fit, direct that in the event of such arrest, he
shall be released on bail. G
(2) If such person is thereafter arrested without warrant by
an officer in charge of a police station on such accusation,
and is prepared either at the lime of arrest or at any time
while in the custody of such officer to give bail, he shall be
released on bail; and if a Magistrate taking cognizance of
H
54 SUPREME COURT REPORTS [2020] 2 S.C.R.

A such offence decides that a warrant should issue in the first
instance against that person, he shall issue a bailable warrant
in conformity with the direction of the Court under Sub-section
(1).’
6. The Law Commission, in paragraph 31 of its 48th Report
B (1972), made the following comments on the aforesaid Clause.
‘31. The Bill introduces a provision for the grant of
anticipatory bail. This is substantially in accordance with the
recommendation made by the previous Commission. We agree
that this would be a useful addition, though we must add that
C it is in very exceptional cases that such a power should be
exercised.
We are further of the view that in order to ensure that
the provision is not put to abuse at the instance of
unscrupulous petitioners, the final order should be made only
D after notice to the Public Prosecutor. The initial order should
only be an interim one. Further, the relevant section should
make it clear that the direction can be issued only for reasons
to be recorded, and if the court is satisfied that such a
direction is necessary in the interests of justice.

E It will also be convenient to provide that notice of the interim
order as well as of the final orders will be given to the
Superintendent of Police forthwith.’
Clause 447 of the Draft Bill of 1970 was enacted with certain
modifications and became Section 438 of the CrPC, 1973
F which we have extracted at the outset of this judgment.”
6. The context of Sibbia was the correctness of a decision of the
Full Bench of the Punjab and Haryana High Court, which restrictively
interpreted Section 438 and held that the power under Section 438, “is
extra-ordinary” and must be exercised sparingly in exceptional cases
only; that it does not empower the grant of anticipatory bail in a blanket
G
manner, in respect of offences not yet committed or with regard to
accusations not yet levelled; that it is not an unguided power, but subject
to limitations in Section 437 – which are implicit and must be read into
Section 438.The Full Bench also held that the petitioner must “must
make out a special case for the exercise of the power to grant
H anticipatory bail”; and further that where a legitimate case for remand
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 55
[S. RAVINDRA BHAT, J.]

to police custody is made or a reasonable claim to secure incriminating A
material from information likely to be received from the offender “under
Section 27 of the Evidence Act can be made out, the power Under
Section 438 should not be exercised.” The full bench held that Section
438 cannot be availed in respect of offences punishable with death or
life imprisonment “unless the court at that very stage is satisfied that
B
such a charge appears to be false or groundless.” Likewise, in larger
public interest and the state’s interest Section 438 cannot be resorted to
in “economic offences involving blatant corruption at the higher
rungs of the executive and political power” and that
“(8) Mere general allegation of mala fides in the petition are
inadequate. The court must be satisfied on materials before it C
that the allegations of mala fides are substantial and the
accusation appears to be false and groundless.”
7. Sibbia discussed this issue and held that the narrow, restricted
interpretation of Section 438 was not warranted. The court disapproved
the Punjab High Court Full Bench decision; the five judge Bench ruled D
as follows:
“…The provisions of Sections 437 and 439 furnished a
convenient model for the legislature to copy while enacting
Section 438. If it has not done so and has departed from a
pattern which could easily be adopted with the necessary E
modifications, it would be wrong to refuse to give to the
departure its full effect by assuming that it was not intended
to serve any particular or specific purpose. The departure,
in our opinion, was made advisedly and purposefully:
Advisedly, at least in part, because of the 41st Report of the F
Law Commission which, while pointing out the necessity of
introducing a provision in the Code enabling the High Court
and the Court of Session to grant anticipatory bail, said in
para 39.9 that it had “considered carefully the question of
laying down in the statute certain conditions under which
alone anticipatory bail could be granted” but had come to G
the conclusion that the question of granting such bail should
be left “to the discretion of the court” and ought not to be
fettered by the statutory provision itself, since the discretion
was being conferred upon superior courts which were
expected to exercise it judicially. The legislature conferred a H
56 SUPREME COURT REPORTS [2020] 2 S.C.R.

A wide discretion on the High Court and the Court of Session
to grant anticipatory bail because it evidently felt, firstly, that
it would be difficult to enumerate the conditions under which
anticipatory bail should or should not be granted and
secondly, because the intention was to allow the higher courts
in the echelon a somewhat free hand in the grant of relief in
B
the nature of anticipatory bail. That is why, departing from
the terms of Sections 437 and 439, Section 438(1) uses the
language that the High Court or the Court of Session “may,
if it thinks fit” direct that the applicant be released on bail.
Sub-section (2) of Section 438 is a further and clearer
C manifestation of the same legislative intent to confer a wide
discretionary power to grant anticipatory bail. It provides
that the High Court or the Court of Session, while issuing a
direction for the grant of anticipatory bail, “may include such
conditions in such directions in the light of the facts of the
particular case, as it may think fit”, including the conditions
D
which are set out in clauses (i) to (iv) of sub-section (2). The
proof of legislative intent can best be found in the language
which the legislature uses. Ambiguities can undoubtedly be
resolved by resort to extraneous aids but words, as wide and
explicit as have been used in Section 438, must be given their
E full effect, especially when to refuse to do so will result in
undue impairment of the freedom of the individual and the
presumption of innocence. It has to be borne in mind that
anticipatory bail is sought when there is a mere apprehension
of arrest on the accusation that the applicant has committed
a non- bailable offence. A person who has yet to lose his
F
freedom by being arrested asks for freedom in the event of
arrest. That is the stage at which it is imperative to protect his
freedom, insofar as one may, and to give full play to the
presumption that he is innocent. In fact, the stage at which
anticipatory bail if generally sought brings about its striking
G dissimilarity with the situation in which a person who is
arrested for the commission of a non-bailable offence asks
for bail. In the latter situation, adequate data is available to
the court, or can be called for by it, in the light of which it
can grant or refuse relief and while granting it, modify it by
the imposition of all or any of the conditions mentioned in
H Section 437.
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 57
[S. RAVINDRA BHAT, J.]

13. This is not to say that anticipatory bail, if granted, must A
be granted without the imposition of any conditions. That will
be plainly contrary to the very terms of Section 438. Though
sub-section (1) of that section says that the court “may, if it
thinks fit” issue the necessary direction for bail, sub-section
(2) confers on the court the power to include such conditions
B
in the direction as it may think fit in the light of the facts of
the particular case, including the conditions mentioned in
clauses (i) to (iv) of that sub-section. The controversy therefore
is not whether the court has the power to impose conditions
while granting anticipatory bail. It clearly and expressly has
that power. The true question is whether by a process of C
construction, the amplitude of judicial discretion which is
given to the High Court and the Court of Session, to impose
such conditions as they may think fit while granting
anticipatory bail, should be cut down by reading into the
statute conditions which are not to be found therein, like those
D
evolved by the High Court or canvassed by the learned
Additional Solicitor General. Our answer, clearly and
emphatically, is in the negative. The High Court and the Court
of Session to whom the application for anticipatory bail is
made ought to be left free in the exercise of their judicial
discretion to grant bail if they consider it fit so to do on the E
particular facts and circumstances of the case and on such
conditions as the case may warrant. Similarly, they must be
left free to refuse bail if the circumstances of the case so
warrant, on considerations similar to those mentioned in
Section 437 or which are generally considered to be relevant
F
under Section 439 of the Code.
14. Generalizations on matters which rest on discretion and
the attempt to discover formulae of universal application when
facts are bound to differ from case to case frustrate the very
purpose of conferring discretion. No two cases are alike on
facts and therefore, courts have to be allowed a little free G
play in the joints if the conferment of discretionary power is
to be meaningful. There is no risk involved in entrusting a
wide discretion to the Court of Session and the High Court in
granting anticipatory bail because, firstly, these are higher
courts manned by experienced persons, secondly, their orders H
58 SUPREME COURT REPORTS [2020] 2 S.C.R.

A are not final but are open to appellate or revisional scrutiny
and above all because, discretion has always to be exercised
by courts judicially and not according to whim, caprice or
fancy. On the other hand, there is a risk in foreclosing
categories of cases in which anticipatory bail may be allowed
because life throws up unforeseen possibilities and offers new
B
challenges. Judicial discretion has to be free enough to be
able to take these possibilities in its stride and to meet these
challenges. While dealing with the necessity for preserving
judicial discretion unhampered by rules of general
application.
C ———— ——————— ———
19. A great deal has been said by the High Court on the fifth
proposition framed by it, according to which, inter alia, the
power under Section 438 should not be exercised if the
investigating agency can make a reasonable claim that it can
D secure incriminating material from information likely to be
received from the offender under Section 27 of the Evidence
Act. According to the High Court, it is the right and the duty
of the police to investigate into offences brought to their notice
and therefore, courts should be careful not to exercise their
powers in a manner which is calculated to cause interference
E therewith. It is true that the functions of the judiciary and the
police are in a sense complementary and not overlapping.
And, as observed by the Privy Council in King-Emperor v.
Khwaja Nazir Ahmed [AIR 1945 PC 18 : (1943-44) 71 IA
203 : 46 Cri LJ 413] :
F “Just as it is essential that every one accused of a crime
should have free access to a Court of justice so that he
may be duly acquitted if found not guilty of the offence
with which he is charged, so it is of the utmost importance
that the judiciary should not interfere with the police in
G matters which are within their province and into which the
law imposes on them the duty of inquiry .... The functions
of the judiciary and the police are complementary, not
overlapping, and the combination of the individual liberty
with a due observance of law and order is only to be
obtained by leaving each to exercise its own function,…”
H
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 59
[S. RAVINDRA BHAT, J.]

But these remarks, may it be remembered, were made by A
the Privy Council while rejecting the view of the Lahore
High Court that it had inherent jurisdiction under the old
Section 561-A of the Criminal Procedure Code, to quash
all proceedings taken by the police in pursuance of two
first information reports made to them. An order quashing
B
such proceedings puts an end to the proceedings with the
inevitable result that all investigation into the accusation
comes to a halt. Therefore, it was held that the court cannot,
in the exercise of its inherent powers, virtually direct that
the police shall not investigate into the charges contained
in the FIR. We are concerned here with a situation of an C
altogether different kind. An order of anticipatory bail does
not in any way, directly or indirectly, take away from the
police their right to investigate into charges made or to be
made against the person released on bail. In fact, two of
the usual conditions incorporated in a direction issued
D
under Section 438(1) are those recommended in sub-section
(2)(i) and (ii) which require the applicant to cooperate with
the police and to assure that he shall not tamper with the
witnesses during and after the investigation. While granting
relief under Section 438(1), appropriate conditions can
be imposed under Section 438(2) so as to ensure an E
uninterrupted investigation. One of such conditions can
even be that in the event of the police making out a case of
a likely discovery under Section 27 of the Evidence Act,
the person released on bail shall be liable to be taken in
police custody for facilitating the discovery. Besides, if
F
and when the occasion arises, it may be possible for the
prosecution to claim the benefit of Section 27 of the
Evidence Act in regard to a discovery of facts made in
pursuance of information supplied by a person released
on bail by invoking the principle stated by this Court in
State of U.P. v. Deoman Upadhyaya [AIR 1960 SC 1125 : G
(1961) 1 SCR 14, 26 : 1960 Cri LJ 1504] to the effect that
when a person not in custody approaches a police officer
investigating an offence and offers to give information
leading to the discovery of a fact, having a bearing on the
charge which may be made against him, he may
H
60 SUPREME COURT REPORTS [2020] 2 S.C.R.

A appropriately be deemed so have surrendered himself to
the police. The broad foundation of this rule is stated to
be that Section 46 of the Code of Criminal Procedure does
not contemplate any formality before a person can be said
to be taken in custody: submission to the custody by word
or action by a person is sufficient. For similar reasons, we
B
are unable to agree that anticipatory bail should be refused
if a legitimate case for the remand of the offender to the
police custody under Section 167(2) of the Code is made
out by the investigating agency.
—————— ———— ———-
C
21. The High Court says in its fourth proposition that in
addition to the limitations mentioned in Section 437, the
petitioner must make out a “special case” for the exercise
of the power to grant anticipatory bail. This, virtually,
reduces the salutary power conferred by Section 438 to a
D dead letter. In its anxiety, otherwise just, to show that the
power conferred by Section 438 is not “unguided or
uncanalised”, the High Court has subjected that power to
a restraint which will have the effect of making the power
utterly unguided. To say that the applicant must make out
E a “special case” for the exercise of the power to grant
anticipatory bail is really to say nothing. The applicant
has undoubtedly to make out a case for the grant of
anticipatory bail. But one cannot go further and say that
he must make out a “special case”. We do not see why the
provisions of Section 438 should be suspected as
F containing something volatile or incendiary, which needs
to be handled with the greatest care and caution
imaginable. A wise exercise of judicial power inevitably
takes care of the evil consequences which are likely to
flow out of its intemperate use. Every kind of judicial
G discretion, whatever may be the nature of the matter in
regard to which it is required to be exercised, has to be
used with due care and caution. In fact, an awareness of
the context in which the discretion is required to be exercised
and of the reasonably foreseeable consequences of its use,
is the hallmark of a prudent exercise of judicial discretion.
H
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 61
[S. RAVINDRA BHAT, J.]

One ought not to make a bugbear of the power to grant A
anticipatory bail.
———— ————— ————-
22. By proposition No. 1 the High Court says that the power
conferred by Section 438 is “of an extraordinary character
and must be exercised sparingly in exceptional cases only”. B
It may perhaps be right to describe the power as of an
extraordinary character because ordinarily the bail is
applied for under Section 437 or Section 439. These
sections deal with the power to grant or refuse bail to a
person who is in the custody of the police and that is the C
ordinary situation in which bail is generally applied for.
But this does not justify the conclusion that the power must
be exercised in exceptional cases only, because it is of an
extraordinary character. We will really be saying once too
often that all discretion has to be exercised with care and
circumspection, depending on circumstances justifying its D
exercise. It is unnecessary to travel beyond it and subject
the wide power conferred by the legislature to a rigorous
code of self-imposed limitations.
———— ————— ————-
E
26. We find a great deal of substance in Mr Tarkunde’s
submission 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, especially when no such restrictions have been
imposed by the legislature in the terms of that section. F
Section 438 is a procedural provision which is concerned
with the personal liberty of the individual, who is entitled
to the benefit of the presumption of innocence since he is
not, on the date of his application for anticipatory bail,
convicted of the offence in respect of which he seeks bail. G
An over-generous infusion of constraints and conditions
which are not to be found in Section 438 can make its
provisions constitutionally vulnerable since the right to
personal freedom cannot be made to depend on compliance
with unreasonable restrictions. The beneficent provision
contained in Section 438 must be saved, not jettisoned. H
62 SUPREME COURT REPORTS [2020] 2 S.C.R.

A No doubt can linger after the decision in Maneka Gandhi
[Maneka Gandhi v. Union of India, (1978) 1 SCC 248] ,
that in order to meet the challenge of Article 21 of the
Constitution, the procedure established by law for
depriving a person of his liberty must be fair, just and
reasonable. Section 438, in the form in which it is conceived
B
by the legislature, is open to no exception on the ground
that it prescribes a procedure which is unjust or unfair. We
ought, at all costs, to avoid throwing it open to a
Constitutional challenge by reading words in it which are
not to be found therein.
C ———— ————— ————-
33. We would, therefore, prefer to leave the High Court
and the Court of Session to exercise their jurisdiction under
Section 438 by a wise and careful use of their discretion
which, by their long training and experience, they are
D ideally suited to do. The ends of justice will be better served
by trusting these courts to act objectively and in
consonance with principles governing the grant of bail
which are recognised over the years, than by divesting them
of their discretion which the legislature has conferred upon
E them, by laying down inflexible rules of general
application. It is customary, almost chronic, to take a statute
as one finds it on the ground that, after all, “the legislature
in its wisdom” has thought it fit to use a particular
expression. A convention may usefully grow whereby the
High Court and the Court of Session may be trusted to
F exercise their discretionary powers in their wisdom,
especially when the discretion is entrusted to their care by
the legislature in its wisdom. If they err, they are liable to
be corrected.
34. This should be the end of the matter, but it is necessary
G to clarify a few points which have given rise to certain
misgivings.
35. Section 438(1) of the Code lays down a condition which
has to be satisfied before anticipatory bail can be granted.
The applicant must show that he has “reason to believe”
H that he may be arrested for a non-bailable offence. The
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 63
[S. RAVINDRA BHAT, J.]

use of the expression “reason to believe” shows that the A
belief that the applicant may be so arrested must be
founded on reasonable grounds. Mere ‘fear’ is not ‘belief ’,
for which reason it is not enough for the applicant to show
that he has some sort of a vague apprehension that some
one is going to make an accusation against him, in
B
pursuance of which he may be arrested. The grounds on
which the belief of the applicant is based that he may be
arrested for a non-bailable offence, must be capable of
being examined by the court objectively, because it is then
alone that the court can determine whether the applicant
has reason to believe that he may be so arrested. Section C
438(1), therefore, cannot be invoked on the basis of vague
and general allegations, as if to arm oneself in perpetuity
against a possible arrest. Otherwise, the number of
applications for anticipatory bail will be as large as, at
any rate, the adult populace. Anticipatory bail is a device
D
to secure the individuals liberty; it is neither a passport to
the commission of crimes nor a shield against any and all
kinds of accusations, likely or unlikely
36. Secondly, if an application for anticipatory bail is made
to the High Court or the Court of Session it must apply its
own mind to the question and decide whether a case has E
been made out for granting such relief. It cannot leave the
question for the decision of the Magistrate concerned under
Section 437 of the Code, as and when an occasion arises.
Such a course will defeat the very object of Section 438.
37. Thirdly, the filing of a first information report is not a F
condition precedent to the exercise of the power under
Section 438. The imminence of a likely arrest founded on
a reasonable belief can be shown to exist even if an FIR is
not yet filed.
38. Fourthly, anticipatory bail can be granted even after G
an FIR is filed, so long as the applicant has not been
arrested.
39. Fifthly, the provisions of Section 438 cannot be invoked
after the arrest of the accused. The grant of “anticipatory
bail” to an accused who is under arrest involves a H
64 SUPREME COURT REPORTS [2020] 2 S.C.R.

