Indian Law Research

Sushila Aggarwal v. State (NCT of Delhi)

Decision date:

Court
Supreme Court of India
Decision date
29 January 2020
Citation / docket
2020 INSC 106; (2020) 5 SCC 1
Source length
131 PDF pages
Review status
AI-assisted draft; not reviewed by a lawyer
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Draft summary

Written with AI assistance from the source judgment. Not reviewed by a lawyer. Historical decision summary, independently checked by an AI reviewer; not a current-law certification.

In one sentence

Anticipatory bail need not ordinarily expire after a fixed period or at the filing of a charge sheet, but courts may impose justified conditions.

Question decided

Must protection under section 438 CrPC be time-limited, and does it ordinarily end when the accused is summoned or charges are framed?

Key holdings

Outcome

The Constitution Bench answered the reference and clarified the governing principles; it did not grant universal immunity from arrest.

Source PDF pages: 128, 129, 130, 131.

Plain-English explanation

The Constitution Bench addressed conflicting approaches to the duration of anticipatory bail under the Code of Criminal Procedure, 1973. Its central point was that protection should not routinely be given an expiry date simply because a charge sheet will be filed or the trial court will summon the accused. Depending on the facts and compliance with conditions, protection may continue until the trial ends. This does not mean that every applicant must receive anticipatory bail. The court must consider the allegations, the applicant's role, the risk of interference with evidence or witnesses, and the likelihood of evading justice. An applicant must identify a real apprehension connected with a particular offence or incident. Courts may impose appropriate conditions, including a time limit where the particular circumstances justify it. Investigation can continue, and misuse of the protection can lead to further court orders. The decision therefore concerns how judicial discretion should operate, rather than a promise of unconditional or permanent protection. This explanation describes the 2020 CrPC decision; application under later legislation needs a separate check.

Relevant law in the judgment

Separate opinions

The report contains separate opinions and the Bench's final conclusions. The summary prioritises the final collective conclusions.

Research notes and limits

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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 
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. 
SUSHILA AGGARWAL v. STATE (NCT OF DELHI)

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22 SUPREME COURT REPORTS [2020] 2 S.C.R. 
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 S CC 303, 
the following questions are referred for consideration 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 
and stage when the accused is summoned by the court.” 
2. Shri Harin P . Raval, learned Senior Advocate appearing a s 
Amicus Curiae relying upon the decision of this Court in the cas e of 
Balchand Jain v. State of M.P . (1976) 4 SCC 572  has submitted that 
though the expression “anticipatory bail” has not been define d in the 
Code, as observed by this Court in the aforesaid decision, “anticipatory 
bail” means “bail in anticipation of arrest”. It is submi tted that in the 
aforesaid decision, this Court has further observed that the expr ession 
“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, 
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 41 st 
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 41 st  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 
“anticipatory bail” arises mainly because sometimes influential persons 
try to implicate their rivals in false cases for the purp ose of disgracing 
them or for other purposes by getting them detained in jai l for some 
days. It is submitted that the Law Commission further ob served that 
with the accentuation of political rivalry, this tendency is showing signs 
of steady increase. Apart from false cases, where there a re reasonable

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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 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 
that the “anticipatory bail” can be applied at differ ent stages. It is 
submitted that even in a case where no FIR is lodged and a p erson is 
apprehending his arrest in case the FIR is lodged, in that c ase, he can 
apply for “anticipatory bail” and after notice to the Pub lic Prosecutor 
the Court can grant “anticipatory bail”. It is submitte d that even in a 
case where the FIR is lodged but the investigation has n ot yet begun, 
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 
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 
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 41 st  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 
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 impr isoned, on 
security being taken for his appearance”. It is submitted that thus, bail is 
basically release from restraint, more particularly, release from the 
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 
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 
[M. R. SHAH, J.]