A contradiction in terms, insofar as the offence or offences
for which he is arrested, are concerned. After arrest, the
accused must seek his remedy under Section 437 or Section
439 of the Code, if he wants to be released on bail in respect
of the offence or offences for which he is arrested.
B 40. We have said that there is one proposition formulated
by the High Court with which we are inclined to agree.
That is proposition (2). We agree that a ‘blanket order’ of
anticipatory bail should not generally be passed. This flows
from the very language of the section which, as discussed
above, requires the applicant to show that he has “reason
C to believe” that he may be arrested. A belief can be said to
be founded on reasonable grounds only if there is
something tangible to go by on the basis of which it can be
said that the applicant’s apprehension that he may be
arrested is genuine. That is why, normally, a direction should
D not issue under Section 438(1) to the effect that the
applicant shall be released on bail “whenever arrested for
whichever offence whatsoever”. That is what is meant by
a ‘blanket order’ of anticipatory bail, an order which serves
as a blanket to cover or protect any and every kind of
allegedly unlawful activity, in fact any eventuality, likely
E or unlikely regarding which, no concrete information can
possibly be had. The rationale of a direction under Section
438(1) is the belief of the applicant founded on reasonable
grounds that he may be arrested for a non-bailable
offence. It is unrealistic to expect the applicant to draw up
F his application with the meticulousness of a pleading in a
civil case and such is not requirement of the section. But
specific events and facts must be disclosed by the applicant
in order to enable the court to judge of the reasonableness
of his belief, the existence of which is the sine qua non of
the exercise of power conferred by the section.
G
41. Apart from the fact that the very language of the statute
compels this construction, there is an important principle
involved in the insistence that facts, on the basis of which
a direction under Section 438(1) is sought, must be clear
and specific, not vague and general. It is only by the
H observance of that principle that a possible conflict between
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 65
[S. RAVINDRA BHAT, J.]

the right of an individual to his liberty and the right of the A
police to investigate into crimes reported to them can be
avoided. A blanket order of anticipatory bail is bound to
cause serious interference with both the right and the duty
of the police in the matter of investigation because,
regardless of what kind of offence is alleged to have been
B
committed by the applicant and when, an order of bail
which comprehends allegedly unlawful activity of any
description whatsoever, will prevent the police from
arresting the applicant even if he commits, say, a murder
in the presence of the public. Such an order can then
become a charter of lawlessness and a weapon to stifle C
prompt investigation into offences which could not possibly
be predicated when the order was passed. Therefore, the
court which grants anticipatory bail must take care to
specify the offence or offences in respect of which alone
the order will be effective. The power should not be
D
exercised in a vacuum.
42. There was some discussion before us on certain minor
modalities regarding the passing of bail orders under
Section 438(1). Can an order of bail be passed under the
section without notice to the Public Prosecutor? It can be.
But notice should issue to the Public Prosecutor or the E
Government Advocate forthwith and the question of bail
should be re-examined in the light of the respective
contentions of the parties. The ad interim order too must
conform to the requirements of the section and suitable
conditions should be imposed on the applicant even at that F
stage. Should the operation of an order passed under
Section 438(1) be limited in point of time? Not necessarily.
The court may, if there are reasons for doing so, limit the
operation of the order to a short period until after the filing
of an FIR in respect of the matter covered by the order.
The applicant may in such cases be directed to obtain an G
order of bail under Section 437 or 439 of the Code within
a reasonably short period after the filing of the FIR as
aforesaid. But this need not be followed as an invariable
rule. The normal rule should be not to limit the operation
of the order in relation to a period of time. H
66 SUPREME COURT REPORTS [2020] 2 S.C.R.

A 43. During the last couple of years this Court, while dealing
with appeals against orders passed by various High
Courts, has granted anticipatory bail to many a person by
imposing conditions set out in Section 438(2) (i), (ii) and
(iii). The court has, in addition, directed in most of those
cases that (a) the applicant should surrender himself to
B
the police for a brief period if a discovery is to be made
under Section 27 of the Evidence Act or that he should be
deemed to have surrendered himself if such a discovery is
to be made. In certain exceptional cases, the court has, in
view of the material placed before it, directed that the order
C of anticipatory bail will remain in operation only for a
week or so until after the filing of the FIR in respect of
matters covered by the order. These orders, on the whole,
have worked satisfactorily, causing the least inconvenience
to the individuals concerned and least interference with
the investigational rights of the police. The court has
D
attempted through those orders to strike a balance between
the individual’s right to personal freedom and the
investigational rights of the police. The appellants who
were refused anticipatory bail by various courts have long
since been released by this Court under Section 438(1) of
E the Code.”
8. The judgment in Sibbia was understood and no apprehensions
were reflected about the duration of anticipatory bail orders, in the next
decade and a half. While so, in Salauddin Abdulsamad Shaikh V. State
of Maharashtra, (1996) 1 SCC 667 for the first time, a discordant note
F appears to have been struck. It was stated in Salauddin (supra) that
grant of anticipatory bail should not mean that the regular court, which is
to try the offender, would be “bypassed”. This court approved the
approach of the High Court, which had fixed the outer date for the
continuance of the bail and further directed that the petitioner, upon expiry,
should move the regular court of bail. Saluddin further held that the
G procedure followed by the High Court was correct, because:
“it must be realised that when the Court of Session or the
High Court is granting anticipatory bail, it is granted at a
stage when the investigation is incomplete and, therefore, it
is not informed about the nature of evidence against the
H alleged offender. It is therefore, necessary that such
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 67
[S. RAVINDRA BHAT, J.]

anticipatory bail orders should be of a limited duration only A
and 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”.”
B
9. The approach and reasoning in Salauddin was applied and
reiterated by this Court, in K.L. Verma v. State 12. That decision
(K.L. Verma) further explained the scope of the provision that till the
regular bail application of an accused, enjoying protection under Section
438 is pending before the regular court he need not surrender and his
protection will continue till the disposal of the regular bail application C
under Section 437 or Section 439, and that she or he has to move an
application (for regular bail) after expiry of a certain duration as directed
by the Court or if the Charge-sheet is submitted because regular courts
cannot be bypassed. It was held, in K.L. Verma that:
“3....This Court further observed that anticipatory bail is D
granted in anticipation of arrest in non- bailable cases, but
that does not mean that the regular court, which is to try the
offender, is sought to be bypassed...By this, what the Court
desired to convey was that an order of anticipatory bail does
not enure till the end of trial but it must be of limited duration E
as the regular court cannot be bypassed. The limited duration
must be determined having regard to the facts of the case and
the need to give the accused sufficient time to move the regular
court for bail and to give the regular court sufficient time to
determine the bail application. In other words, till the bail
application is disposed of one way or the other the court may F
allow the accused to remain on anticipatory bail. ….. This
decision was not intended to convey that as soon as the
accused persons are produced before the regular court the
anticipatory bail ends even if the court is yet to decide the
question of bail on merits. The decision in Salauddin case G
[(1996) 1 SCC 667] has to be so understood.”
10. Again, Sunita Devi; Nirmal Jeet Kaur and Adri Dharan
Das (supra) are three later decisions where this court applied the ratio

12 1998 (9) SCC 348 H
68 SUPREME COURT REPORTS [2020] 2 S.C.R.

A in Salauddin and echoed the concern that the “ protective umbrella” of
Section 438 cannot be extended beyond the time period indicated in the
previous case (Salauddin) or till the applicant avails remedies up to
high courts and that doing so would mean that the regular court would
be bypassed. The court reiterated that Section 439 would be rendered a
dead letter if the applicant is allowed the benefit of an order under Section
B
438 till, he avails the remedy of regular bail up to higher courts. In HDFC
Bank Ltd. v. J.J. Mannan,13 this court followed and applied the reasoning
in Salauddin, to the extent that certain limitations must be imposed,
while granting anticipatory bail. A new axiom too was added, that if the
police “made out” a case against the applicant and his name was included
C as an “accused in the charge-sheet, the accused has to surrender to
the custody of the court and pray for regular bail. On the strength
of an order granting anticipatory bail, an accused against whom
charge has been framed, cannot avoid appearing before the trial
court..” The court observed that:
D “19. The object of Section 438 CrPC has been repeatedly
explained by this 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 at
the same time the provisions of Section 438 Cr PC cannot
also be invoked to exempt the accused from surrendering to
E the court after the investigation is complete and if charge-
sheet is filed against him. Such an interpretation would amount
to violence to the provisions of Section 438 Cr PC, since even
though a charge-sheet may be filed against an accused and
charge is framed against him, he may still not appear before
F the court at all even during the trial.
20. Section 438 CrPC contemplates arrest at the stage of
investigation and provides a mechanism for an accused to be
released on bail should he be arrested during the period of
investigation. Once the investigation makes out a case against
G him and he is included as an accused in the charge-sheet, the
accused has to surrender to the custody of the court and pray
for regular bail. On the strength of an order granting
anticipatory bail, an accused against whom charge has been
framed, cannot avoid appearing before the trial court.”

H
13 2010 (1) SCC 679
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 69
[S. RAVINDRA BHAT, J.]

11. In the light of these decisions, which narrowed the scope and A
jurisdiction under Section 438, the judgment in Mhetre noticed that Sibbia
was by a Bench of five judges, which indicated that imposition of
restrictions for granting anticipatory bail was not always necessary. The
court, in Mhetre observed as follows:
“... Those orders are contrary to the law laid down by the B
judgment of the Constitution Bench in Sibbia’s case (supra).
According to the report of the National Police Commission,
the power of arrest is grossly abused and clearly violates the
personal liberty of the people, as enshrined under Article 21
of the Constitution, then the courts need to take serious notice
of it. When conviction rate is admittedly less than 10%, then C
the police should be slow in arresting the accused. The courts
considering the bail application should try to maintain fine
balance between the societal interest vis-à-vis personal liberty
while adhering to the fundamental principle of criminal
jurisprudence that the accused that the accused is presumed D
to be innocent till he is found guilty by the competent court.
94. The complaint filed against the accused needs to be
thoroughly examined including the aspect whether the
complainant has filed false or frivolous complaint on earlier
occasion. The court should also examine the fact whether E
there is any family dispute between the accused and the
complainant and the complainant must be clearly told that if
the complaint is found to be false or frivolous, then strict
action will be taken against him in accordance with law. If
the connivance between the complainant and the investigating
officer is established then action be taken against the F
investigating officer in accordance with law.
95. The gravity of charge and exact role of the accused must
be properly comprehended. Before arrest, the arresting officer
must record the valid reasons which have led to the arrest of
the accused in the case diary. In exceptional cases the reasons G
could be recorded immediately after the arrest, so that while
dealing with the bail application, the remarks and
observations of the arresting officer can also be properly
evaluated by the court.
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70 SUPREME COURT REPORTS [2020] 2 S.C.R.

A 96. It is imperative for the courts to carefully and with
meticulous precision evaluate the facts of the case. The
discretion must be exercised on the basis of the available
material and the facts of the particular case. In cases where
the court is of the considered view that the accused has joined
investigation and he is fully cooperating with the investigating
B
agency and is not likely to abscond, in that event, custodial
interrogation should be avoided.
97. A great ignominy, humiliation and disgrace is attached to
the arrest. Arrest leads to many serious consequences not only
for the accused but for the entire family and at times for the
C entire community. Most people do not make any distinction
between arrest at a pre-conviction stage or post-conviction
stage. Whether the powers under section 438 Cr.P.C. are
subject to limitation of section 437 Cr.P.C.?
98. The question which arises for consideration is whether
D the powers under section 438 Cr.P.C. are unguided or
uncanalised or are subject to all the limitations of section
437 Cr.P.C.? The Constitution Bench in Sibbia’s case (supra)
has clearly observed that there is no justification for reading
into section 438 Cr.P.C. and the limitations mentioned in
E section 437 Cr.P.C. The Court further observed that the
plentitude of the section must be given its full play. The
Constitution Bench has also observed that the High Court is
not right in observing that the accused must make out a
“special case” for the exercise of the power to grant
anticipatory bail. This virtually, reduces the salutary power
F conferred by section 438 Cr.P.C. to a dead letter. The Court
observed that “We do not see why the provisions of Section
438 Cr.P.C. should be suspected as containing something
volatile or incendiary, which needs to be handled with the
greatest care and caution imaginable.”
G 99. As aptly observed in Sibbia’s case (supra) that a wise
exercise of judicial power inevitably takes care of the evil
consequences which are likely to flow out of its intemperate
use. Every kind of judicial discretion, whatever may be the
nature of the matter in regard to which it is required to be
H exercised, has to be used with due care and caution. In fact,
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 71
[S. RAVINDRA BHAT, J.]

an awareness of the context in which the discretion is required A
to be exercised and of the reasonably foreseeable
consequences of its use, is the hallmark of a prudent exercise
of judicial discretion. One ought not to make a bugbear of
the power to grant anticipatory bail.
100. The Constitution Bench in the same judgment also B
observed that a person seeking anticipatory bail is still a free
man entitled to the presumption of innocence. He is willing to
submit to restraints and conditions on his freedom, by the
acceptance of conditions which the court may deem fit to
impose, in consideration of the assurance that if arrested, he
shall enlarged on bail. C

101. The proper course of action ought to be that after
evaluating the averments and accusation available on the
record if the court is inclined to grant anticipatory bail then
an interim bail be granted and notice be issued to the public
prosecutor. After hearing the public prosecutor the court may D
either reject the bail application or confirm the initial order
of granting bail. The court would certainly be entitled to
impose conditions for the grant of bail. The public prosecutor
or complainant would be at liberty to move the same court
for cancellation or modifying the conditions of bail any time E
if liberty granted by the court is misused. The bail granted by
the court should ordinarily be continued till the trial of the
case.
102. The order granting anticipatory bail for a limited
duration and thereafter directing the accused to surrender F
and apply before a regular bail is contrary to the legislative
intention and the judgment of the Constitution Bench in
Sibbia’s case (supra).
103. It is a settled legal position that the court which grants
the bail also has the power to cancel it. The discretion of G
grant or cancellation of bail can be exercised either at the
instance of the accused, the public prosecutor or the
complainant on finding new material or circumstances at any
point of time.

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72 SUPREME COURT REPORTS [2020] 2 S.C.R.

A 104. The intention of the legislature is quite clear that the
power of grant or refusal of bail is entirely discretionary. The
Constitution Bench in Sibbia’s case (supra) has clearly stated
that grant and refusal is discretionary and it should depend
on the facts and circumstances of each case. The Constitution
Bench in the said case has aptly observed that we must respect
B
the wisdom of the Legislature entrusting this power to the
superior courts namely, the High Court and the Court of
Session. The Constitution Bench observed as under:
“We would, therefore, prefer to leave the High Court and
the Court of Session to exercise their jurisdiction under
C Section 438 by a wise and careful use of their discretion
which, by their long training and experience, they are
ideally suited to do. The ends of justice will be better served
by trusting these courts to act objectively and in
consonance with principles governing the grant of bail
D which are recognized over the years, than by divesting them
of their discretion which the legislature has conferred upon
them, by laying down inflexible rules of general
application. It is customary, almost chronic, to take a statute
as one finds it on the grounds that, after all “the legislature
in, its wisdom” has thought it fit to use a particular
E expression. A convention may usefully grow whereby the
High Court and the Court of Session may be trusted to
exercise their discretionary powers in their wisdom,
especially when the discretion is entrusted to their care by
the legislature in its wisdom. If they err, they are liable to
F be corrected.”
GRANT OF BAIL FOR LIMITED PERIOD IS CONTRARY TO
THE LEGISLATIVE INTENTION AND LAW DECLARED BY
THE CONSTITUTION BENCH:
105. The court which grants the bail has the right to cancel
G the bail according to the provisions of the General Clauses
Act but ordinarily after hearing the public prosecutor when
the bail order is confirmed then the benefit of the grant of the
bail should continue till the end of the trial of that case.
106. The judgment in Salauddin Abdulsamad Shaikh (supra)
H is contrary to legislative intent and the spirit of the very
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 73
[S. RAVINDRA BHAT, J.]

provisions of the anticipatory bail itself and has resulted in A
an artificial and unreasonable restriction on the scope of
enactment contrary to the legislative intention.
107. The restriction on the provision of anticipatory bail under
section 438 Cr.P.C. limits the personal liberty of the accused
granted under Article 21 of the constitution. The added B
observation is nowhere found in the enactment and bringing
in restrictions which are not found in the enactment is again
an unreasonable restriction. It would not stand the test of
fairness and reasonableness which is implicit in Article 21 of
the Constitution after the decision in Maneka Gandhi’s case
(supra) in which the court observed that in order to meet the C
challenge of Article 21 of the Constitution the procedure
established by law for depriving a person of his liberty must
be fair, just and reasonable.
108. Section 438 Cr.P.C. does not mention anything about
the duration to which a direction for release on bail in the D
event of arrest can be granted. The order granting anticipatory
bail is a direction specifically to release the accused on bail
in the event of his arrest. Once such a direction of
anticipatory bail is executed by the accused and he is released
on bail, the concerned court would be fully justified in
imposing conditions including direction of joining E
investigation.
109. The court does not use the expression ‘anticipatory bail’
but it provides for issuance of direction for the release on
bail by the High Court or the Court of Sessions in the event
of arrest. According to the aforesaid judgment of Salauddin’s F
case, the accused has to surrender before the trial court and
only thereafter he/she can make prayer for grant of bail by
the trial court. The trial court would release the accused only
after he has surrendered.
110. In pursuance to the order of the Court of Sessions or the G
High Court, once the accused is released on bail by the trial
court, then it would be unreasonable to compel the accused
to surrender before the trial court and again apply for regular
bail.

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74 SUPREME COURT REPORTS [2020] 2 S.C.R.

A 111. The court must bear in mind that at times the applicant
would approach the court for grant of anticipatory bail on
mere apprehension of being arrested on accusation of having
committed a non-bailable offence. In fact, the investigating
or concerned agency may not otherwise arrest that applicant
who has applied for anticipatory bail but just because he
B makes an application before the court and gets the relief from
the court for a limited period and thereafter he has to surrender
before the trial court and only thereafter his bail application
can be considered and life of anticipatory bail comes to an
end. This may lead to disastrous and unfortunate
C consequences. The applicant who may not have otherwise
lost his liberty loses it because he chose to file application of
anticipatory bail on mere apprehension of being arrested on
accusation of having committed a non-bailable offence. No
arrest should be made because it is lawful for the police officer
to do so. The existence of power to arrest is one thing and the
D justification for the exercise of it is quite another. The police
officer must be able to justify the arrest apart from his power
to do so. This finding of the said judgment (supra) is contrary
to the legislative intention and law which has been declared
by a Constitution Bench of this court in Sibbia’s case (supra).
E 112. The validity of the restrictions imposed by the Apex Court,
namely, that the accused released on anticipatory bail must
submit himself to custody and only thereafter can apply for
regular bail . This is contrary to the basic intention and spirit
of section 438 Cr.P.C. It is also contrary to Article 21 of the
Constitution. The test of fairness and reasonableness is implicit
F under Article 21 of the Constitution of India. Directing the
accused to surrender to custody after the limited period
amounts to deprivation of his personal liberty.
113. It is a settled legal position crystallized by the Constitution
Bench of this court in Sibbia’s case (supra) that the courts
G should not impose restrictions on the ambit and scope of
section 438 Cr.P.C. which are not envisaged by the Legislature.
The court cannot rewrite the provision of the statute in the
garb of interpreting it.
114. It is unreasonable to lay down strict, inflexible and rigid
H rules for exercise of such discretion by limiting the period of
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 75
[S. RAVINDRA BHAT, J.]

which an order under this section could be granted. We deem A
it appropriate to reproduce some observations of the judgment
of the Constitution Bench of this court in the Sibbia’s case
(supra)…”
********************* *****************
121. No inflexible guidelines or straitjacket formula can be B
provided for grant or refusal of anticipatory bail. We are
clearly of the view that no attempt should be made to provide
rigid and inflexible guidelines in this respect because all
circumstances and situations of future cannot be clearly
visualized for the grant or refusal of anticipatory bail . In C
consonance with the legislative intention the grant or refusal
of anticipatory bail should necessarily depend on facts and
circumstances of each case. As aptly observed in the
Constitution Bench decision in Sibbia’s case (supra) that the
High Court or the Court of Sessions to exercise their
jurisdiction under section 438 Cr.P.C. by a wise and careful D
use of their discretion which by their long training and
experience they are ideally suited to do. In any event, this is
the legislative mandate which we are bound to respect and
honour.
122. The following factors and parameters can be taken into E
consideration while dealing with the anticipatory bail:
i. The nature and gravity of the accusation and the exact role
of the accused must be properly comprehended before arrest
is made;
F
ii. The antecedents of the applicant including the fact as to
whether the accused has previously undergone imprisonment
on conviction by a Court in respect of any cognizable offence;
iii. The possibility of the applicant to flee from justice;
iv. The possibility of the accused’s likelihood to repeat similar G
or the other offences.
v. Where the accusations have been made only with the object
of injuring or humiliating the applicant by arresting him or
her.
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76 SUPREME COURT REPORTS [2020] 2 S.C.R.