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24 SUPREME COURT REPORTS [2020] 2 S.C.R. 
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 disti nction 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 
therefore effective at the very moment of arrest. It is subm itted that in 
other words, unlike a post-arrest order of bail, it is a p re-arrest legal 
process which directs that if the person in whose favour it i s issued is 
thereafter arrested on the accusation in respect of which the direction is 
issued, he shall be released on bail. 
2.4 Shri Harin P. Raval, learned Senior Advocate appearing as 
Amicus Curiae has further submitted that however the core ques tions 
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, wheth er the said 
anticipatory bail only survives till the stage of fil ing of charge sheet/ 
challan/final report or whether it subsists during the entire dura tion of 
trial?. It is further submitted by Shri Raval that one ano ther question 
may arise, namely, in a case where if new incriminating ma terials 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? 
2.5 It is submitted that, as such, the aforesaid questions ar e 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 
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 balanc e the two 
competing interests, viz., protecting the liberty of the ac cused and the 
sovereign power of the police to conduct a fair investigation. Shri Raval, 
learned Amicus Curiae has heavily relied upon the observati ons made 
by the Constitution Bench of this Court in paragraphs 42 & 43 of 
Gurbaksh Singh Sibbia (supra) .

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2.6 It is further submitted by Shri Raval that in the subse quent 
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 
anticipatory bail is curtailed, in case circumstanc es 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 
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 
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 t ime 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 
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, 
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 
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 
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 
[M. R. SHAH, J.]

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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 Rava l, learned 
Amicus Curiae has concluded as under: 
1) that the power vested by the Parliament on superior c riminal 
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 
inheres in this discretion, the additional power to limit the durati on 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 inte rdict the 
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 purp oses 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 
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 b eing 
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 
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-fil ing 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

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where an accused is released on anticipatory bail, the inv estigation 
authorities may not be subjected to adherence to filing of charg e sheet 
within 90 days as there would be no consequence as the accused is 
already enlarged on bail. It may therefore be safer to adher e to the 
earlier practice evolved by judicial precedents to rest rict the operation 
of life of the order granting anticipatory bail for 10 days of arrest, leaving 
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 ar e 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; 
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. 
3. Shri K.V . Vishwanathan, learned Senior Advocate who was 
also requested to assist us as an Amicus Curiae has submi tted 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 
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 
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
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 eve ry FIR that is 
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 
[M. R. SHAH, J.]

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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 (201 4) 
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 
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 a llowed to 
be exercised. It is submitted that exercising power of arre st in such 
cases would be a grave violation of a person’s right and lib erty. It is 
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 onl y post 
facto . It is submitted that by then the person arrested ha s already 
suffered the trauma and humiliation of arrest. 
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 ar rest and the 
rights of the accused, this power was 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 and not at the magisteri al 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 41 st  Report of the 
Law Commission and the observations made in the Repor t of the 
Committee on Reforms of the Criminal Justice system, headed b y 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 
false cases, but also in cases where the need to arrest doe s not arise.

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3.5 It is further submitted that even otherwise a bare re ading of 
the Section shows that there is nothing in the language of the Section 
which goes to show that the pre-arrest bail granted under Sec tion 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 
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 pers on 
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; 
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 gr anted 
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 t hat 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 
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 di rect the 
arrest of the accused at any time. It is submitted that t his ensures that 
through judicial intervention the balance between the two compe ting 
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 
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 
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 
[M. R. SHAH, J.]

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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 th is 
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 
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 Be nch of 
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) 
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 li mited 
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 de cision of the 
Constitution Bench in Gurbaksh Singh Sibbia (supra) , which 
specifically states that the “normal rule” to not lim it the order of 
anticipatory bail. It is submitted that therefore the e xtreme 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

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is submitted that in a case, with justifiable reasons, to be recorded in 
writing, indicating reasons to deviate from the “nor mal rule”, the 
anticipatory bail can be granted for a limited time pe riod, 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 
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 submitte d that 
there cannot be a straightjacket formula. It is submit ted 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 
upon the circumstances warranting cancellation of such bai l or such 
interference. It is submitted that the statute does not contemplate an 
automatic cancellation upon filing of charge sheet and theref ore 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 
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 a re 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 
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 
is providing protection only during the process of investigation and the 
accused should seek regular bail upon submission of the ch arge 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 Sec tion 438 Cr.P .C. 
shall not affect the right of the investigating agency to s eek custodial 
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 
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 
[M. R. SHAH, J.]