A vi. Impact of grant of anticipatory bail particularly in cases
of large magnitude affecting a very large number of people.
vii. The courts must evaluate the entire available material
against the accused very carefully. The court must also clearly
comprehend the exact role of the accused in the case. The
B cases in which accused is implicated with the help of sections
34 and 149 of the Indian Penal Code, the court should
consider with even greater care and caution because over
implication in the cases is a matter of common knowledge
and concern;
C viii. While considering the prayer for grant of anticipatory
bail, a balance has to be struck between two factors namely,
no prejudice should be caused to the free, fair and full
investigation and there should be prevention of harassment,
humiliation and unjustified detention of the accused;
D ix. The court to consider reasonable apprehension of
tampering of the witness or apprehension of threat to the
complainant;
x. Frivolity in prosecution should always be considered and
it is only the element of genuineness that shall have to be
E considered in the matter of grant of bail and in the event of
there being some doubt as to the genuineness of the
prosecution, in the normal course of events, the accused is
entitled to an order of bail.
123. The arrest should be the last option and it should be
F restricted to those exceptional cases where arresting the
accused is imperative in the facts and circumstances of that
case.
124. The court must carefully examine the entire available
record and particularly the allegations which have been
directly attributed to the accused and these allegations are
G
corroborated by other material and circumstances on record.
125. These are some of the factors which should be taken
into consideration while deciding the anticipatory bail
applications. These factors are by no means exhaustive but
they are only illustrative in nature because it is difficult to
H
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 77
[S. RAVINDRA BHAT, J.]

clearly visualize all situations and circumstances in which a A
person may pray for anticipatory bail. If a wise discretion is
exercised by the concerned judge, after consideration of entire
material on record then most of the grievances in favour of
grant of or refusal of bail will be taken care of. The legislature
in its wisdom has entrusted the power to exercise this
B
jurisdiction only to the judges of the superior courts. In
consonance with the legislative intention we should accept
the fact that the discretion would be properly exercised. In
any event, the option of approaching the superior court
against the court of Sessions or the High Court is always
available.” C
12. These seemingly incongruent strands of reasoning- stemming
from the two distinct line of precedents, spawning divergent approaches
to the scope of jurisdiction under Section 438 have impelled the reference
to this larger Bench.
The provisions D

13. For completeness, it is essential to set out the relevant
provisions: to wit, Sections 437, 438 and 439 of the Code of Criminal
Procedure, 1974 (hereafter variously “Cr.PC” and “the Code”). They
are reproduced in the footnote below.14
E

14
"437. When bail may be taken in case of non- bailable offence.
(1) When any person accused of, or suspected of, the commission of any non-
bailable offence is arrested or detained without warrant by an officer in charge
of a police station or appears or is brought before a Court other than the High F
Court or Court of Session, he may be released on bail, but-
(i) such person shall not be so released if there appear reasonable grounds for
believing that he has been guilty of an offence punishable with death or
imprisonment for life;
(ii) such person shall not be so released if such offence is a cognizable offence
and he had been previously convicted of an offence punishable with death, G
imprisonment for life or imprisonment for seven years or more, or he had been
previously convicted on two or more occasions of a cognizable offence punishable
with imprisonment for three years or more but not less than seven years.
Provided that the Court may direct that a person referred to in clause (i) or
clause (ii) be released on bail if such person is under the age of sixteen years or
is a woman or is sick or infirm. H
78 SUPREME COURT REPORTS [2020] 2 S.C.R.

A Provided further that the Court may also direct that a person referred to in
clause (ii) be released on bail if it is satisfied that it is just and proper so to do
for any other special reason.
Provided also that the mere fact that an accused person may be required for
being identified by witnesses during investigation shall not be sufficient ground
for refusing to grant bail if he is otherwise entitled to be released on bail and
B gives an undertaking that he shall comply with such directions as may be given
by the Court.
Provided also that no person shall if the offence alleged to have been committed
by him is punishable with death imprisonment for life or imprisonment for
seven years or more be released on bail by the Court under this sub-section
without giving an opportunity of hearing to the public prosecutor.
C (2) If it appears to such officer or Court at any stage of the investigation, inquiry
or trial, as the case may be, that there are not reasonable grounds for believing
that the accused has committed a non- bailable offence, but that there are
sufficient grounds for further inquiry into hisguilt the accused shall, subject to
the provisions of section 446A and pending such inquiry, be released on bail or
at the discretion of such officer or Court, on the execution by him of a bond
without sureties for his appearance as hereinafter provided.
D
(3) When a person accused or suspected of the commission of an offence
punishable with imprisonment which may extend to seven years or more or of
an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal
Code (45 of 1860) or abetment of, or conspiracy or attempt to commit, any such
offence, is released on bail under sub-section (1), the Court shall impose the
conditions-
E
(a) that such person shall attend in accordance with the conditions of the bond
executed under this Chapter, or
(b) that such person shall not commit an offence similar to the offence of which
he is accused or suspected of the commission of which he is suspected, and
(c) that such person shall not directly or indirectly make any inducement, threat
F or promise to any person acquainted with the facts of the case so as to dissuade
him for disclosing such facts to the Court or to any police officer or tamper with
the evidence,and may also impose in the interest of justice such other conditions
as it considers necessary.
(4) An officer or a Court releasing any person on bail under sub- section (1) or
sub- section (2), shall record in writing his or its reasons or special reasons for
G so doing.
(5) Any Court which has released a person on bail under sub- section (1) or
sub- section (2), may, if it considers it necessary so to do, direct that such person
be arrested and commit him to custody.
(6) If, in any case triable by a Magistrate, the trial of a person accused of any
non- bailable offence is not concluded within a period of sixty days from the first
H date fixed for taking evidence in the case, such person shall, if he is in custody
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 79
[S. RAVINDRA BHAT, J.]

during the whole of the said period, be released on bail to the satisfaction of the A
Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise
directs.
(7) If, at any time after the conclusion of the trial of a person accused of a non-
bailable offence and before judgment is delivered, the Court is of opinion that
there are reasonable grounds for believing that the accused is not guilty of any
such offence, it shall release the accused, if he is in custody, on the execution by B
him of a bond without sureties for his appearance to hear judgment delivered.
438. Direction for grant of bail to person apprehending arrest.
(1) When any person has reason to believe that he may be arrested on an
accusation of having committed a non- bailable offence, he may apply to the
High Court or the Court of Session for a direction under this section; and that
Court may, if it thinks fit, direct that in the event of such arrest, he shall be C
released on bail.*
* By amendment, made in 2005, Subsection (1) has been substituted as
follows (the amended portion is brackets; the amendment has not yet
been brought into force):
——————————————————————————————————
[“(1) Where any person has reason to believe that he may be arrested on D
accusation of having committed a non- bailable offence, he may apply to the
High Court or the Court of Session for a direction under this section; that in the
event of such arrest, he shall be released on bail and the Court may after taking
into consideration inter- alia the following factors namely.
(i) the nature and gravity of the accusation
E
(ii) the antecedents of the applicant including the fact as to whether he has
previously undergone imprisonment on conviction by a Court in respect of any
cognizable offence
(iii) the possibility of the applicant to flee from justice and
(iv) where the accusation has been made with the object of injuring or humiliating
the applicant by having him so arrested,either reject the application forthwith F
or issue an interim order for the grant of anticipatory bail.
Provided that where the High Court or as the case may be the Court of Session
has not passed any interim order under this sub-section or has rejected the
application for grant of anticipatory bail it shall be open to an officer in charge
of police station to arrest without warrant the applicant on the basis of the
accusation apprehended in such application G
(IA) Where the Courts grants an interim order under sub-section (1), it shall
forthwith cause a notice being not less than seven days notice, together with the
copy of such order to be served on the Public Prosecutor and the Superintendent
of Police, with a view to give the Public Prosecutor a reasonable opportunity of
being heard when the application shall be finally heard by the Court
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80 SUPREME COURT REPORTS [2020] 2 S.C.R.

A (IB) The presence of the applicant seeking anticipatory bail shall be obligatory
at the time of final hearing of the application and passing of final order by the
Court, if on an application made to it by the Public Prosecutor, the Court
considers such presence necessary in the interest of justice.]
——————————————————————————————————
The unamended portion- Section 438 (2) and (3), and the newly introduced
B sub-section (4) read as follows:
(2) When the High Court or the Court of Session makes a direction under sub-
section (1), it may include such conditions in such directions in the light of the
facts of the particular case, as it may think fit, including-
(i) a condition that the person shall make himself available for interrogation by
a police officer as and when required;
C
(ii) a condition that the person shall not, directly or indirectly, make any
inducement, threat or promise to any person acquainted with the facts of the
case so as to dissuade him from disclosing such facts to the Court or to any
police officer;
(iii) a condition that the person shall not leave India without the previous
D permission of the Court;
(iv) such other condition as may be imposed under sub- section (3) of section
437, as if the bail were granted under that section.
(3) If such person is thereafter arrested without warrant by an officer in charge
of a police station on such accusation, and is prepared either at the time of
arrest or at any time while in the custody of such officer to give bail, he shall be
E released on bail; and if a Magistrate taking cognizance of such offence decides
that a warrant should issue in the first instance against that person he shall
issue a bailable warrant in conformity with the direction of the Court under sub-
section (1).
(4) Nothing in this Section shall apply to any case involving the arrest of any
person on accusation of having committed an offence under sub-Section (3) of
F Section 376 or Section 376 AB or Section 376 DA or Section 376 DB of the
Indian Penal Code, (45 of 1860).
439. Special powers of High Court or Court of Session regarding bail.
(1) A High Court or Court of Session may direct-
(a) that any person accused of an offence and in custody be released on bail, and
G if the offence is of the nature specified in subsection (3) of Section 437, may
impose any condition which it considers necessary for the purposes mentioned
in that sub- section;
(b) that any condition imposed by a Magistrate when releasing an person on
bail be set aside or modified:
Provided that the High Court or the Court of Session shall, before granting bail
H to a person who is accused of an offence which is triable exclusively by the Court
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 81
[S. RAVINDRA BHAT, J.]

Contentions of parties A
14. Mr. Abhay Kumar, for the petitioner, argued that it is not correct
to find any limitation on the life span of an order of anticipatory bail in
terms of its duration by reading the para 42 of Sibbia Case; and that the
life of anticipatory bail is coterminous with the life of criminal case,
whether the criminal case gets over either at the stage of trial or before B
it, in a given case. He further urged that personal liberty is a cherished
freedom, even more important than the other freedoms guaranteed under
the Constitution. The Constitution framers therefore enacted safeguards
in Article 22 in the Constitution to limit the power of the State to detain a
person without trial, which may otherwise pass the test of Article 21, by
humanizing the harsh authority over individual liberty. C

15. It is submitted, therefore that the substantive constitutional
right of personal liberty can be denied or curtailed only in accordance
with the procedure established by a law that is fair, just and reasonable.
That substantial right is procedurally enforced, apart from others, in terms
of grant of Bail to an accused in a criminal case. Chapter XXXIII of the D
Code contains elaborate provisions relating to grant of bail. Bail is granted
to one who is arrested in a non-bailable offence or has been convicted
of an offence after trail. The effect of granting bail is to release the
accused from internment though the court would still retain constructive
control over him through the sureties. In case the accused is released on E
his own bond such constructive control could still be exercised through
the conditions of the bond secured from him. “Bail” literally means surety.
of Session or which, though not so triable, is punishable with imprisonment for
life, give notice of the application for bail to the Public Prosecutor unless it is,
for reasons to be recorded in writing, of opinion that it is not practicable to give
such notice. F
Provided further that the High Court or the Court of Session shall before
granting bail to a person who is an accused of an offence triable under sub-
Section (3) of Section 376 or Section 376 AB or Section 376 DA or Section 376
DB of the Indian Penal Code (45 of 1860) give notice of the application for bail
to the Public Prosecutor within a period of fifteen days from the date of receipt
of the notice of such application. G
(IA) The presence of the informant or any person authorised by him shall be
obligatory at the time of hearing of the application for bail to the person under
sub-Section (3) of the Section 376 or Section 376 AB or Section 376 DA or
Section 376 DB of the Indian Penal Code (45 of 1860)
(2). A High Court or Court of Session may direct that any person who has been
released on bail under this Chapter be arrested and commit him to custody.” H
82 SUPREME COURT REPORTS [2020] 2 S.C.R.

A 16. The literal meaning of the word “bail” is surety. Counsel
referred to the meaning of “bail” in Halsbury’s Laws of England
(Halsbury’s Laws of England, 4 th Edn., Vol. 11, para 166), and
submitted that it is aimed at placing the accused in the custody of his
sureties who are bound to produce him to appear at his trial.15 Upon
grant of bail, the accused is mandated to furnish bond and bail-bond for
B
attendance before officer in charge of police station or Court in terms of
prescribes format of Form No. 45 of Schedule 2 of the Code by giving
necessary details. Bail, it was highlighted, can be given at any stage:
pre-trial, during trial and even after completion of trial. Counsel submitted
that apart from provisions in Chapter XXXII of Cr.PC (Sections 436-
C 450), there are other provisions relevant on the issue, i.e. Section 360
(Order to release on probation of good conduct or after admonition, a
post-conviction stage and Section389 (Suspension of sentence pending
the appeal and release of appellant on bail - postconviction and during
pendency of Appeal). Section 438 manifests the principle of liberty.
D 17. Counsel highlighted that anticipatory bail is panacea for
apprehension of arrest in false case. Anticipatory bail protects from
trauma and stigma of arrest of an innocent (in most of the cases, full of
various responsibilities and even being sole bread earner of her/his family
members), consequently prohibiting in creating reverse victims by way
of dependent upon the said accused. An elementary postulate of criminal
E jurisprudence is the presumption of innocence, meaning thereby that a
person is believed to be innocent until found guilty. However, there are
instances in our criminal law where a reverse onus is placed on an accused
with regard to some specific offences but that is another matter and
does not detract from the fundamental postulate in respect of other
F offences. Yet another important facet of our criminal jurisprudence is
that the grant of bail is the general rule and putting a person in jail or in a
prison or in a correction home (whichever expression one may wish to
use) is an exception. Counsel relied on Dataram Singh v. State of U.P
(2018) 3 SCC 22).
G
15Halsbury’s Laws of England (4th Edn., Vol. 11, para 166): “The effect of granting bail
is not to set the defendant (accused) at liberty but to release him from the custody of law
and to entrust him to the custody of his sureties who are bound to produce him to
appear at his trial at a specified time and place. The sureties may seize their principal
at any time and may discharge themselves by handing him over to the custody of law
H and he will then be imprisoned.”
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 83
[S. RAVINDRA BHAT, J.]

18. Counsel submitted that the provision in Section 438 read with A
Section 439 (2) of the Code, contain clear guidelines and limitations. It
was highlighted that the discretion to impose (or not impose) condition is
left to the concerned court and the Code therefore cannot be interpreted
to cut short its duration either till filing of charge-sheet or unearthing of
alleged fresh materials during investigation. It is submitted that the power
B
to curtail or to diminish, the duration of anticipatory bail, in a suitable
case, is governed by Section 439(2) of the Code in the same manner
which is enumerated in Section 437 of the Code (which is applicable to
a Court other than High Court or Court of Session). The counsel urged
that there have been instances of courts passing orders, including in
some of the orders/judgments of this Court, wherein denial of anticipatory C
bail is followed by direction to accused to surrender and seek regular
bail. This, counsel highlighted, is not based on any sound rationale.
19. Mr. C.S.N. Mohan Rao, learned counsel, emphasized that
arrest of an accused, is governed, by Sections 41-46 of the Code. The
arrest of an accused, is required, if at all, broadly for unearthing the truth D
of the case during investigation (a choice of the investigating agency)
and to secure the presence of accused during trial, for free and fair trial
including exclusion of any possibility of influencing of witnesses/and
tampering of evidence or aborting a trial by absconding (prerogative of
the trail court) or any other means or method known or unknown.
Therefore, whether an accused has to be arrested and kept in custody E
and remains in that state of physical confinement, ideally is to be the
domain of the prosecuting agency and /or of trying Court. There are
sufficient methods enlisted in the Code to ensure this end by both i.e. the
prosecuting agency including complainant/victim and also to the concerned
court- by filing of cancellation of bail by former and issuance of bailable F
and non-bailable warrant by the latter. Counsel argued that in any case,
rejection of an application for anticipatory bail, at first instance, does not
automatically give rise to evil consequences for an accused to surrender
and seek regular bail. The filing of subsequent anticipatory bail and grant
of the relief by a competent court of law in a suitable case, upon showing
proper and inspiring subsequent chance in circumstances in favour of G
accused, is sufficient indicative factor of the proposition that a rejection
of anticipatory will generate no automatic warrant for an accused to
surrender and seek regular bail. If subsequent and material change or
circumstance can be a plausible reason for cancellation of bail, is should
definitely, considering the valuable right of an accused, equally there can H
84 SUPREME COURT REPORTS [2020] 2 S.C.R.