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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 a nd 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. 
5.2 At the end, Shri Banerjee, learned ASG has submitted th at 
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 fina l report/ 
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. 
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 ap plication for 
anticipatory bail. It is submitted that the Constitution Bench has refused 
to impose any limitation or conditions, which are not imposed by t he 
Parliament. 
6.1 It is further submitted by the learned Counsel appeari ng on 
behalf of respondent no.2 that the decision of the Constitution B ench 
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 t hat the 
decision of this Court in Salauddin Abdulsamad Shaikh (supra) and 
subsequent judgments following Salauddin Abdulsamad Shaikh 
(supra) are all per incuriam. 
6.2 It is further submitted by the learned Counsel appeari ng 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

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granting anticipatory bail may, keeping in view the pecu liar facts and 
circumstances of the case, limit the duration of anticipator y 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 
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 ambigui ty in the 
judgment of the Constitution Bench, this Court may reiterate the judgment 
of the Constitution Bench in Gurbaksh Singh Sibbia (supra) .
7. We have heard the learned counsel for the respective par ties 
at length. 
In the light of the conflicting views of the different Benches of 
varying strength, the following questions are referred for consideration 
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 
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 
“anticipatory bail” is a misnomer inasmuch as it is not as if bail is presently 
granted by the Court in anticipation of arrest. An a pplication 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 
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 gr anting the 
“anticipatory bail” it is ultimately for the concerned cour t to impose 
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 
[M. R. SHAH, J.]

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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 
between the pre-arrest bail order under Section 438 and the ba il order 
under Section 437 & 439 of the Cr.P.C. The only difference betwe en 
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 a nd in 
anticipation of his arrest and the order of bail under Secti ons 437 and 
439 is after a person is arrested. A bare reading of Sect ion 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. 
7.2 While considering the issues referred to a larger Bench, 
referred to hereinabove, the decision of the Constitution Bench o f 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 
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 
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. 
(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 
the power to grant anticipatory bail.

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(5) Where a legitimate case for the remand of the offender  to 
the police custody under Section 167(2) can be made out by 
the investigating agency or a reasonable claim to secur e 
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 
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 t hat 
such a charge appears to be false or groundless. 
(7) The larger interest of the public and State demand that  in 
serious cases like economic offences involving blat ant 
corruption at the higher rungs of the executive and political 
power, the discretion under Section 438 of the Code should 
not be exercised; and 
(8) Mere general allegations of mala fides in the petition a re 
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” und er 
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 
which the legislature itself did not think it proper or nece ssary 
to impose. This is especially true when the statutory prov ision 
which falls for consideration is designed to secure a valuable 
right like the right to personal freedom and involv es the 
application of a presumption as salutary and deep gra ined 
in our criminal jurisprudence as the presumption of
innocence. Though the right to apply for anticipato ry bail 
was conferred for the first time by Section 438, while en acting 
that provision the legislature was not writing on a clean sla te 
in the sense of taking an unprecedented step, insofa r as the 
right to apply for bail is concerned. It had before it two cognate 
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 
[M. R. SHAH, J.]