A be a reason for applying fresh application for anticipatory bail in a suitable
case. Having regard to all these factors, counsel urged this court to
endorse the reasoning in Mhetre which according to him is conformity
with the larger bench ruling in Sibbia, and accommodates the flexibilities
in the Code.
B 20. Mr. Rao relied on the observations in Gurcharan Singh v
State (Delhi Admn)16 to say that cancellation of anticipatory bail, when
warranted by the facts, is the answer where the fact situation requires
the applicant (who is beneficiary of an order under Section 438 CrPC)
rather than limiting the order of anticipatory bail. He also pointed out
observations in Gurcharan Singh (supra) to say that statutory bail (i.e.
C where charge sheet is not filed in a case within the prescribed period of
60 or 90 days, leading to release by operation of Section 167 (2) of the
Code17) amounts to deemed bail under Chapter XXXIII of the Code:
“Under the first proviso to S.167 (2) no Magistrate shall
authorise the detention of an accused in custody under that
D
16 1978 (1) SCC 118. The observations are as follows:

“under Section 439 (2) of the new Code a High Court may commit a person released on
bail under Chapter XXXIII by any Court including the Court of Session to custody, if it
thinks appropriate to do so. It must, however, be made clear that a Court of Session
E cannot cancel a bail which has already been granted by the High Court unless new
circumstances arise during the progress of the trial after an accused person has been
admitted to bail by the High Court. If, however, a Court of Session had admitted an
accused person to bail, the State has two options. it may move the Sessions Judge if
certain new circumstances have arisen which were not earlier known to the State and
necessarily, therefore, to that Court. The State may as well approach the High Court
being the superior Court under Section 439 (2) to commit the accused to custody. When,
F
however, the State is aggrieved by the order of the Sessions Judge granting bail and
there are no new circumstances that leave copied up except those already existed, it is
futile for the State to move the Sessions Judge again and it is competent in law to move
the High Court for cancellation of the bail. This position follows from the subordinate
position of the Court of Session vis-a- vis the High Court.”

G 17 Section 167 (2) CrPC reads as follows:

“(2) The Magistrate to whom an accused person is forwarded under this section may,
whether he has or has no jurisdiction to try the case, from time to time, authorise the
detention of the accused in such custody as such Magistrate thinks fit, for a term not
exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit
it for trial, and considers further detention unnecessary, he may order the accused to be
H forwarded to a Magistrate having such jurisdiction: Provided that-
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 85
[S. RAVINDRA BHAT, J.]

section for a total period exceeding 60 days on the expiry of A
which the accused shall be released on bail if he is prepared
to furnish the same- This type of release under the proviso
shall be deemed to be a release under the provisions of Chapter
XXXIII relating to bail.”
21. It was submitted that the decisions in Aslam Babalal Desai v B
State of Maharastra18 is an authority for the proposition that there can
be no cancellation of the bail granted, or deemed to be granted, under
Section 167 (2) merely upon the later filing of a charge sheet. The court
had observed as follows, in Aslam Babalal Desai (supra) in this context:
“It will thus be seen that once an accused person has been C
released on bail by the thrust of the proviso to Section 167
(2), the mere fact that subsequent to his release a challan has
been filed is not sufficient to cancel his bail. In such a situation
his bail can be cancelled only if considerations germane to
cancellation of bail under Section 437 (5) or for that matter
Section 439 (2) exist. That is because the release of a person D
under Section Section 167 (2) is equated to his release under
Chapter XXXIII of the Code.”
It was submitted that therefore, the mere filing of a charge sheet
per se cannot be an event which compels an accused who has the benefit
of anticipatory bail, to surrender and seek regular bail. The grounds for E
cancellation of bail are to be made out, separately.

(a) the Magistrate may authorise the detention of the accused person, otherwise than in
the custody of the police, beyond the period of fifteen days; if he is satisfied that adequate
grounds exist for doing so, but no Magistrate shall authorise the detention of the F
accused person in custody under this paragraph for a total period exceeding,-

(i) ninety days, where the investigation relates to an offence punishable with
death, imprisonment for life or imprisonment for a term of not less than ten
years;

(ii) sixty days, where the investigation relates to any other offence, and, on the G
expiry of the said period of ninety days, or sixty days, as the case may be, the
accused person shall be released on bail if he is prepared to and does furnish
bail, and every person released on bail under this sub- section shall be deemed
to be so released under the provisions of Chapter XXXIII for the purposes of
that Chapter;..”
18 1992 (4) SCC 272
H
86 SUPREME COURT REPORTS [2020] 2 S.C.R.

A 22. Mr. K.V. Vishwanathan, learned Senior Counsel emphasised
that the exercise of power under Section 438 is identical to the exercise
of power under Sections 437 and 439 Cr. P.C. Consequently, pre arrest
bail granted in anticipation of arrest- under Section 438, in his submission,
operates like any other order of bail i.e. till an order of conviction or
affirmative direction is passed to arrest the individuals, is made under
B
Section 439 (2). Mr. Vishwanathan highlighted that Section 438 has an
intrinsic link with Article 21 in as much as it seeks to balance state’s
power and responsibility to investigate offence, with its duty to protect
individual rights and liberties of citizens. It was submitted that Article 21
raises the presumption of innocence in favour of other accused;
C consequently, this has to be at the centre of every consideration of penal
statutes and their interpretation.
23. It was also submitted that Section 438 being part of procedure
established by law is to be construed in a fair, just and reasonable manner.
Learned counsel reiterated that this was what the Court highlighted in
D Sibbia. Mr. Vishwanathan, after outlining the background of Section
438 - in the context of the observations of the 41st Law Commission
Report submitted that those comments should also be considered in the
light of the observations made in the Report of the Committee on Reforms
of the Criminal Justice System by Dr. Justice V.S. Malimath. Reliance
on para 7.26.3.19
E
24. It was urged that the power of arrest with the police is under
Section 41 of the CrPC. That provision is in two parts. One, relating to
offences in which the maximum punishment can extend to imprisonment
for seven year. Second, relating to offences in which the maximum
punishment can extend to imprisonment to above seven years or death
F penalty. Though they have different conditions and thresholds, in both
cases it is clear from a bare reading of the section that the power of
arrest cannot be exercised in ever FIR that is registered u/s 154 Cr.PC.
This power is circumscribed by the conditions laid down in this section.
Moreover, this principle that the power of arrest is not required to be
G exercised in every case was recognized in the case of Joginder Kumar

19The Report remarked – after considering 3 Report of the National Police Commission
rd

that the “power of arrest was one of the chief sources of corruption in the police. The
report suggested that by and large nearly 60% of the arrests were either unnecessary or
unjustified and that such unjustified police action accounted for 43.2% of the expenditure
H of the prison department”.
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 87
[S. RAVINDRA BHAT, J.]

v. State of U.P20; Lalitha Kumari v. State of U.P21; and Arnesh Kumar A
v. State of Bihar. 22 This Court in M.C. Abraham v. State of
Maharastra23 held that it was not mandatory for the police to arrest a
person only because his/her anticipatory bail had been rejected. It was
further stated that the power of arrest is then further circumscribed by
Section 438. As recognized by the Law Commission, there are cases
B
where the power of arrest is not required or allowed to be exercised.
Exercising power of arrest in such cases would be a grave violation of a
person’s right and liberty. Such exercise of power would amount to misuse
of Section 41. The check on the power of arrest and custody provided
by Sections 437 or 439 is limited as the check is only post facto. By then
the person arrested has already suffered the trauma and humiliation of C
arrest.
25. Counsel submitted to strike a further balance between the
power of arrest and the rights of the accused, the power under Section
438 is specifically given to the Court of Session and the High Court so as
to ensure that this judicial intervention is done at the supervisory level D
and not at the magisterial level. It is in this light that the two questions
raised in the present reference need to be addressed. It was urged that
a bare reading of Section 438 shows that there is nothing in the language
of the section which goes to show that the pre-arrest bail granted under
this section has to be time-bound. The position is the same as in Sections
437 and 439. Counsel pointed to Section 438 (3) and submitted that two E
important aspects of this provision highlight the understanding the scheme
of the Code:
a) A person in whose favour a pre-arrest bail order has been
made under Section 438 has to first be arrested. Such person is
then released on bail on the basis of the pre-arrest bail order. For F
such release the person has to comply with the requirement of
Section 441 of giving a bond or surety; and
b) Where the magistrate taking cognizance u/s 204 is of the view
that a warrant is required to be issued at the first instance, such
magistrate is only empowered to issue only a bailable warrant G
and not a non-bailable warrant.
20 1994 (4) SCC 260
21 2014 (2) SCC 1
22 2014 (8) SCC 273

23 2003 (2) SCC 649
H
88 SUPREME COURT REPORTS [2020] 2 S.C.R.

A 26. This curtailment of power of the magistrate clearly shows
Parliamentary intent that one who is granted relief under Section 438
ought not to be arrested at the stage of cognizance because of the said
pre-arrest bail order. Considering this express provision, no other
interpretation can be given to the said section. The second question
referred here squarely covered by this sub-section. This order passed
B
under Section 438, is a pre-arrest direction (to release on bail, in the
event of arrest), is subject to the power granted to the Court of Session
and the High Court under Section 439(2) Cr. P.C. It is clear from the
provision that a bail granted under Section 438 is further governed by
Section 439(2) which gives the power to the Court of Session or the
C High Court to direct the arrest of the accused at any time. This ensures
that through judicial intervention the balance between the two competing
principles can again be revisited if the need arises. In other words,
considering any relevant change in circumstances the prosecution can
seek the arrest of the accused. The only difference is that the power of
arrest in these cases is exercised only after judicial scrutiny. This provision
D
envisions that the Code presupposes that orders once passed under
Sections 438 and 439 will continue till a contrary order is passed under
Section 439(2). The order passed under Sections 438 or 439 are not and
temporary or time bound. Therefore, a person enjoying the benefit of
orders under these sections can be taken into custody only when a specific
E direction is passed under Section 439(2). This direction for arrest under
Section 439 (2) is different from seeking cancellation of bail.
27. It was argued that undoubtedly violation of a condition imposed
in an order passed under Section 438 can lead to a direction of arrest
under Section 439(2). However, the scope of Section 439(2) is not limited
F to only cancellation of bail. Counsel stated that this proposition of law
was considered by this court in Pradeep Ram v. State of Jharkhand24.
In this case, this court while considering an earlier judgment in Mithabhai
Pashabhai Patel v. State of Gujarat25, held that by virtue of Sections
437(5) and 439(2), a direction to take a person into custody could be
passed despite his being released on bail, by a previous order. The court
G held that under Sections 437(5) and 439(2) a person could be directed to
be taken into custody without necessarily cancelling his earlier bail. The
difference between cancellation of bail and a direction to take a person
into custody under Section 439(2) was recognised. It was also held in
24 2019 SCC Online (SC) 825
H
25 2009 (6) SCC 332,
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 89
[S. RAVINDRA BHAT, J.]

this case that if a graver offence is added to the FIR or to the case after A
the person has been granted bail, a direction under Section 439(2) or
437(5) is required before such person can be arrested again for the new
offences added to the case.Therefore, this court recognized the need
for court’s supervision after the bail had been granted.
28. Mr. Hiren Raval, learned amicus curiae, highlighted that while B
there are passages in Sibbia (supra), which support the arguments of
the petitioners, that orders under Section 438 can be unconditional and
not limited by time, the court equally struck a note of caution, and wished
courts to be circumspect while making orders of anticipatory bail. In this
regard, learned senior counsel highlighted paragraphs 42 and 43 of the
decisions in Sibbia. C

29. Elaborating on his submissions, the amicus submitted that
whether to impose any conditions or limit the order of anticipatory bail in
point of time undoubtedly falls within the discretion of the court seized of
the application. He however submitted that this discretion should be
exercised with caution and circumspection. Counsel submitted that there D
could be three situations when anticipatory bail applications are to be
considered: one, when the application is filed in anticipation of arrest,
before filing FIR; two, after filing FIR, but before the filing of the charge
sheet; and three, after filing charge sheet. It was submitted that as a
matter of prudence and for good reasons, articulated in Salauddin, K.L. E
Verma, Adri Dharan Das and decisions adopting their reasoning, it would
be salutary and in public interest for courts to impose time limits for the
life of orders of anticipatory bail. Counsel submitted that if anticipatory
bail is sought before filing of an FIR the courts should grant relief, limited
till the point in time, when the FIR is filed. In the second situation, i.e.
after the FIR is filed, the court may limit the grant of anticipatory bail till F
the point of time when a charge sheet is filed; in the third situation, if the
application is made after filing the charge sheet, it is up to the court, to
grant or refuse it altogether, looking at the nature of the charge. Likewise,
if arrest is apprehended, the court should consider the matter in an entirely
discretionary manner, and impose such conditions as may be deemed G
appropriate.
30. Mr. Raval submitted that in every contingency, the court is not
powerless after the grant of an order of anticipatory bail; it retains the
discretion to revisit the matter if new material relevant to the issue, is
discovered and placed on record before it. He highlighted Section 439(2) H
90 SUPREME COURT REPORTS [2020] 2 S.C.R.

A and argued that that provision exemplified the power of the court to
modify its previous approach and even revoke altogether an earlier order
granting anticipatory bail. It was submitted that the bar under Section
362 of the Code (against review of an order by a criminal court) is
inapplicable to matters of anticipatory bail, given the nature and content
of the power under Section 439(2).
B
31. Mr. Raval also submitted that power under Section 438 cannot
be exercised to undermine any criminal investigation. He highlighted the
concern that an unconditional order of anticipatory bail, would be capable
of misuse to claim immunity in a blanket manner, which was never the
intent of Parliament. Counsel submitted that besides, the discretion of
C courts empowered to grant anticipatory bail should be understood as
balancing the right to liberty and the public interest in a fair and objective
investigation. Therefore, such orders should be so fashioned as to ensure
that accused individuals co-operate during investigations and assist in
the process of recovery of suspect or incriminating material, which they
D may lead the police to discover or recover and which is admissible, during
the trial, per Section 27 of the Evidence Act. He submitted that if these
concerns are taken into account, the declaration of law in Mhetre –
particularly in Paras 122 and 123 that no condition can be imposed by
court, in regard to applications for anticipatory bail, is erroneous; it is
contrary to Para 42 and 43 of the declaration of law in Sibbia’s case
E (supra). It was emphasized that ever since the decision in Salauddin
and other subsequent judgments which followed it, the practise of courts
generally was to impose conditions while granting anticipatory bail:
especially conditions which required the applicant/ accused to apply for
bail after 90 days, or surrender once the charge sheet was filed, and
F apply for regular bail. Counsel relied on Section 437(3) to say that the
conditions spelt out in that provision are to be considered, while granting
anticipatory bail, by virtue of Section 438(2).
32. Mr. Tushar Mehta, learned Solicitor General and Mr. Vikramjit
Banerjee, learned Additional Solicitor General, submitted that the decision
G in Mhetre (supra) is erroneous and should be overruled. It was submitted
that though Section 438 does not per se pre-suppose imposition of
conditions for grant of anticipatory bail, nevertheless, given Section 438(2)
and Section 437(3), various factors must be taken into account. Whilst
exercising power to grant (or refuse) a direction in the nature of
anticipatory bail, the court is bound to strike a balance between the
H
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 91
[S. RAVINDRA BHAT, J.]

individual’s right to personal freedom and the right of investigation of the A
police. For this purpose, in granting relief under Section 438(1), appropriate
conditions can be imposed under Section 438(2) to ensure an unimpeded
investigation. The object of imposing conditions is to avoid the possibility
of the person or accused hampering investigation. Thus, any condition,
which has no reference to the fairness or propriety of the investigation
B
or trial, cannot be countenanced as permissible under the law.
Consequently, courts should exercise their discretion in imposing
conditions with care and restraint.
33. The law presumes an accused to be innocent till his guilt is
proved. As a presumably innocent person, he is entitled to all the
fundamental rights including the right to liberty guaranteed under Article C
21 of the Constitution. Counsel stated that at the same time, while granting
anticipatory bail, the courts are expected to consider and keep in mind
the nature and gravity of accusation, antecedents of the applicant, namely,
about his previous involvement in such offence and the possibility of the
applicant to flee from justice. It is also the duty of the Court to ascertain D
whether accusation has been made with the object of injuring or
humiliating him by having him so arrested. It is needless to mention that
the Courts are duty bound to impose appropriate conditions as provided
under Section 438(2) of the Code.
34. Counsel argued that there is no substantial difference between E
Sections 438 and 439 of the Code as regards appreciation of the case
while granting or refusing bail. Neither anticipatory bail nor regular bail,
however, can be granted as a matter of rule. Being an extraordinary
privilege, should be granted only in exceptional cases. The judicial
discretion conferred upon the court must be properly exercised after
proper application of mind to decide whether it is a fit case for grant of F
anticipatory bail. In this regard, counsel relied on Jai Prakash Singh v
State of Bihar26. Counsel relied on State of M.P. & Anr. v Ram Kishna
Balothia & Anr.27 where this court considered the nature of the right of
anticipatory bail and observed that:
“We find it difficult to accept the contention that Section 438 G
of the Code of Criminal Procedure is an integral part of Article
21. In the first place, there was no provision similar to Section
438 in the old Code of Criminal Procedure......Also
26 2012 (4) SCC 325
27 1995 Supp (3)SCC 419 H
92 SUPREME COURT REPORTS [2020] 2 S.C.R.

A anticipatory hail cannot he granted as a matter of right. It is
essentially a statutory right conferred long after the coming
into force of the Constitution. It cannot he considered as an
essential ingredient of Article 21 of the Constitution. and its
non-application to a certain special category of offences
cannot he considered as violative of Article 21.”
B
35. The decisions in Savitri Agarwal v. State of Maharashtra
& Anr28, and Sibbia were referred to, to argue that before granting an
order of anticipatory bail, the court should be satisfied that the applicant
seeking it has reason to believe that he is likely to be arrested for a non-
bailable offence and that belief must be founded on reasonable grounds.
C Mere “fear” is not belief; it is insufficient for an applicant to show that
he has some sort of vague apprehension that someone is going to accuse
him, for committing an offence pursuant to which he may be arrested.
An applicant’s grounds on which he believes he may be arrested for a
non-bailable offence, must be capable of examination by the Court
D objectively. Specific events and facts should be disclosed to enable the
Court to judge of the reasonableness of his belief, the existence of which
is the sine qua non of the exercise of power conferred by the Section.
It was pointed out that the provisions of Section 438 cannot be invoked
after the arrest of the accused. After arrest, the accused must seek his
remedy under Section 437 or Section 439 of the Code, if he wants to be
E released on bail in respect of the offence or offences for which he is
arrested. The following passages in Savitri Agarwal (supra) were relied
upon:
“24. While cautioning against imposition of unnecessary
restrictions on the scope of the section, because, in its opinion,
F overgenerous infusion of constraints and conditions, which
were not to be found in Section 438 of the Code, could make
the provision constitutionally vulnerable, since the right of
personal freedom, as enshrined in Article 21 of the
Constitution, cannot be made to depend on compliance with
G unreasonable restrictions, the Constitution Bench laid down
the following guidelines, which the courts are required to keep
in mind while dealing with an application for grant of
anticipatory bail:
********** ****************
H
28 2009 (8) SCC 325
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 93
[S. RAVINDRA BHAT, J.]

(iv) No blanket order of bail should be passed and the court A
which grants anticipatory bail must take care to specify the
offence or the offences in respect of which alone the order
will be effective. While granting relief under Section 438(1)
of the Code, appropriate conditions can be imposed under
Section 438(2) so as to ensure an uninterrupted investigation.
B
One such condition can even be that in the event of the police
making out a case of a likely discovery under Section 27 of
the Evidence Act, the person released on bail shall be liable
to be taken in police custody for facilitating the recovery.
Otherwise, such an order can become a charter of lawlessness
and a weapon to stifle prompt investigation into offences which C
could not possible be predicated when the order was passed.
********* **************
(ix) Though it is not necessary that the operation of an order
passed under Section 438(1) of the Code be limited in point
of timebut the court may, if there are reasons for doing so, D
limit the operation of the order to a short period until after
the filing of FIR in respect of the matter covered by the order.
The applicant may, in such cases, be directed to obtain an
order of bail under Section 437 or 439 of the Code within a
reasonable short period after the filing of the FIR.” E
36. It was also argued on behalf of the Govt of NCT- and the
Union, that this court had expressed a serious concern, time and again,
that if accused or applicants who seek anticipatory bail are equipped
with an unconditional order before they are interrogated by the police it
would greatly harm the investigation and would impede the prospects of F
unearthing all the ramifications involved in a conspiracy. Public interest
also would suffer as consequence. Reference was invited to State of
A.P. v. Bimal Krishna Kundu29 in this context. Likewise, attention of
the court was invited to Muraleedharan v. State of Kerala30 which
held that “Custodial interrogation of such an accused is
indispensably necessary for the investigating agency to unearth all G
the links involved in the criminal conspiracies committed by the
person which ultimately led to the capital tragedy.” It was highlighted
that statements made during custodial interrogation are qualitatively more
29 1997 (8) SCC 104
30 2001 (4) SCC 638 H
94 SUPREME COURT REPORTS [2020] 2 S.C.R.

A relevant to those made otherwise. Granting an unconditional order of
anticipatory bail would therefore thwart a complete and objective
investigation.
37. Mr. Aman Lekhi, learned Additional Solicitor General, urged
that the general drift of reasoning in Sibbia was not in favour of a
B generalized imposition of conditions- either as to the period (in terms of
time, or in terms of a specific event, such as filing of charge sheet)
limiting the grant of anticipatory bail. It was submitted that the text of
Section 439(2) applied per se to all forms of orders- including an order
or direction to release an applicant on bail (i.e. grant of anticipatory
bail), upon the court’s satisfaction that it is necessary to do so. Such
C order (of cancellation, under Section 439(2) or direction to arrest) may
made be where the conditions made applicable at the time of grant of
relief, are violated or not complied with, or where the larger interests of
a fair investigation necessitate it.
Analysis and Conclusions
D
Re Point No 1: Whether the protection granted to a person
under Section 438, CrPC should be limited to a fixed period
so as to enable the person to surrender before the Trial
Court and seek regular bail

E 38. The concept of bail, i.e. preserving the liberty of citizen –
even accused of committing offences, but subject to conditions, dates
back to antiquity. Justinian I in the collections of laws and interpretations
which prevailed in his times, Codex Justinianus (or ‘Code Jus’) in
Book 9 titled Title 3(2) stipulated that “no accused person shall under
any circumstances, be confined in prison before he is convicted”.
F The second example of a norm of the distant past is the Magna Carta
which by clause 44 enacted that “people who live outside the forest
need not in future appear before the Royal Justices of the forest in
answer to the general summons unless they are actually involved in
proceedings or are sureties for someone who has been seized for a
G forest offence.” Clear Parliamentary recognition of bail took shape in
later enactments in the UK through the Habeas Corpus Act 1677 and
the English Bill of Rights, 1689 which prescribed that “excessive bail
ought not to be required, nor excessive fines imposed, nor cruel
and unusual punishments inflicted”.
39. Bail ipso facto has not been defined under the Code. It is
H
now widely recognized as a norm which includes the governing principles
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 95
[S. RAVINDRA BHAT, J.]

enabling the setting of accused person on liberty subject to safeguards, A
required to make sure that he is present whenever needed. The
justification for bail (to one accused of commission or committing a crime
is that it preserves a person who is under cloud of having transgressed
law but not convicted for it, from the rigors of a detention.
40. Section 438 of the Cr.PC provides for the issuance of directions B
for the grant of bail to a person apprehending arrest. The Cr.PC of 1973
replaced the old code of 1898. The old code did not provide for any
corresponding provision to Section 438 of the code of 1973. Under the
old code, there was a sharp difference of opinion amongst the various
High Courts on the question as to whether courts had the inherent power
to pass an order of bail in anticipation of arrest. The predominant position C
was that courts did not have such a power. Subsequently, the need for
various amendments to make the code more comprehensive resulted in
the enactment of the Code of Criminal Procedure in 1973. Interestingly,
Section 438 does not expressly use the term “anticipatory bail”; its
language instead empowers the concerned to court to issue directions D
for grant of bail.
41. The Law Commission of India, in its 41st Report of 1969,
noted that the necessity for granting anticipatory bail arises mainly due
to influential persons attempting to implicate their rivals in false cases, or
disgracing them by getting them detained in jail. The report further noted E
that apart from false cases, where there are reasonable grounds for
holding that a person accused of an offence is not likely to abscond, or
otherwise misuse his liberty while on bail, there seems to be no justification
to require him first to submit to custody, remain in prison for some days
and then apply for bail. The report recommended that a provision be
included for the direction to grant bail in such cases, and that this power F
vest in the High Courts and Courts of Session only. The report, however,
did not include the conditions for grant of anticipatory bail in the suggested
language for the provision. Certain conditions that courts may include
were, however included in the provision that was enacted as Section
438 of the Cr.PC, 1973. G
42. The term ‘anticipatory bail’ finds no place in the Cr.PC itself
but was used by the Law Commission of India in its 41st Report. The
term was used to convey that it was an application for bail in anticipation
of arrest, i.e., before the arrest itself is made. Grant of bail, according to
Wharton’s Law Lexicon, and as noticed in Sibbia (supra), means to H
96 SUPREME COURT REPORTS [2020] 2 S.C.R.

A “set at liberty a person arrested or imprisoned, on security being
taken for his appearance”. Sibbia, observed thus:
“The distinction between an ordinary order of bail and an
order of anticipatory bail is that whereas the former is granted
after arrest and therefore means release from the custody of
B the police, the latter is granted in anticipation of arrest and
is therefore effective at the very moment of arrest. Police
custody is an inevitable concomitant of arrest for non-bailable
offences. An order of anticipatory bail, constitutes, so to say,
an insurance against police custody following upon arrest
for offence or offences in respect of which the order is issued.
C In other words, unlike a post-arrest order of bail, it is a pre-
arrest legal process which directs that if the person in whose
favour it is issued is thereafter arrested on the accusation in
respect of which the direction is issued, he shall be released
on bail. Section 46(1) of the CrPC which deals with how
D arrests are to be made, provides that in making the arrest, the
police officer or other person making the arrest “shall actually
touch or confine the body of the person to be arrested, unless
there be a submission to the custody by word or action”. A
direction Under Section 438 is intended to confer conditional
immunity from this ‘touch’ or confinement.
E
43. In Sibbia (supra), this Court considered the specific question
of whether the power to grant anticipatory bail under Section 438 is
limited to contingencies such as the possibility that the police may use
their investigative powers to humiliate the person sought to be arrested,
or pervert the course of justice and abuse their powers of investigation.
F One of the arguments raised in Sibbia, as also in the present case, was
that the power to grant anticipatory bail ought to be left to the discretion
of the court concerned, depending on the facts and circumstances of
each case. The State, on the other hand, argued that the grant of
anticipatory bail should at least be conditional upon the bail applicant
G showing that he is likely to be arrested for an ulterior motive - that the
proposed charges are baseless or motivated by malafides. The State
also argued that anticipatory bail is an extraordinary remedy and therefore,
whenever it appears that the proposed accusations are prima facie
plausible, the applicant should be left to the ordinary remedy of applying
for bail under Section 437 or Section 439 of the Cr.PC, after being
H arrested.
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 97
[S. RAVINDRA BHAT, J.]

44. Counsel for the appellants in Sibbia, on the other hand, argued A
that since the denial of bail amounts to deprivation of personal liberty,
courts should lean against the imposition of unnecessary restrictions on
the scope of Section 438, when no such restrictions are prescribed by
the legislature under that provision. The Court observed that Section
438(1) is couched in broad and unqualified terms and was of the opinion
B
that such broad language ought not to be infused with restraints and
conditions which the legislature itself did not think proper or necessary
to impose. The court laid emphasis on the primacy of the presumption of
innocence in criminal jurisprudence, and observed that Section 438 was
not enacted on a clean slate, but rather within the context of the existing
provisions, Sections 437 (dealing with the power of courts other than the C
Court of Session and the High Court to grant bail in nonbailable cases)
and Section 439 (which deals with the “special powers” of the High
Court and the Court of Session regarding bail). In the light of the relevant
extracts of Sibbia, it would now be worthwhile to recount the relevant
observations on the issue. The discussion and conclusions in Sibbia are
D
summarized as follows:
45. (i) Grant of an order of unconditional anticipatory bail would
be “plainly contrary to the very terms of Section 438.” Even though
the terms of Section 438(1) confer discretion, Section 438(2) “confers
on the court the power to include such conditions in the direction
as it may think fit in the light of the facts of the particular case, E
including the conditions mentioned in clauses (i) to (iv) of that sub-
section.”
(ii) Grant of an order under Section 438(1) does not per se hamper
investigation of an offence; Section 438(1)(i) and (ii) enjoin that an
accused/applicant should co-operate with investigation. Sibbia (supra) F
also stated that courts can fashion appropriate conditions governing bail,
as well. One condition can be that if the police make out a case of likely
recovery of objects or discovery of facts under Section 27 (of the
Evidence Act, 1872), the accused may be taken into custody. Given that
there is no formal method prescribed by Section 46 of the Code if recovery G
is made during a statement (to the police) and pursuant to the accused
volunteering the fact, it would be a case of recovery during “deemed
arrest” (Para 19 of Sibbia).
(iii) The accused is not obliged to make out a special case for
grant of anticipatory bail; reading an otherwise wide power would fetter H
98 SUPREME COURT REPORTS [2020] 2 S.C.R.

A the court’s discretion. Whenever an application (for relief under Section
438) is moved, discretion has to be always exercised judiciously, and
with caution, having regard to the facts of every case. (Para 21, Sibbia).
(iv) While the power of granting anticipatory bail is not ordinary,
at the same time, its use is not confined to exceptional cases (Para 22,
B Sibbia).
(v) It is not justified to require courts to only grant anticipatory
bail in special cases made out by accused, since the power is
extraordinary, or that several considerations – spelt out in Section 437-
or other considerations, are to be kept in mind. (Para 24-25, Sibbia).
C (vi) Overgenerous introduction (or reading into) of constraints on
the power to grant anticipatory bail would render it Constitutionally
vulnerable. Since fair procedure is part of Article 21, the court should
not throw the provision (i.e. Section 438) open to challenge “by reading
words in it which are not to be found therein.” (Para 26).
D (vii) There is no “inexorable rule” that anticipatory bail cannot be
granted unless the applicant is the target of mala fides. There are several
relevant considerations to be factored in, by the court, while considering
whether to grant or refuse anticipatory bail. Nature and seriousness of
the proposed charges, the context of the events likely to lead to the
E making of the charges, a reasonable possibility of the accused’s presence
not being secured during trial; a reasonable apprehension that the
witnesses might be tampered with, and “the larger interests of the public
or the state” are some of the considerations. A person seeking relief (of
anticipatory bail) continues to be a man presumed to be innocent. (Para
31, Sibbia).
F
(viii) There can be no presumption that any class of accused- i.e.
those accused of particular crimes, or those belonging to the poorer
sections, are likely to abscond. (Para 32, Sibbia).
(ix) Courts should exercise their discretion while considering
applications for anticipatory bail (as they do in the case of bail). It would
G
be unwise to divest or limit their discretion by prescribing “inflexible
rules of general application.”. (Para 33, Sibbia).
(x) The apprehension of an applicant, who seeks anticipatory bail
(about his imminent or possible arrest) should be based on reasonable
grounds, and rooted on objective facts or materials, capable of
H
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 99
[S. RAVINDRA BHAT, J.]

examination and evaluation, by the court, and not based on vague un- A
spelt apprehensions. (Para 35, Sibbia).
(xi) The grounds for seeking anticipatory bail should be examined
by the High Court or Court of Session, which should not leave the question
for decision by the concerned Magistrate. (Para 36, Sibbia).
B
(xii) Filing of FIR is not a condition precedent for exercising
power under Section 438; it can be done on a showing of reasonable
belief of imminent arrest (of the applicant). (Para 37, Sibbia).
(xiii) Anticipatory bail can be granted even after filing of an FIR-
as long as the applicant is not arrested. However, after arrest, an
C
application for anticipatory bail is not maintainable. (Para 38-39, Sibbia).
(xiv) A blanket order under Section 438, directing the police to not
arrest the applicant, “wherever arrested and for whatever offence”
should not be issued. An order based on reasonable apprehension relating
to specific facts (though not spelt out with exactness) can be made. A
D
blanket order would seriously interfere with the duties of the police to
enforce the law and prevent commission of offences in the future. (Para
40-41, Sibbia).
(xv) The public prosecutor should be issued notice, upon considering
an application under Section 438; an ad interim order can be made.The
E
application “should be re-examined in the light of the respective
contentions of the parties.” The ad interim order too must conform to
the requirements of the section and suitable conditions should be imposed
on the applicant even at that stage. “Should the operation of an order
passed under Section 438(1) be limited in point of time? Not
necessarily. The court may, if there are reasons for doing so, limit F
the operation of the order to a short period until after the filing of
an FIR in respect of the matter covered by the order. The applicant
may in such cases be directed to obtain an order of bail under
Section 437 or 439 of the Code within a reasonably short period
after the filing of the FIR as aforesaid. But this need not be followed G
as an invariable rule. The normal rule should be not to limit the
operation of the order in relation to a period of time.” (Para 42,
Sibbia).
46. It is quite evident, therefore, that the pre-dominant thinking of
the larger, Constitution Bench, in Sibbia (supra), was that given the H
100 SUPREME COURT REPORTS [2020] 2 S.C.R.

A premium and the value that the Constitution and Article 21 placed on
liberty- and given that a tendency was noticed, of harassment – at times
by unwarranted arrests, the provision for anticipatory bail was made. It
was not hedged with any conditions or limitations- either as to its duration,
or as to the kind of alleged offences that an applicant was accused of
B having committed. The courts had the discretion to impose such
limitations (like co-operation with investigation, not tampering with
evidence, not leaving the country etc) as were reasonable and necessary
in the peculiar circumstances of a given case. However, there was no
invariable or inflexible rule that the applicant had to make out a special
case, or that the relief was to be of limited duration, in a point of time, or
C was unavailable for any particular class of offences.
47. At this stage, it would be essential to clear the air on the
observations made in some of the later cases about whether Section 438
is an essential element of Article 21. Some judgments, notably Ram Kishna
Balothia & Anr. (supra) and Jai Prakash Singh v State of Bihar31
D held that the provision for anticipatory bail is not an essential ingredient
of Article 21, particularly in the context of imposition of limitations on the
discretion of the courts while granting anticipatory bail, either limiting
the relief in point of time, or some other restriction in respect of the
nature of the offence, or the happening of an event. We are afraid, such
E observations are contrary to the broad terms of the power declared by
the Constitution Bench of this court in Sibbia (supra). The larger bench
had specifically held that an “over-generous infusion of constraints
and conditions which are not to be found in Section 438 can make
its provisions constitutionally vulnerable since the right to personal
freedom cannot be made to depend on compliance with
F
unreasonable restrictions.”
48. In Gudikanti Narasimhulu v. Public Prosecutor32 this court
observed that
“. … Personal liberty, deprived when bail is refused, is too
G precious a value of our constitutional system recognised under
Article 21 that the curial power to negate it is a great trust
exercisable, not casually but judicially, with lively concern
for the cost to the individual and the community. To glamorise
31 2012 (4) SCC 379
H 32 1978 (1) SCC 240
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 101
[S. RAVINDRA BHAT, J.]

impressionistic orders as discretionary may, on occasions, A
make a litigative gamble decisive of a fundamental right. After
all, personal liberty of an accused or convict is fundamental,
suffering lawful eclipse only in terms of “procedure
established by law”.
49. The reason for enactment of Section 438 in the Code was B
Parliamentary acceptance of the crucial underpinning of personal liberty
in a free and democratic country. Parliament wished to foster respect
for personal liberty and accord primacy to a fundamental tenet of criminal
jurisprudence, that everyone is presumed to be innocent till he or she is
found guilty. Life and liberty are the cherished attributes of every
individual. The urge for freedom is natural to each human being. Section C
438 is a procedural provision concerned with the personal liberty of each
individual, who is entitled to the benefit of the presumption of innocence.
As 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, especially when not imposed by the legislature. In D
Sibbia, it was observed that:
“Anticipatory bail is a device to secure the individual’s liberty;
it is neither a passport to the commission of crimes nor a
shield against any and all kinds of accusations, likely or
unlikely.” E
50. The interpretation of Section 438- that it does not encapsulate
Article 21, is erroneous. This court is of the opinion that the issue is not
whether Section 438 is an intrinsic element of Article 21: it is rather
whether that provision is part of fair procedure. As to that, there can be
no doubt that the provision for anticipatory bail is pro-liberty and enables F
one anticipating arrest, a facility of approaching the court for a direction
that he or she not be arrested; it was specifically enacted as a measure
of protection against arbitrary arrests and humiliation by the police, which
Parliament itself recognized as a widespread malaise on the part of the
police.
G
51. The forty first and forty-eight reports of the Law Commission
were noticed by this court in Sibbia (supra). Thereafter, the Law
Commission, in its 154th report had occasion to deal with the subject; it
recommended no substantial change, - except procedural additions to
Section 438 and observed as follows:
H
102 SUPREME COURT REPORTS [2020] 2 S.C.R.

A “18. In the various workshops diverse views were expressed
regarding the retention or deletion of the provision of
anticipatory bail. One view is that it is being misused by
affluent and influential sections of accused in society and
hence, be deleted from the Code. The other view is that it is a
salutary provision to safeguard the personal liberty and
B
therefore be retained. Misuse of the same in some instances
by itself cannot be a ground for its deletion. However, some
restraints may be imposed in order to minimise such misuse.
We are, however, of the opinion that the provision contained
under S. 438 regarding anticipatory bail should remain in
C the Code but subject to the amendments suggested in cl. 43
of the Code of Criminal Procedure (Amendment) Bill, 1994
which lays down adequate safeguards.”33
33
The relevant extract of Clause 43 of the proposed 1994 amendment read as
follows:
D “In S. 438 of the principal Act for sub-s. (1), the following sub-sections shall be
substituted, namely:
(1) Where any person has reason to believe that he may be arrested on accusation
of having committed a non-bailable offence, he may apply to the High Court or
the Court of Session for a direction under this section that in the event of such
arrest, he shall be released on bail; and that Court may, after taking into
E consideration, inter alia, the following factors, namely:
(i) the nature and gravity of the accusation;
(ii) the antecedents of the applicant including the fact as to whether he has
previously undergone imprisonment on conviction by a Court in respect
of any cognizable offence;
F (iii) the possibility of the applicant to flee from justice; and
(iv) where the accusation has been made with the objection of injuring or
humiliating the applicant by having him so arrested,
either reject the application forthwith or issue an interim order for the grant of
anticipatory bail:
G Provided that, where the High Court or, as the case may be, the Court of
Session, has not passed any interim order under this sub-section or has rejected
the application for grant of anticipatory bail, it shall be open to an officer-in-
charge of a police station to arrest, without warrant the applicant, if there are
reasonable grounds for such arrest.
(1-A) Where the Court grants an interim order under sub-s. (1), it shall forthwith
H cause a notice being not less than seven days notice, together with a copy of such
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 103
[S. RAVINDRA BHAT, J.]