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36 SUPREME COURT REPORTS [2020] 2 S.C.R. 
provisions of the Code: Section 437 which deals wit h the 
power of courts other than the Court of Session and the High 
Court to grant bail in non-bailable cases and Secti on 439 
which deals with the “special powers” of the High Court and 
the Court of Session regarding bail….. 
The provisions of Sections 437 and 439 furnished a 
convenient model for the legislature to copy while e nacting 
Section 438. If it has not done so and has departed  from a 
pattern which could easily be adopted with the nece ssary 
modifications, it would be wrong to refuse to give to the 
departure its full effect by assuming that it was not i ntended 
to serve any particular or specific purpose. The de parture, 
in our opinion, was made advisedly and purposefully : 
Advisedly, at least in part, because of the 41st Report o f the 
Law Commission which, while pointing out the necess ity of 
introducing a provision in the Code enabling the High Court 
and the Court of Session to grant anticipatory bail, s aid in 
para 39.9 that it had “considered carefully the ques tion of 
laying down in the statute certain conditions under  which 
alone anticipatory bail could be granted” but had c ome to 
the conclusion that the question of granting such bail should 
be left “to the discretion of the court” and ought n ot 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 co nferred a 
wide discretion on the High Court and the Court of Sessi on 
to grant anticipatory bail because it evidently felt, fir stly, that 
it would be difficult to enumerate the conditions under which 
anticipatory bail should or should not be granted a nd 
secondly, because the intention was to allow the higher cou rts 
in the echelon a somewhat free hand in the grant of relief in
the nature of anticipatory bail. That is why, departin g from 
the terms of Sections 437 and 439, Section 438(1) us es the 
language that the High Court or the Court of Session “may, 
if it thinks fit” direct that the applicant be releas ed on bail. 
Sub-section (2) of Section 438 is a further and cle arer 
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 issui ng a

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direction for the grant of anticipatory bail, “may include s uch 
conditions in such directions in the light of the fact s of the 
particular case, as it may think fit”, including the condi tions 
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 undoubted ly be 
resolved by resort to extraneous aids but words, as wide a nd 
explicit as have been used in Section 438, must be given the ir 
full effect, especially when to refuse to do so wil l result in 
undue impairment of the freedom of the individual a nd the 
presumption of innocence. It has to be borne in min d that 
anticipatory bail is sought when there is a mere apprehens ion 
of arrest on the accusation that the applicant has commi tted 
a non- bailable offence. A person who has yet to lo se his 
freedom by being arrested asks for freedom in the e vent of 
arrest. That is the stage at which it is imperative to pr otect his 
freedom, insofar as one may, and to give full play to the 
presumption that he is innocent. In fact, the stage a t which 
anticipatory bail if generally sought brings about its strik ing 
dissimilarity with the situation in which a person who is 
arrested for the commission of a non-bailable offen ce asks 
for bail. In the latter situation, adequate data is available to 
the court, or can be called for by it, in the light o f which it 
can grant or refuse relief and while granting it, modify  it by 
the imposition of all or any of the conditions ment ioned in 
Section 437. 
13.  This is not to say that anticipatory bail, if granted, 
must be granted without the imposition of any conditions. That 
will be plainly contrary to the very terms of Secti on 438. 
Though sub-section (1) of that section says that th e court 
“may, if it thinks fit” issue the necessary directio n 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 men tioned 
in clauses (i) to (iv) of that sub-section. The con troversy 
therefore is not whether the court has the power to impose 
conditions while granting anticipatory bail. It cle arly and 
expressly has that power. The true question is whether by  a 
process of construction, the amplitude of judicial disc retion 
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 
[M. R. SHAH, J.]