Interestingly, the 177th report of the Law Commission lamented A
that the power of arrest was being misused by police in a widespread
manner.34
52. The persistence of the phenomena unwarranted arrests was
sharply criticised by this court in Arnesh Kumar(supra), saying that the
approach of the police continued to be colonial despite six decades of B
independence, that the power of arrest is
“…is largely considered as a tool of harassment, oppression
and surely not considered a friend of public. The need for
caution in exercising the drastic power of arrest has been
emphasized time and again by Courts but has not yielded C
desired result. Power to arrest greatly contributes to its
arrogance so also the failure of the Magistratcy to check it.
Not only this, the power of arrest is one of the lucrative sources
order to be served on the Public Prosecutor and the Superintendent of Police,
with a view to give the Public Prosecutor a reasonable opportunity of being
D
heard when the application shall be finally heard by the Court.
(1-B) The presence of the applicant seeking anticipatory bail shall be obligatory
at the time of final hearing of the application and passing of final order by the
Court, if on an application made to it by the Public Prosecutor, the Court
considers such presence necessary in the interest of justice.”
34
One hundred and seventy seventh [177 th] Report, submitted in December 2001 (Law E
Commission of India, 177th Report, Annexure-III para1.8 said that:
“Misuse of power of arrest:- Notwithstanding the safeguards contained in the Code of
Criminal Procedure and the Constitution referred to above, the fact remains that the
power of arrest is wrongly and illegally exercised in a large number of cases all over
the country. Very often this power is utilized to extort monies and other valuable prop-
erty or at the instance of an enemy of the person arrested. Even in case of civil dispute, F
this power is being resorted to on the basis of a false allegation against a party to a civil
dispute at the instance of his opponent. The vast discretion given by the CrPC to arrest
a person even in the case of a bailable offence (not only where the bailable offence is
cognizable but also where it is non-cognizable) and the further power to make preven-
tive arrests (e.g. under Section151 of the CrPC and the several city police enactments),
clothe the police with extraordinary power which can easily be abused. Neither there is
any inhouse mechanism in the police department to check such misuse or abuse nor G
does the complaint of such misuse or abuse to higher police officers bear fruit except in
some exceptional cases. We must repeat that we are not dealing with the vast discretion-
ary powers of the members of a service which is provided with firearms, which are
becoming more and more sophisticated with each passing day (which is technically
called a civil service for the purposes of Service Jurisprudence) and whose acts touch
upon the liberty and freedom of the citizens of this country and not merely their entitle-
ments and properties. H
104 SUPREME COURT REPORTS [2020] 2 S.C.R.

A of police corruption. The attitude to arrest first and then
proceed with the rest is despicable. It has become a hand tool
to the police officers who lack sensitivity or act with oblique
motive.”
The latest report of the Law Commission35 notes that “67 per
B cent of the prison population is awaiting trial in India”. Therefore,
the need for a provision to ensure anticipatory bail, is as crucial, as it
was at the time of its introduction, and at the time Sibbia (supra) was
decided.
53. Various reasons- given in judgments, rendered after Sibbia
C (supra), starting with Salauddin (supra), have highlighted that
anticipatory bail orders have to be constrained by conditions, notably
with reference to time (i.e. three months, etc) or till the happening of a
certain event. The reasons, and observations, limiting the duration of
grant of anticipatory bail are outlined below:
D (1) “such anticipatory bail orders should be of a limited
duration only and 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
E submitted”. (Saluddin and K.L. Verma, supra).
(2) An order of anticipatory bail can be granted in cases of “serious
nature as for example murder”. Consequently, its duration should
“be limited and ordinarily the Court granting anticipatory
bail should not substitute itself for the original Court which
F is expected to deal with the offence.”(Salauddin [supra])
(3) Custodial interrogation of “accused is indispensably
necessary for the investigating agency” to unearth materials
in criminal conspiracies (Ref. to unearth all the links involved
in the criminal conspiracies” (Bimal Krishna Kundu and
G Muraleedharan, [supra])
(4) Imposing time limits (till filing of FIR, or filing of charge-sheet
etc) would enable the court- which is seized of the main case and
monitors it, to consider the nature and gravity of the offence, having
regard to the fresh materials unearthed and included as prosecution
H 35
268th Report, 2017.
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 105
[S. RAVINDRA BHAT, J.]

evidence. Therefore, it would be salutary and in public interest to A
require courts to impose time limits for the life of orders of
anticipatory bail the event of filing of FIR or charge sheet, are
essential ingredients to an order under Section 438. (Salauddin,
K.L. Verma, and Adri Dharan Das). Some decisions have also
stressed that economic offences need a different approach and
B
therefore, anticipatory bail should not be granted readily.36
54. A fuller consideration of the various decisions cited earlier,
especially those which emphasized the need to limit the life of an order
of anticipatory bail, are premised on the understanding that the grant of
an unconditional order of bail would thwart investigation. In the first
place, this premise is unfounded, given that Sibbia (supra) stated (in C
para 13, SCC reports) that such an order would be “contrary to the
terms” of Section 438; and furthermore, that conditions mentioned in
Section 438(2) could be imposed while granting anticipatory bail. Here,
one is conscious of the fact that the requirement of imposing conditions
is not compulsive (noticing the use of the term “may” which precedes D
the requirement of imposing conditions). Nevertheless, an unconditional
order, in the sense of an order not even imposing conditions mentioned in
Section 438(2) can impede or hamper investigation, Sibbia (supra) held
that the conditions mentioned in that provision should be imposed. This
requirement is more a matter of prudence, while granting relief.
E

36
In P. Chidambaram v. Directorate of Enforcement, (2019) 9 SCC 24 it was held as
follows:
“However, the court must also keep in view that a criminal offence is not just an offence
against an individual, rather the larger societal interest is at stake. Therefore, a delicate
balance is required to be established between the two rights—safeguarding the personal F
liberty of an individual and the societal interest…..
83. Grant of anticipatory bail at the stage of investigation may frustrate the investigating
agency in interrogating the accused and in collecting the useful information and also the
materials which might have been concealed. Success in such interrogation would elude
if the accused knows that he is protected by the order of the court. Grant of anticipatory
bail, particularly in economic offences would definitely hamper the effective investigation.
G
Having regard to the materials said to have been collected by the respondent Enforcement
Directorate and considering the stage of the investigation, we are of the view that it is
not a fit case to grant anticipatory bail.”

The court cited other previous decisions, i.e. State v. Anil Sharma (1997) 7 SCC 187;
Sudhir v. State of Maharashtra 2016 (1) SCC 146; and Directorate of Enforcement v.
Hassan Ali Khan (2011) 12 SCC 684. H
106 SUPREME COURT REPORTS [2020] 2 S.C.R.

A 55. This court cannot lose sight of the fact that the Law
Commission’s 41st and 48th report focused on the need to introduce the
provision (for anticipatory bail) as a preventive, or curative measure, to
deal with a particular problem, i.e. unwarranted arrests. Sibbia (supra)
noticed this fact, and also that significantly, Section 438 is not hedged
with any obligation on the court’s power, to impose conditions. That
B
situation remains unchanged: the provision remains unaltered-at least
substantially (barring an amendment in 2005 which obliged the issuance
of notice to the public prosecutor before issuing any order for anticipatory
bail)37. The 203rd Report of the Law Commission, which reviewed the
entire law on the subject and noticed later decisions, such as Salauddin,
C Adari Narain Das, etc, recommended no change in law on this aspect
relating to conditions. In this background, it is important to notice that the
only bar, or restriction, imposed by Parliament upon the exercise of the
power (to grant anticipatory bail) is by way of a positive restriction, i.e.
in the case where accused are alleged to have committed offences
punishable underSection 376(3) or Section 376AB or Section 376DA or
D
Section 376DB of the Indian Penal Code. In other words, Parliament

37
The amendment, i.e. Criminal Procedure Code (Amendment) Act, 2005 – which has
till now, not been brought into force, reads as follows:
[“(1) Where any person has reason to believe that he may be arrested on
accusation of having committed a non- bailable offence, he may apply to the
E High Court or the Court of Session for a direction under this section; that in the
event of such arrest, he shall be released on bail and the Court may after taking
into consideration inter- alia the following factors namely.

(i) the nature and gravity of the accusation

(ii) the antecedents of the applicant including the fact as to whether he has
F previously undergone imprisonment on conviction by a Court in respect of any
cognizable offence

(iii) the possibility of the applicant to flee from justice and

(iv) where the accusation has been made with the object of injuring or humiliating
the applicant by having him so arrested,
G
either reject the application forthwith or issue an interim order for the grant of
anticipatory bail.

Provided that where the High Court or as the case may be the Court of Session
has not passed any interim order under this sub-section or has rejected the
H application for grant of anticipatory bail it shall be open to an officer in charge
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 107
[S. RAVINDRA BHAT, J.]

has now denied jurisdiction of the courts (i.e. Court of Session and High A
Courts) from granting anticipatory bail to those accused of such offences.
The amendment (Code of Criminal Procedure Amendment Act, 2018)
introduced Section 438(4)) reads as follows:
“(4) Nothing in this section shall apply to any case involving
the arrest of any person on accusation of having committed B
an offence under sub-section (3) of section 376 or section
376AB or section 376DA or section 376DB of the Indian Penal
Code.”
56. Clearly, therefore, where the Parliament wished to exclude or
restrict the power of courts, under Seciton 438 of the Code, it did so in C
categorical terms. Parliament’s omission to restrict the right of citizens,
accused of other offences from the right to seek anticipatory bail,
necessarily leads one to assume that neither a blanket restriction can be
read into by this court, nor can inflexible guidelines in the exercise of
discretion, be insisted upon- that would amount to judicial legislation.
D
57. Turning now to the various concerns that impelled this court in
Salauddin, K.L. Verma, Sunita Devi; Nirmal Jeet Kaur and Adri
Dharan Das, HDFC Bank, J.J. Manan(supra) and other decisions
which outlined the various concerns and problems faced by the
prosecuting agency, or the police, or that competent courts would be
deprived of oversight, thus, leading to directions that courts should impose E
time restrictions, or grant temporary or limited bail (e.g. filing of charge
sheet etc.), this court proposes to deal with such reasoning hereafter.
58. The various reasons which led to the imposition of restrictions
or limitations by the decisions noted previously, hinge upon factors such
F
of police station to arrest without warrant the applicant on the basis of the
accusation apprehended in such application

(IA) Where the Courts grants an interim order under sub-section (1), it shall
forthwith cause a notice being not less than seven days notice, together with the
copy of such order to be served on the Public Prosecutor and the Superintendent
G
of Police, with a view to give the Public Prosecutor a reasonable opportunity of
being heard when the application shall be finally heard by the Court

(IB) The presence of the applicant seeking anticipatory bail shall be obligatory
at the time of final hearing of the application and passing of final order by the
Court, if on an application made to it by the Public Prosecutor, the Court
considers such presence necessary in the interest of justice.] H
108 SUPREME COURT REPORTS [2020] 2 S.C.R.

A as: addition of graver offences which the applicant is alleged to have
committed after the grant of anticipatory bail; unearthing of facts
disclosing his or her complicity in serious offences, as for instance, a
conspirator or kingpin; the accused’s non-cooperation in the course of
investigation, (such as, for example, difficulty in securing his person,
evasion by him, reluctance to answer questions during the investigation
B
or providing statements for purposes of recovery of articles in terms of
Section 27 of the Evidence Act); involvement in very serious or grave
offences such as murder, kidnapping, causing death under unusual
circumstances and offences which undermine the economy; disclosure
of information that the offence involves large scale fraud and several
C individuals or victims, and, the filing of charge-sheet. Each of or all of
them put together, in the opinion of the court, neither hold insurmountable
problem, nor are unforeseen situations or not anticipated in Sibbia
(supra).
59. The controlling expressions under Section 438(2) spell out
D three distinct conditions, which the court granting anticipatory bail can
include as directions. These are- that the applicant makes himself available
for interrogation by police officer, as and when required; that such applicant
should not directly or indirectly make any inducement, threat or promise
to any person acquainted with the facts of the case so as to dissuade
him from disclosing such facts to the court or to any police officer; a
E condition that the person should not leave India without the permission
of the court. Further conditions as may be deemed essential, may also
be imposed by the court, under Section 437(3). The Court in Sibbia
(supra) was alive to the necessity of imposing conditions as is evident
from para 13 of its judgment. The court observed that there was nothing
F in law which stated that whenever anticipatory bail is granted, it should
be without imposing any of those conditions. Sibbia (supra) went on to
state that such unconditional orders would be plainly contrary to the
very terms of Section 438. The court also noted that though couched in
discretionary terms, which means that the courts could impose those
conditions, perhaps viewed pragmatically, they should do so. What this
G court in Sibbia (supra) was concerned with, and cautioned other courts
against was that the process of construction and interpretation ought not
to compel the courts to “cut down by reading into the statute conditions
which are not to be found therein.”
60. The context and nature which Sibbia (supra) considered is
H that discretion ought to be exercised by the Full Bench judgment of the
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 109
[S. RAVINDRA BHAT, J.]

Punjab and Haryana High Court which cautioned that the power to grant A
anticipatory bail should be used sparingly and in exceptional cases and
that all conditions under Section 437 should be read into in Section 438.
Furthermore, the High Court had required that an applicant ought to
make out a special case for grant of anticipatory bail; it was also stated
that in cases wherever remand was sought, or a reasonable cause to
B
secure incriminating material in terms of Section 27 of the Evidence Act
could be made out, anticipatory bail ought not to be granted and that it
could not be granted in regard to offences punishable with death or
imprisonment for life unless the court is satisfied that the charge was
false or groundless. The court in Sibbia (supra) frowned upon imposition
of such rules after interpreting and in the course of the judgment held C
that the power to grant anticipatory bail is wide and that the discretion is
not limited in the manner that the High Court suggested. At the same
time, this court also emphasized that the discretion had to be exercised
while granting or refusing to grant in given cases on due application of
mind and in a judicious manner.
D
61. The imposition of conditions under Section 438(2) with
reference to Section 437(3), in the opinion of this court, is enough safeguard
for the authorities – including the police and other investigating agencies,
who have to investigate into crimes and the possible complicity of the
applicants who seek such relief. Taking each concern, i.e. the addition
of more serious offences; presence of a large number of individuals or E
complainants; possibility of non-cooperation - non-cooperation in the
investigation or the requirement of the accused’s statement to aid the
recovery of articles and incriminating articles in the course of statements
made during investigations – it is noticeable, significantly, that each of
these is contemplated as a condition and is invariably included in every F
order granting anticipatory bail. In the event of violation or alleged violation
of these, the concerned authority is not remediless; recourse can be had
to Section 438(2) read with Section 437(3). Any violation of these terms
would attract a direction to arrest him. This power or direction to arrest
is found in Section 437(5). However, that provision has no textual
application to regular bail granted by the Court of Sessions or High Courts G
under Section 439 or directions not to arrest, i.e. order of anticipatory
bail under Section 438. Secondly, Section 439(2) which is cast in wide
terms, adequately covers situations when an accused does not cooperate
during the investigation or threatens to, or intimidates witness[es] or
tries to tamper with other evidence. H
110 SUPREME COURT REPORTS [2020] 2 S.C.R.

A 62. It is important to notice, here that there is nothing in the
provisions of Section 438 which suggests that Parliament intended to
restrict its operation, either as regards the time period, or in terms of the
nature of the offences in respect of which, an applicant had to be denied
bail, or which special considerations were to apply. In this context, it is
relevant to recollect that the court would avoid imposing restrictions or
B
conditions in a provision in the absence of an apparent or manifest
absurdity, flowing from the plain and literal interpretation of the statute
(Ref Chandra Mohan v. State of Uttar Pradesh & Ors38). In Reserve
Bank of India v. Peerless General Finance and Investment Co. Ltd.
& Ors39, the relevance of text and context was emphasized in the
C following terms:
“Interpretation must depend on the text and the context. They
are the bases of interpretation. One may well say if the text is
the texture, context is what gives the colour. Neither can be
ignored. Both are important. That interpretation is best which
D makes the textual interpretation match the contextual. A statute
is best interpreted when we know why it was enacted. With
this knowledge, the statute must be read, first as a whole and
then Section by section, Clause by clause, phrase by phrase
and word by word. If a statute is looked at, in the context of
its enactment, with the glasses of the statute-maker, provided
E by such context, its scheme, the sections, clauses, phrases
and words may take colour and appear different than when
the statute is looked at without the glasses provided by the
context. With these glasses we must look at the Act as a whole
and discover what each section, each clause, each phrase
F and each word is meant and designed to say as to fit into the
scheme of the entire Act. No part of a statute and no word of
a statute can be construed in isolation. Statutes have to be
construed so that every word has a place and everything is in
its place.
G 63. Likewise, in Directorate of Enforcement v Deepak
Mahajan40 this court referred to Maxwell on Interpretation of Statutes,
Tenth Edn., to the effect that if the ordinary meaning and grammatical
38
1967 (1) SCR 77
39
1987 (1) SCC 424
40
1994 (3) SCC 440
H
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 111
[S. RAVINDRA BHAT, J.]

construction, “leads to a manifest contradiction of the apparent A
purpose of the enactment, or to some inconvenience or absurdity,
hardship or injustice, presumably not intended, a construction may
be put upon it which modifies the meaning of the words…”
64. This court, long back, in State of Haryana & Ors. v. Sampuran
Singh & Ors41. observed that by no stretch of imagination a Judge is B
entitled to add something more than what is there in the statute by way
of a supposed intention of the legislature. The cardinal principle of
construction of statute is that the true or legal meaning of an enactment
is derived by considering the meaning of the words used in the enactment
in the light of any discernible purpose or object which comprehends the
mischief and its remedy to which the enactment is directed. It is sufficient, C
therefore to notice that when Section 438 – in the form that exists today,
(which is not substantially different from the text of what was introduced
when Sibbia was decided, except the insertion of sub-section (4)) was
enacted, Parliament was aware of the objective circumstances and
prevailing facts, which impelled it to introduce that provision, without the D
kind of conditions that the state advocates to be intrinsically imposed in
every order under it.
65. The narrower interpretation preferred by this Court - in line of
decisions starting with Salauddin (supra) highlighting the concerns with
respect to the stages of investigation and enquiry and the nature and E
seriousness of the offence, in the opinion of the Court, ought not to lead
one to cutting down the amplitude and the power and discretion otherwise
available with the Courts. The danger of this Court prescribing the
limitations is that they become inflexible rules or edicts incapable of
deviation. Instead, it would be safer to say that where there are
circumstances or facts which pose peculiar problems or complexities F
pointing to the seriousness of an offence which the accused is implicated
in, it is always open to courts (which have to deal with applications
under Section 438) to impose the needed restrictions – be that in point of
time or at the stage of investigation or enquiry. Each of these peculiar
conditions may be imposed in the given circumstances of any case, G
which has those distinctive or special features. But they should not
always be imposed invariably in all cases. In other words, if this Court
were to weave conditions to impose and read into Section 438 that are
not expressly provided, the danger would be that several applicants who
41
1975 (2) SCC 810 H
112 SUPREME COURT REPORTS [2020] 2 S.C.R.