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38 SUPREME COURT REPORTS [2020] 2 S.C.R. 
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 in to the 
statute conditions which are not to be found therein, like those
evolved by the High Court or canvassed by the learn ed 
Additional Solicitor General. Our answer, clearly a nd 
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 
conditions as the case may warrant. Similarly, they m ust be 
left free to refuse bail if the circumstances of th e case so 
warrant, on considerations similar to those mention ed in 
Section 437 or which are generally considered to be relevant 
under Section 439 of the Code. 
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 dea th or 
imprisonment for life unless, the court at the stage of granti ng 
anticipatory bail, is satisfied that such a charge app ears 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 pr ovision 
the conditions subject to which bail can be granted  under 
Section 437(1) of the Code. That section, while con ferring 
the power to grant bail in cases of non-bailable of fences, 
provides by way of an exception that a person accus ed 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 punish able 
with death or imprisonment for life. If it was intended th at 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 t he latter

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section a similar provision. We have already pointed out  the 
basic distinction between these two sections. Secti on 437 
applies only after a person, who is alleged to have committ ed 
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 the person, who applies for relief 
under it, must be able to show that he has reason to believ e 
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 Secti on 
437, there is some concrete data on the basis of which  it is 
possible to show that there appear to be reasonable grounds 
for believing that the applicant has been guilty of an offenc e 
punishable with death or imprisonment for life. In cases falli ng 
under Section 438 that stage is still to arrive and , in the 
generality of cases thereunder, it would be prematu re 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 wh ich the 
court cannot release the applicant on bail is, norma lly, the 
credibility of the allegations contained in the first inf ormation 
report. In the majority of cases falling under Sect ion 438, 
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 transplantatio n 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 
read as containing the clause that the applicant “shal l not” 
be released on bail “if there appear reasonable ground s for 
believing that he has been guilty of an offence pun ishable 
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 Ses sion 
“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 thi nks 
fit”, which occurs in Section 438(1) in relation to the powe r 
of the High Court or the Court of Session, is conspicu ously 
absent in Section 437(1). We see no valid reason for rewriting 
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 
[M. R. SHAH, J.]

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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. According ly, we 
are unable to endorse the view of the High Court th at 
anticipatory bail cannot be granted in respect of o ffences 
like criminal breach of trust for the mere reason t hat the 
punishment provided therefor is imprisonment for li fe. 
Circumstances may broadly justify the grant of bail in  such 
cases too, though of course, the court is free to r efuse 
anticipatory bail in any case if there is material before it 
justifying such refusal. 
19.  A great deal has been said by the High Court on the 
fifth proposition framed by it, according to which, inter a lia, 
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 likel y to be 
received from the offender under Section 27 of the Evid ence 
Act. According to the High Court, it is the right and the du ty 
of the police to investigate into offences brought to their  notice 
and therefore, courts should be careful not to exerci se their 
powers in a manner which is calculated to cause interference 
therewith. ….. An order of anticipatory bail does not i n any 
way, directly or indirectly, take away from the pol ice their 
right to investigate into charges made or to be made against 
the person released on bail. In fact, two of the usual condition s 
incorporated in a direction issued under Section 438(1 ) are 
those recommended in sub-section (2)(i) and (ii) which requir e 
the applicant to cooperate with the police and to assure t hat 
he shall not tamper with the witnesses during and aft er 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 
out a case of a likely discovery under Section 27 o f the 
Evidence Act, the person released on bail shall be l iable to 
be taken in police custody for facilitating the dis covery. 
Besides, if and when the occasion arises, it may be pos sible 
for the prosecution to claim the benefit of Section 27 of the 
Evidence Act in regard to a discovery of facts made  in

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pursuance of information supplied by a person relea sed on 
bail by invoking the principle stated by this Court in Stat e of 
U.P. v. Deoman Upadhyaya [AIR 1960 SC 1125 : (1961)  1 
SCR 14, 26 : 1960 Cri LJ 1504] to the effect that w hen 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 appropriately  be 
deemed so have surrendered himself to the police. The broad 
foundation of this rule is stated to be that Section 4 6 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 per son is 
sufficient. For similar reasons, we are unable to agr ee 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.
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 Se ction 
438 the limitations mentioned in Section 437. The High Court 
says that such limitations are implicit in Section 438 but, w ith 
respect, no such implications arise or can be read in to that 
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 43 7, the 
petitioner must make out a “special case” for the exerc ise of 
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 powe r 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 a “special case” for the exer cise 
of the power to grant anticipatory bail is really to say no thing. 
The applicant has undoubtedly to make out a case fo r the 
grant of anticipatory bail. But one cannot go further and say 
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 
[M. R. SHAH, J.]

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that he must make out a “special case”. We do not see why 
the provisions of Section 438 should be suspected a s 
containing something volatile or incendiary, which ne eds to 
be handled with the greatest care and caution imaginable. A 
wise exercise of judicial power inevitably takes ca re of the 
evil consequences which are likely to flow out of i ts 
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 discre tion is 
required to be exercised and of the reasonably fore seeable 
consequences of its use, is the hallmark of a prudent exerc ise 
of judicial discretion. One ought not to make a bugb ear 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 extraordin ary 
character and must be exercised sparingly in exceptional c ases 
only”. It may perhaps be right to describe the power as  of an 
extraordinary character because ordinarily the bail is applie d 
for under Section 437 or Section 439. These section s 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
which bail is generally applied for. But this does no t justify 
the conclusion that the power must be exercised in excepti onal 
cases only, because it is of an extraordinary chara cter. We 
will really be saying once too often that all discretion ha s to 
be exercised with care and circumspection, dependin g on 
circumstances justifying its exercise. It is unnecessary  to travel 
beyond it and subject the wide power conferred by t he 
legislature to a rigorous code of self-imposed limitation s. 
xxx xxx xxx xxx xxx xxx 
25.  ….. We agree, with respect, that the power conferred 
by Section 438 is of an extraordinary character in the s ense 
indicated above, namely, that it is not ordinarily reso rted to 
like the power conferred by Sections 437 and 439. We also 
agree that the power to grant anticipatory bail sho uld be 
exercised with due care and circumspection but beyond that , 
it is not possible to agree with the observations m ade in

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Balchand Jain [(1976) 4 SCC 572 : 1976 SCC (Cri) 68 9 : 
(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 
Section 438 by a wise and careful use of their disc retion 
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 w ith 
principles governing the grant of bail which are recog nised 
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, al most 
chronic, to take a statute as one finds it on the ground that, 
after all, “the legislature in its wisdom” has thought it f it to 
use a particular 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 w isdom, 
especially when the discretion is entrusted to thei r care by 
the legislature in its wisdom. If they err, they are liable  to be 
corrected. 
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 “reaso n to 
believe” that he may be arrested for a non-bailable offence.
The use of the expression “reason to believe” shows that  the 
belief that the applicant may be so arrested must be founde d 
on reasonable grounds. Mere ‘fear’ is not ‘belief”, for which 
reason it is not enough for the applicant to show that he ha s 
some sort of a vague apprehension that some one is going to 
make an accusation against him, in pursuance of whic h 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 c ourt 
objectively, because it is then alone that the cour t can 
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 
[M. R. SHAH, J.]

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determine whether the applicant has reason to believ e that 
he may be so arrested. Section 438(1), therefore, ca nnot be 
invoked on the basis of vague and general allegations,  as if 
to arm oneself in perpetuity against a possible arr est. 
Otherwise, the number of applications for anticipat ory bail 
will be as large as, at any rate, the adult populace. Anticipatory 
bail is a device to secure the individuals liberty; it is neither a 
passport to the commission of crimes nor a shield a gainst 
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 h as 
been made out for granting such relief. It cannot l eave the 
question for the decision of the Magistrate concerned un der 
Section 437 of the Code, as and when an occasion ar ises. 
Such a course will defeat the very object of Section 43 8. 
37.  Thirdly, the filing of a first information report is n ot 
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. 
38.  Fourthly, anticipatory bail can be granted even after 
an FIR is filed, so long as the applicant has not been arr ested. 
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 contradiction in terms, insofar as the offence or  offences 
for which he is arrested, are concerned. After arre st, the 
accused must seek his remedy under Section 437 or Secti on 
439 of the Code, if he wants to be released on bail in respe ct 
of the offence or offences for which he is arrested.
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. Th is flows 
from the very language of the section which, as dis cussed 
above, requires the applicant to show that he has “reason to