A might otherwise be entitled to relief, would be denied it altogether. For
example, the classification of an offence or a category of offences as
one wanting special treatment where the Courts should not grant relief,
would mean that regardless of the role of the accused and the nature of
materials shown (whether adequate or not), the courts would be rendered
powerless and denuded of the otherwise amplitude of discretion provided
B
by the statute.
66. As regards the concern expressed on behalf of the state and
the Union- that unconditional orders (i.e. those unrelated to a particular
time frame) would result in non-co-operation of the accused, with the
investigating officer or authority, or that there would be reluctance to
C make statements to the prosecution, to assist in the recovery of articles
that incriminate the accused (and therefore can be used under Section
27, Evidence Act), this court perceives such views to be vague and
based apparently pre-conceived notions. If there is non-cooperation by
an accused – in the course of investigation, the remedy of seeking
D assistance of the court exists. Moreover, on this aspect too, Sibbia had
envisioned the situation; the court had cited State of U.P. v Deoman
Upadhyaya42, where this court had observed as follows:
“When a person not in custody approaches a police officer
investigating an offence and offers to give information leading
E to the discovery of a fact, having a bearing on the charge
which may be made against him he may appropriately be
deemed to have surrendered himself to the police. Section 46
of the Code of Criminal Procedure does not contemplate any
formality before a person can be said to be taken in custody
: submission to the custody by word or action by a person in
F sufficient. A person directly giving to a police officer by word
of mouth information which may be used as evidence against
him, may be deemed to have submitted himself to the “custody”
of the police officer within the meaning of Section 27 of the
Indian Evidence Act : Legal Remembrancer v Lalit Mohan
G Singh ((1921) I.L.R. 49 Cal.167), Santokhi Beldar v. King
Emperor ((1933) I.L.R. 12 Pat. 241). Exceptional cases may
certainly be imagined in which a person may give information
without presenting himself before a police officer who is
investigating an offence. For instance, he may write a letter
42
1961 (1) SCR 14
H
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 113
[S. RAVINDRA BHAT, J.]

and give such information or may send a telephonic or other A
message to the police officer.”
This view was reiterated and applied in Vallabhdas Liladhar v
Asst. Collector of Customs43. The observations in Sibbia (supra) are
relevant, and are reproduced again, for facility of reference:
“One of such conditions can even be that in the event of the B
police making out a case of a likely discovery under Section
27 of the Evidence Act, person released on bail shall be liable
to be taken in police custody for facilitating the discovery.
Besides, if and when the occasion arises, it may be possible
for the prosecution to claim the benefit of Section 27 of the C
Evidence Act in regard to a discovery of facts made in
pursuance of information supplied by a person released on
bail by invoking the principle stated by this Court in State of
U.P. v Deoman Upadhyaya.”
Therefore, the “limited custody” or “deemed custody” to facilitate D
the requirements of the investigative authority, would be sufficient for
the purpose of fulfilling the provisions of Section 27, in the event of
recovery of an article, or discovery of a fact, which is relatable to a
statement made during such event (i.e deemed custody). In such event,
there is no question (or necessity) of asking the accused to separately
surrender and seek regular bail. E

67. Now, coming to the instruction in some decisions that
anticipatory bail should not be given, or granted with stringent conditions,
upon satisfaction that the accused is not involved, Sibbia, clearly
disapproved the imposition of such restrictions, or ruling out of certain
offences or adoption of a cautious or special approach. It was held that: F
“A close look at some of the rules in the eight-point code
formulated by the High Court will show how difficult it is to
apply them in practice. The seventh proposition says :
“The larger interest of the public and State demand that in
G
serious cases like economic offences involving blatant
corruption at the higher rungs of the executive and political
power, the discretion under Section 438 of the Code should
not be exercised.”
43
1965 (3) SCR 854
H
114 SUPREME COURT REPORTS [2020] 2 S.C.R.

A How can the Court, even if it had a third eye, assess the
blatantness of corruption at the stage of anticipatory bail?
And will it be correct to say that blatantness of the
accusation will suffice for rejecting bail, even if the
applicant’s conduct is painted in colours too lurid to be
true? The eighth proposition rule framed by the High Court
B
says:
“Mere general allegations of mala fides in the petition are
inadequate. The court must be satisfied on materials before
it that the allegations of mala fide are substantial and the
accusation appears to be false and groundless.”
C
Does this rule mean, and that is the argument of the learned
Additional Solicitor-General, that the anticipatory bail
cannot be granted unless it is alleged (and naturally, also
shown, because mere allegation is never enough) that the
proposed accusations are mala fide ? It is understandable
D that if mala fides are shown anticipatory bail should be
granted in the generality of cases. But it is not easy to
appreciate why an application for anticipatory bail must
be rejected unless the accusation is shown to be mala fide.
This, truly, is the risk involved in framing rules by judicial
E construction. Discretion, therefore, ought to be permitted
to remain in the domain of discretion, to be exercised
objectively and open to correction by the higher courts.
The safety of discretionary power lies in this twin protection
which provides a safeguard against its abuse.

F According to the sixth proposition framed by the High
Court, the discretion under Section 438 cannot be exercised
in regard to offences punishable with death or
imprisonment for life unless, the court at the stage of
granting anticipatory bail, is satisfied that such a charge
appears to be false or groundless. Now, Section 438
G confers on the High Court and the Court of Session the
power to grant anticipatory bail if the applicant has reason
to believe that he may be arrested on an accusation of
having committed “a non-bailable offence”. We see no
warrant for reading into this provision the conditions
H subject to which bail can be granted under Section 437
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 115
[S. RAVINDRA BHAT, J.]

(1) of the Code. That section, while conferring the power A
to grant bail in cases of non-bailable offences, provides
by way of an exception that a person accused or suspected
of the commission of a non-bailable offence “shall not be
so released” if there appear to be reasonable grounds for
believing that he has been guilty of an offence punishable
B
with death or imprisonment for life. If it was intended that
the exception contained in Section 437 (1) should govern
the grant of relief under Section 438 (1), nothing would
have been easier for the legislature than to introduce into
the latter section a similar provision. We have already
pointed out the basic distinction between these two sections. C
Section 437 applies only after a person, who is alleged to
have committed a non-bailable offence, is arrested or
detained without warrant or appears or is brought before
a court. Section 438 applies before the arrest is made and,
in fact, one of the pre-conditions of its application is that
D
the person, who applies for relief under it, must be able to
show that he has reason to believe that “he may be
arrested”, which plainly means that he is not yet arrested.
The nexus which this distinction bears with the grant or
refusal of bail is that in cases falling under Section 437,
there is some concrete data on the basis of which it is E
possible to show that there appear to be reasonable
grounds for believing that the applicant has been guilty of
an offence punishable with death or imprisonment for life.
In cases falling under Section 438 that stage is still to arrive
and, in the generality of cases thereunder, it would be
F
premature and indeed difficult to predicate that there are
or are not reasonable grounds for so believing. The
foundation of the belief spoken of in Section 437 (1), by
reason of which the court cannot release the applicant on
bail is, normally, the credibility of the allegations contained
in the First Information Report.” G
68. For the above reasons, the answer to the first question in the
reference made to this bench is that there is no offence, per se, which
stands excluded from the purview of Section 438, - except the offences
mentioned in Section 438 (4). In other words, anticipatory bail can be
granted, having regard to all the circumstances, in respect of all offences. H
116 SUPREME COURT REPORTS [2020] 2 S.C.R.

A At the same time, if there are indications in any special law or statute,
which exclude relief under Section 438 (1) they would have to be duly
considered. Also, whether anticipatory offences should be granted, in
the given facts and circumstances of any case, where the allegations
relating to the commission of offences of a serious nature, with certain
special conditions, is a matter of discretion to be exercised, having regard
B
to the nature of the offences, the facts shown, the background of the
applicant, the likelihood of his fleeing justice (or not fleeing justice);
likelihood of co-operation or non-co-operation with the investigating
agency or police, etc. There can be no inflexible time frame for which
an order of anticipatory bail can continue.
C 69. Therefore, this court holds that the view expressed in
Salauddin Abdulsamad Shaikh, K.L. Verma, Nirmal Jeet Kaur, Satpal
Singh, Adri Dharan Das, HDFC Bank, J.J. Manan and Naresh Kumar
Yadav (supra) about the Court of Sessions, or the High Court, being
obliged to grant anticipatory bail, for a limited duration, or to await the
D course of investigation, so as the “normal court” not being “bye passed”
or that in certain kinds of serious offences, anticipatory bail should not
be granted normally- including in economic offences, etc are not good
law. The observations – which indicate that such time related or
investigative event related conditions, should invariably be imposed at
the time of grant of anticipatory bail are therefore, overruled. Similarly,
E the observations in Mhetre that “the courts should not impose
restrictions on the ambit and scope of section 438 Cr.P.C. which are
not envisaged by the Legislature. The court cannot rewrite the
provision of the statute in the garb of interpreting it” is too wide and
cannot be considered good law. It is one thing to say that as a matter of
F law, ordinarily special conditions (not mentioned in Section 438 (2) read
with Section 437 (3) should not be imposed; it is an entirely different
thing to say that in particular instances, having regard to the nature
of the crime, the role of the accused, or some peculiar feature, special
conditions should not be imposed. The judgment in Sibbia itself is an
authority that such conditions can be imposed, but not in a routine or
G ordinary manner and that such conditions then become an inflexible
“formula” which the courts would have to follow. Therefore, courts and
can, use their discretion, having regard to the offence, the peculiar facts,
the role of the offender, circumstances relating to him, his likelihood of
subverting justice (or a fair investigation), likelihood of evading or fleeing
H justice- to impose special conditions. Imposing such conditions, would
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 117
[S. RAVINDRA BHAT, J.]

have to be on a case to case basis, and upon exercise of discretion by A
the court seized of the application under Section 438. In conclusion, it is
held that imposing conditions such as those stated in Section 437 (2)
while granting bail, are normal; equally, the condition that in the event of
the police making out a case of a likely discovery under Section 27 of
the Evidence Act, person released on bail shall be liable to be taken in
B
police custody for facilitating the discovery. Other conditions, which are
restrictive, are not mandatory; nor is there any invariable rule that they
should necessarily be imposed or that the anticipatory bail order would
be for a time duration, or be valid till the filing of the FIR, or the recording
of any statement under Section 161, Cr. PC, etc. Other conditions may
be imposed, if the facts of the case so warrant. C
Re Question No. 2: Whether the life of an anticipatory bail
should end at the time and stage when the accused is
summoned by the court.
70. The question here is whether there is anything in the law
which per se requires that upon filing of the charge-sheet, or the D
summoning of the accused, by the court – (or even the addition of an
offence in the charge-sheet, of which an applicant on bail is accused of
freshly), his liberty ought to be forfeited and that he should be asked to
surrender and apply for regular bail. The observations about the width
and amplitude of the power under Section 438, made in answer to the E
first question, are equally relevant here too. In the present context, further,
the judgment and observations of this Court in its interpretation of Section
167(2) are telling. It was held in Gursharan Singh (supra), the release
by grant of bail of an accused under Section 167(2) amounts to “deemed
bail”. This is borne out by Section 167(2) which states that anyone
released on bail under its provision “shall be deemed to be so released F
under the provisions of Chapter XXXIII for the purposes of that
Chapter.” The judgment in Aslam Babalal Desai (supra) has clarified
that when an accused is released by operation of Section 167(2) and
subsequently, a charge-sheet is filed, there is no question of the
cancellation of his bail. In these circumstances, the mere fact that an G
accused is given relief under Section 438 at one stage, per se does not
mean that upon the filing of a charge-sheet, he is necessarily to surrender
or/and apply for regular bail. The analogy to ‘deemed bail’ under Section
167(2) with anticipatory bail leads this court to conclude that the mere
subsequent event of the filing of a charge-sheet cannot compel the
H
118 SUPREME COURT REPORTS [2020] 2 S.C.R.

A accused to surrender and seek regular bail. As a matter of fact,
interestingly, if indeed, if a charge-sheet is filed where the accused is on
anticipatory bail, the normal implication would be that there was no
occasion for the investigating agency or the police to require his custody,
because there would have been nothing in his behavior requiring such a
step. In other words, an accused, who is granted anticipatory bail would
B
continue to be at liberty when the 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 that he had cooperated with the investigation.
At the same time, however, at any time during the investigation were
any occasion to arise calling for intervention of the court for infraction
C of any of the conditions imposed under Section 437(3) read with Section
438(2) or the violation of any other condition imposed in the given facts
of a case, recourse can always be had under Section 439(2).
71. Section 438 (3) states that when a person is granted anticipatory
bail, is later arrested without warrant by an officer in charge of a police
D station “on such accusation”, and is willing to give bail, “he shall be
released on bail; and if a Magistrate taking cognizance of such
offence decides that a warrant should issue in the first instance
against that person he shall issue a bailable warrant in conformity
with the direction of the Court under sub-section (1)”. The order
granting anticipatory bail, is also- as noticed earlier, and in several previous
E decisions, a “direction” under this Section 438 “that in the event of
such arrest” the applicant be released on bail. Therefore, when an
accused in fact is granted bail, and the conditions outlined in Section 438
(2) are included as part of the direction “to release” him in the event of
arrest, all the necessary conditions which he is obliged to follow exist.
F Section 438 (3) outlines the steps to be taken, in the event of arrest of
one who has been granted relief under Section 438 (1). In the event
of non-compliance with any or all conditions, imposed by the court, the
concerned agency or the police, a direction can be sought from the court
under Section 439 (2).
G 72. The view that this court expresses about the prosecution’s
option to apply for a direction to arrest the accused, finds support in
Pradeep Ram (supra) where this court held as follows:
“21. Both Sections 437 (5) and 439 (2) empowers the Court
to arrest an accused and commit him to custody, who has been
H released on bail under Chapter XXXIII. There may be numerous
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 119
[S. RAVINDRA BHAT, J.]

grounds for exercise of power under 437 (5) and 439 (2). A
The principles and grounds for cancelling a bail are well
settled, but in the present case, we are concerned only with
one aspect of the matter, i.e., a case where after accused has
been granted the bail, new and serious offences are added in
the case. A person against whom serious offences have been
B
added, who is already on bail can very well be directed to be
arrested and committed to custody by the Court in exercise of
power under 437 (5) and 439 (2). Cancelling the bail granted
to an accused and directing him to arrest and taken into
custody can be one course of the action, which can be adopted
while exercising power under 437 (5) and 439 (2), but there C
may be cases where without cancelling the bail granted to an
accused, on relevant consideration, Court can direct the
accused to be arrested and committed to custody. The addition
of serious offences is one of such circumstances, under which
the Court can direct the accused to be arrested and committed
D
to custody despite the bail having been granted with regard
to the offences with which he was charged at the time when
bail was considered and granted.
******** ******** ********
25. We may have again to look into provisions of Sections E
437 (5) and 439 (2) of Cr.P.C. Sub-section (5) of Sections
437 of Cr.P.C uses expression ‘if it considers it necessary so
to do, direct that such person be arrested and commit him to
custody’. Similarly, sub-section (2) of Section 439 of Cr.P.C.
provides: ‘may direct that any person who has been released
on bail under this Chapter be arrested and commit him to F
custody’. A plain reading of the aforesaid provisions indicates
that provision does not mandatorily provide that the Court
before directing arrest of such accused who has already been
granted bail must necessary cancel his earlier bail. A
discretion has been given to the Court to pass such orders to G
direct for such person be arrested and commit him to the
custody which direction may be with an order for cancellation
of earlier bail or permission to arrest such accused due to
addition of graver and non- cognizable offences. Two Judge
Bench judgment in Mithabhai Pashabhai Patel (supra) uses
H
120 SUPREME COURT REPORTS [2020] 2 S.C.R.

A the word ‘ordinarily’ in paragraph 18 of the judgment which
cannot be read as that mandatorily bail earlier granted to
the accused has to be cancelled before Investigating Officer
to arrest him due to addition of graver and non-cognizable
offences.
B ********* ******** ********
27. Relying on the above said order, learned counsel for the
appellant submits that respondent State ought to get first the
order dated 10.03.2016 granting bail to appellant cancelled
before seeking custody of the appellant. It may be true that
C by mere addition of an offence in a criminal case, in which
accused is bailed out, investigating authorities itself may not
proceed to arrest the accused and need to obtain an order
from the Court, which has released the accused on the bail. It
is also open for the accused, who is already on bail and with
regard to whom serious offences have been added to apply
D for bail in respect of new offences added and the Court after
applying the mind may either refuse the bail or grant the bail
with regard to new offences. In a case, bail application of the
accused for newly added offences is rejected, the accused
can very well be arrested. In all cases, where accused is bailed
E out under orders of the Court and new offences are added
including offences of serious nature, it is not necessary that
in all cases earlier bail should be cancelled by the Court
before granting permission to arrest an accused on the basis
of new offences. The power under Sections 437 (5) and 439
(2) are wide powers granted to the court by the Legislature
F under which Court can permit an accused to be arrested and
commit him to custody without even cancelling the bail with
regard to earlier offences. Sections 437 (5) and 439 (2) cannot
be read into restricted manner that order for arresting the
accused and commit him to custody can only be passed by
G the Court after cancelling the earlier bail.
28. Coming back to the present case, the appellant was already
into jail custody with regard to another case and the
investigating agency applied before Special Judge, NIA Court
to grant production warrant to produce the accused before
H the Court. The Special Judge having accepted the prayer of
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 121
[S. RAVINDRA BHAT, J.]

grant of production warrant, the accused was produced before A
the Court on 26.06.2018 and remanded to custody. Thus, in
the present case, production of the accused was with the
permission of the Court. Thus, the present is not a case where
investigating agency itself has taken into custody the
appellant after addition of new offences rather accused was
B
produced in the Court in pursuance of production warrant
obtained from the Court by the investigating agency. We, thus
do not find any error in the procedure which was adopted by
the Special Judge, NIA Court with regard to production of
appellant before the Court. In the facts of the present case, it
was not necessary for the Special Judge to pass an order C
cancelling the bail dated 10.03.2016 granted to the appellant
before permitting the accused appellant to be produced before
it or remanding him to the judicial custody.
29. In view of the foregoing discussions, we arrive at following
conclusions in respect of a circumstance where after grant of D
bail to an accused, further cognizable and non-bailable
offences are added:-
(i) The accused can surrender and apply for bail for newly
added cognizable and non-bailable offences. In event of
refusal of bail, the accused can certainly be arrested. E
(ii) The investigating agency can seek order from the court
under Sections 437 (5) or 439 (2) for arrest of the accused
and his custody.
(iii) The Court, in exercise of power under Sections 437 (5)
or 439 (2) of Cr.PC., can direct for taking into custody the F
accused who has already been granted bail after cancellation
of his bail. The Court in exercise of power under Sections
437 (5) as well as 439 (2) can direct the person who has
already been granted bail to be arrested and commit him to
custody on addition of graver and non-cognizable offences G
which may not be necessary always with order of cancelling
of earlier bail.
(iv) In a case where an accused has already been granted
bail, the investigating authority on addition of an offence or
offences may not proceed to arrest the accused, but for
H
122 SUPREME COURT REPORTS [2020] 2 S.C.R.

A arresting the accused on such addition of offence or offences
it need to obtain an order to arrest the accused from the Court
which had granted the bail.”
73. Earlier, in the decision reported as Dolat Ram v State of
Haryana44 this court had observed that
B “bail once granted should not be cancelled in a mechanical
manner without considering whether any supervening
circumstances have rendered it no longer conducive to a fair
trial to allow the accused to retain his freedom by enjoying
the concession of bail during the trial.”
C 74. This decision was followed, and its ratio applied, in Hazari
Lal Das v State of West Bengal & Anr45. The decision in Bhadresh
Bipinbhai Sheth v. State of Gujarat 46 stated, after culling out the
principles in Mhetre, as follows:
“25.6. It is a settled legal position that the court which grants
D the bail also has the power to cancel it. The discretion of
grant or cancellation of bail can be exercised either at the
instance of the accused, the Public Prosecutor or the
complainant, on finding new material or circumstances at any
point of time.
E 25.7. In pursuance of the order of the Court of Session or the
High Court, once the accused is released on anticipatory bail
by the trial court, then it would be unreasonable to compel
the accused to surrender before the trial court and again
apply for regular bail.
F 25.8. Discretion vested in the court in all matters should be
exercised with care and circumspection depending upon the
facts and circumstances justifying its exercise. Similarly, the
discretion vested with the court under Section 438 CrPC
should also be exercised with caution and prudence. It is
unnecessary to travel beyond it and subject the wide power
G
and discretion conferred by the legislature to a rigorous code
of self-imposed limitations.

44
1995 (1) SCC 349
45
2009 (10) SCC 652
H 46
2016 (1) SCC 152
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 123
[S. RAVINDRA BHAT, J.]

25.9. No inflexible guidelines or straitjacket formula can be A
provided for grant or refusal of the anticipatory bail because
all circumstances and situations of future cannot be clearly
visualised for the grant or refusal of anticipatory bail. In
consonance with legislative intention, the grant or refusal of
anticipatory bail should necessarily depend on the facts and
B
circumstances of each case.”
75. The three-judge decision in Sudhir v. Maharastra47 noticed
the decision in Bipin Bhadresh Sheth (supra) and did not disapprove it.
However, the court did not grant relief, given that anticipatory bail was
declined initially, and the application to the High Court was withdrawn,
after which a second anticipatory bail was granted. The High Court C
cancelled the grant of relief. This court affirmed the High Court’s view.
In that judgment, Bipin Bhadresh Sheth was noticed, while considering
the scope of the power under Section 439 (2). In another decision, Arvind
Tiwary v. State of Bihar48 the issue was whether the anticipatory bail,
granted subject to certain conditions, earlier, which had been considered D
by this court, could be cancelled. The conditions included, inter alia,
that sums were to be secured by bank guarantee. The aggrieved
corporation directed that the “defalcated sum” specified in respect of
every accused should be secured through such guarantee. Upon failure
to comply with that demand, an order of cancellation was sought. This
court held that cancellation could not be resorted to on the assumption E
that the applicants were guilty. Similarly, in Mahant Chand Yogi v. State
of Haryana, 49 Padmakar Tukaam Bhavnagare v. State of
Maharastra,50 X v. State of Telangana,51 and several other judgments
the same views were expressed.
76. Therefore, unless circumstances to the contrary: in the form F
of behaviour of the accused suggestive of his fleeing from justice, or
evading the authority or jurisdiction of the court, or his intimidating
witnesses, or trying to intimidate them, or violate any condition imposed
while granting anticipatory bail, the law does not require the person to
surrender to the court upon summons for trial being served on him. Subject G
to compliance with the conditions imposed, the anticipatory bail given to
47
2016 (1) SCC 146
48
2018 (8) SCC 475
49
2003 (1) SCC 236
50
2012 (13) SCC 720
51
(2018) 16 SCC 511 H
124 SUPREME COURT REPORTS [2020] 2 S.C.R.

A a person, can continue till end of the trial. This answers question No. 2
referred to the present Bench.
Conclusions
77. This court answers the reference in the following manner:

B (1) Regarding question No. 1, it is held that the protection
granted under Section 438 Cr. PC should not always or ordinarily
be limited to a fixed period; it should inure in favour of the
accused without any restriction as to time. Usual or standard
conditions under Section 437 (3) read with Section 438 (2)
should be imposed; if there are peculiar features in regard to
C any crime or offence (such as seriousness or gravity etc.), it is
open to the court to impose any appropriate condition (including
fixed nature of relief, or its being tied to an event or time bound)
etc.
(2) The second question referred to this court is answered, by
D holding that the life of an anticipatory bail does not end generally
at the time and stage when the accused is summoned by the
court, or after framing charges, but can also continue till the
end of the trial. However, 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.
E
78. Having regard to the above discussion, it is clarified that the
court should keep the following points as guiding principles, in dealing
with applications under Section 438, Cr. PC:
(a) As held in Sibbia, when a person apprehends arrest and
approaches a court for anticipatory bail, his apprehension (of
F
arrest), has to be based on concrete facts (and not vague or general
allegations) relatable a specific offence or particular of offences.
Applications for anticipatory bail should contain clear and essential
facts relating to the offence, and why the applicant reasonably
apprehends his or her arrest, as well as his version of the facts.
G These are important for the court which considering the application,
to extent and reasonableness of the threat or apprehension, its
gravity or seriousness and the appropriateness of any condition
that may have to be imposed. It is not a necessary condition that
an application should be moved only after an FIR is filed; it can be
moved earlier, so long as the facts are clear and there is reasonable
H basis for apprehending arrest.
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 125
[S. RAVINDRA BHAT, J.]

(b) The court, before which an application under Section 438, is A
filed, depending on the seriousness of the threat (of arrest) as a
measure of caution, may issue notice to the public prosecutor and
obtain facts, even while granting limited interim anticipatory
bail.
(c) Section 438 Cr. PC does not compel or oblige courts to impose B
conditions limiting relief in terms of time, or upon filing of FIR, or
recording of statement of any witness, by the police, during
investigation or inquiry, etc. While weighing and considering an
application (for grant of anticipatory bail) the court has to consider
the nature of the offence, the role of the person, the likelihood of
his influencing the course of investigation, or tampering with C
evidence (including intimidating witnesses), likelihood of fleeing
justice (such as leaving the country), etc. The courts would be
justified – and ought to impose conditions spelt out in Section 437
(3), Cr. PC [by virtue of Section 438 (2)]. The necessity to impose
other restrictive conditions, would have to be weighed on a case
D
by case basis, and depending upon the materials produced by the
state or the investigating 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. 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, E
such limiting conditions may not be invariably imposed.
(d) Courts ought to be generally guided by the considerations such
nature and gravity of the offences, the role attributed to the
applicant, and the facts of the case, while assessing whether to
grant anticipatory bail, or refusing it. Whether to grant or not is a F
matter of discretion; equally whether, and if so, what kind of special
conditions are to be imposed (or not imposed) are dependent on
facts of the case, and subject to the discretion of the court.
(e) Anticipatory bail granted can, depending on the conduct and
behavior of the accused, continue after filing of the charge sheet
G
till end of trial. Also orders of anticipatory bail should not be
“blanket” in the sense that it should not enable the accused to
commit further offences and claim relief. It should be confined to
the offence or incident, for which apprehension of arrest is sought,
in relation to a specific incident. It cannot operate in respect of a
future incident that involves commission of an offence. H
126 SUPREME COURT REPORTS [2020] 2 S.C.R.

A (f) Orders of anticipatory bail do not in any manner limit or restrict
the rights or duties of the police or investigating agency, to
investigate into the charges against the person who seeks and is
granted pre-arrest bail.
(g) The observations in Sibbia regarding “limited custody” or
B “deemed custody” to facilitate the requirements of the investigative
authority, would be sufficient for the purpose of fulfilling the
provisions of Section 27, in the event of recovery of an article, or
discovery of a fact, which is relatable to a statement made during
such event (i.e. deemed custody). In such event, there is no question
(or necessity) of asking the accused to separately surrender and
C seek regular bail. Sibbia (supra) had observed that “if and when
the occasion arises, it may be possible for the prosecution to
claim the benefit of Section 27 of the Evidence Act in regard
to a discovery of facts made in pursuance of information
supplied by a person released on bail by invoking the principle
stated by this Court in State of U.P. v Deoman Upadhyaya.”
D
(h) It is open to the police or the investigating agency to move the
court concerned, which granted anticipatory bail, in the first
instance, for a direction under Section 439 (2) to arrest the accused,
in the event of violation of any term, such as absconding, non-
cooperating during investigation, evasion, intimidation or inducement
E to witnesses with a view to influence outcome of the investigation
or trial, etc. The court – in this context is the court which grants
anticipatory bail, in the first instance, according to prevailing
authorities.
(i) The correctness of an order granting bail, can be considered
F 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.
(See Prakash Kadam & Etc. Etc vs Ramprasad Vishwanath
Gupta & Anr52; Jai Prakash Singh (supra) State through C.B.I.
vs. Amarmani Tripathi53). This does not amount to “cancellation”
G
in terms of Section 439 (2), Cr. PC.
(j) The judgment in Mhetre (and other similar decisions)restrictive
conditions cannot be imposed at all, at the time of granting
anticipatory bail are hereby overruled. Likewise, the decision in
52
(2011) 6 SCC 189
H 53
(2005) 8 SCC 21
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 127
[S. RAVINDRA BHAT, J.]

Salauddin and subsequent decisions (including K.L. Verma, A
Nirmal Jeet Kaur) which state that such restrictive conditions, or
terms limiting the grant of anticipatory bail, to a period of time are
hereby overruled.
79. In conclusion, it would be useful to remind oneself that the
rights which the citizens cherish deeply, are fundamental- it is not the B
restrictions that are fundamental. Joseph Story, the great jurist and US
Supreme Court judge, remarked that “personal security and private
property rest entirely upon the wisdom, the stability, and the integrity
of the courts of justice.”
80. The history of our republic – and indeed, the freedom C
movement has shown how the likelihood of arbitrary arrest and indefinite
detention and the lack of safeguards played an important role in rallying
the people to demand independence. Witness the Rowlatt Act, the
nationwide protests against it, the Jallianwalla Bagh massacre and several
other incidents, where the general public were exercising their right to
protest but were brutally suppressed and eventually jailed for long. The D
specter of arbitrary and heavy-handed arrests: too often, to harass and
humiliate citizens, and oftentimes, at the interest of powerful individuals
(and not to further any meaningful investigation into offences) led to the
enactment of Section 438. Despite several Law commission reports and
recommendations of several committees and commissions, arbitrary and
groundless arrests continue as a pervasive phenomenon. Parliament has E
not thought it appropriate to curtail the power or discretion of the courts,
in granting pre-arrest or anticipatory bail, especially regarding the duration,
or till charge sheet is filed, or in serious crimes. Therefore, 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 F
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.
81. The reference is hereby answered in the above terms.
G

ARUN MISHRA, INDIRA BANERJEE AND VINEET
SARAN, JJ.
We have seen the drafts of Justice M.R. Shah and Justice S.
Ravindra Bhat and are in agreement with them. Since there is no H
128 SUPREME COURT REPORTS [2020] 2 S.C.R.

A difference of opinion between the two, we are in agreement with the
reasoning of Justice M.R. Shah and Justice S. Ravindra Bhat that the
conclusions in Shri Gurbaksh Singh Sibbia and others v. State of
Punjab 1980 (2) SCC 565 needs reiteration and further that the restrictive
manner in which Section 438 of the Cr.PC has been interpreted in
Salauddin Abdulsamad Shaikh v. State of Maharashtra 1996 (1)
B SCC 667 is incorrect. Therefore, we agree that Salauddin (supra) and
other cases which have followed it needs to be overruled. Similarly, the
wide interpretation in Siddharam Satlingappa Mhetre v. State of
Maharashtra & Ors. 2011 (1) SCC 694, i.e. that no conditions can be
imposed while granting an order of anticipatory bail, is incorrect. Mhetre
C (supra) to that extent and other judgments which have followed it are
accordingly overruled.
In view of the said conclusions, we are in agreement with the
answers to the reference made to the larger Bench.

D
ARUN MISHRA, INDIRA BANERJEE, VINEET SARAN,
M. R. SHAH AND S. RAVINDRA BHAT, JJ.
FINAL CONCLUSIONS:
In view of the concurring judgments of Justice M.R. Shah and of
E Justice S. Ravindra Bhat with Justice Arun Mishra, Justice Indira
Banerjee and Justice Vineet Saran agreeing with them, the following
answers to the reference are set out:
(1) Regarding Question No. 1, this court holds that the protection
granted to a person under Section 438 Cr. PC should not invariably be
F limited to a fixed period; it should inure in favour of the accused without
any restriction on time. Normal conditions under Section 437 (3) read
with Section 438 (2) should be imposed; 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.
G
(2) As regards the second question referred to this court, 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
H limit the tenure of anticipatory bail, it is open for it to do so.
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 129
[ARUN MISHRA, INDIRA BANERJEE, VINEET SARAN, M. R. SHAH AND
S. RAVINDRA BHAT, JJ.]
1. This court, in the light of the above discussion in the two A
judgments, and in the light of the answers to the reference, hereby
clarifies that the following need to be kept in mind by courts, dealing
with applications under Section 438, Cr. PC:
(1) Consistent with the judgment in Shri Gurbaksh Singh Sibbia
and others v. State of Punjab 54 , when a person complains of B
apprehension of arrest and approaches for order, the application should
be based on concrete facts (and not vague or general allegations) relatable
to one or other specific offence. The application seeking anticipatory
bail should contain bare essential facts relating to the offence, and why
the applicant reasonably apprehends arrest, as well as his side of the
story. These are essential for the court which should consider his C
application, to evaluate the threat or apprehension, its gravity or
seriousness and the appropriateness of any condition that may have to
be imposed. It is not essential that an application should be moved only
after an FIR is filed; it can be moved earlier, so long as the facts are
clear and there is reasonable basis for apprehending arrest.
D
(2) 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.
(3) Nothing in Section 438 Cr. PC, compels or obliges courts to E
impose conditions limiting relief in terms of time, or upon filing of FIR, or
recording of statement of any witness, by the police, during investigation
or inquiry, etc. While considering an application (for grant of anticipatory
bail) the court has to consider the nature of the offence, the role of the
person, the likelihood of his influencing the course of investigation, or
tampering with evidence (including intimidating witnesses), likelihood of F
fleeing justice (such as leaving the country), etc. The courts would be
justified – and ought to impose conditions spelt out in Section 437 (3), Cr.
PC [by virtue of Section 438 (2)]. The 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 investigating agency.
G
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. 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.
54
1980 (2) SCC 565 H
130 SUPREME COURT REPORTS [2020] 2 S.C.R.

A (4) Courts ought to be generally guided by considerations such as
the nature and gravity of the offences, the role attributed to the applicant,
and the facts of the case, while considering whether to grant anticipatory
bail, or refuse it. Whether to grant or not is a matter of discretion; equally
whether and if so, what kind of special conditions are to be imposed (or
not imposed) are dependent on facts of the case, and subject to the
B discretion of the court.
(5) Anticipatory bail granted can, depending on the conduct and
behavior of the accused, continue after filing of the charge sheet till end
of trial.

C (6) 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 should be confined
to the offence or incident, for which apprehension of arrest is sought, in
relation to a specific incident. It cannot operate in respect of a future
incident that involves commission of an offence.
D (7) An order of anticipatory bail does not in any manner limit or
restrict the rights or duties of the police or investigating agency, to
investigate into the charges against the person who seeks and is granted
pre-arrest bail.
(8) The observations in Sibbia regarding “limited custody” or
E “deemed custody” to facilitate the requirements of the investigative
authority, would be sufficient for the purpose of fulfilling the provisions
of Section 27, in the event of recovery of an article, or discovery of a
fact, which is relatable to a statement made during such event (i.e deemed
custody). In such event, there is no question (or necessity) of asking the
accused to separately surrender and seek regular bail. Sibbia (supra)
F
had observed that “if and when the occasion arises, it may be possible
for the prosecution to claim the benefit of Section 27 of the Evidence
Act in regard to a discovery of facts made in pursuance of information
supplied by a person released on bail by invoking the principle
stated by this Court in State of U.P. v Deoman Upadhyaya.”
G (9) It is open to the police or the investigating agency to move the
court concerned, which grants anticipatory bail, for a direction under
Section 439 (2) to arrest the accused, in the event of violation of any
term, such as absconding, non-cooperating during investigation, evasion,
intimidation or inducement to witnesses with a view to influence outcome
H of the investigation or trial, etc.
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 131
[ARUN MISHRA, INDIRA BANERJEE, VINEET SARAN, M. R. SHAH AND
S. RAVINDRA BHAT, JJ.]
(10) The court referred to in para (9) above is the court which A
grants anticipatory bail, in the first instance, according to prevailing
authorities.
(11) 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 B
consider material facts or crucial circumstances. (See Prakash Kadam
& Etc. Etc vs Ramprasad Vishwanath Gupta & Anr55; Jai Prakash
Singh (supra) State through C.B.I. vs. Amarmani Tripathi 56). This
does not amount to “cancellation” in terms of Section 439 (2), Cr. PC.
(12) The observations in Siddharam Satlingappa Mhetre v. State C
of Maharashtra & Ors57(and other similar judgments) that no restrictive
conditions at all can be imposed, while granting anticipatory bail are
hereby overruled. Likewise, the decision in Salauddin Abdulsamad
Shaikh v. State of Maharashtra58and subsequent decisions (including
K.L. Verma v. State & Anr59; Sunita Devi v. State of Bihar & Anr60;
Adri Dharan Das v. State of West Bengal 61; Nirmal Jeet Kaur v. D
State of M.P. & Anr62; HDFC Bank Limited v. J.J. Mannan63; Satpal
Singh v. the State of Punjab64and Naresh Kumar Yadav v Ravindra
Kumar65) which lay down such restrictive conditions, or terms limiting
the grant of anticipatory bail, to a period of time are hereby overruled.
2. The reference is hereby answered in the above terms. E

Divya Pandey Reference answered.

F

55
(2011) 6 SCC 189
56
(2005) 8 SCC 21
57
2011 (1) SCC 694
58
(1996 (1) SCC 667) G
59
1998 (9) SCC 348
60
2005 (1) SCC 608
61
2005 (4) SCC 303
62
2004 (7) SCC 558
63
2010 (1) SCC 679
64
2018 SCC Online (SC 415
65
2008 (1) SCC 632 H