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believe” that he may be arrested. A belief can be said to b e 
founded on reasonable grounds only if there is some thing 
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 rele ased 
on bail “whenever arrested for whichever offence 
whatsoever”. That is what is meant by a ‘blanket or der’ of 
anticipatory bail, an order which serves as a blanket to cover
or protect any and every kind of allegedly unlawful activ ity, 
in fact any eventuality, likely 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 ap plicant 
founded on reasonable grounds that he may be arrested for
a non-bailable offence. It is unrealistic to expect the appl icant 
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 disc losed by 
the applicant in order to enable the court to judge  of the 
reasonableness of his belief, the existence of whic h is the 
sine qua non of the exercise of power conferred by the sect ion. 
41.  Apart from the fact that the very language of the 
statute compels this construction, there is an impo rtant 
principle involved in the insistence that facts, on the basi s of 
which a direction under Section 438(1) is sought, m ust be 
clear and specific, not vague and general. It is onl y by the 
observance of that principle that a possible conflict b etween 
the right of an individual to his liberty and the ri ght of the 
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 du ty of the 
police in the matter of investigation because, rega rdless of 
what kind of offence is alleged to have been commit ted 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 eve n 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 c ould not 
possibly be predicated when the order was passed. Therefore,
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 
[M. R. SHAH, J.]

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the court which grants anticipatory bail must take care to 
specify the offence or offences in respect of which alo ne the 
order will be effective. The power should not be exercis ed in 
a vacuum. 
42.  There was some discussion before us on certain 
minor modalities regarding the passing of bail orders u nder 
Section 438(1). Can an order of bail be passed unde r 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 b ail 
should be re-examined in the light of the respective contentio ns 
of the parties. The ad interim order too must conform to t he 
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 the re are 
reasons for doing so, limit the operation of the or der 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 cas es 
be directed to obtain an order of bail under Section 437 or 
439 of the Code within a reasonably short period af ter the 
filing of the FIR as aforesaid. But this need not be fo llowed 
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 Hig h 
Courts, has granted anticipatory bail to many a per son by 
imposing conditions set out in Section 438(2) (i), (ii) and (iii). 
The court has, in addition, directed in most of tho se 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 ma de. In 
certain exceptional cases, the court has, in view of the mater ial 
placed before it, directed that the order of anticipa tory 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 satisfactor ily, 
causing the least inconvenience to the individuals concerned

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and least interference with the investigational righ ts of the 
police. The court has attempted through those orders to strik e 
a balance between the individual’ s right to personal freedom 
and the investigational rights of the police. The a ppellants 
who were refused anticipatory bail by various court s have 
long since been released by this Court under Section 43 8(1) 
of the Code.” 
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 decisi on of 
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 
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 
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; 
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; 
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; 
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 
[M. R. SHAH, J.]

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48 SUPREME COURT REPORTS [2020] 2 S.C.R. 
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 disp osal of 
the case; 
10. the applicant shall surrender his passport, if any, befo re the 
Investigating Officer within a week and, if he does not posse ss any 
passport, he shall file an affidavit to that effect before the Investigating 
Officer; 
11. the applicant shall regularly remain present during the tr ial, 
and co-operate the Honourable Court to complete the trial for the above 
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 
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 
words in an appropriate case and looking to the facts and circumstances 
of the case and the stage at which the pre-arrest bail app lication 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 
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 tha t 
the order of “anticipatory bail” has to be necessarily limit in time frame. 
In many cases subsequently the decision in the case o f 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

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Satlingappa Mhetre (supra) and Salauddin Abdulsamad  Shaikh 
(supra) . At this stage, it is required to be noted that in the cas e 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 
Bench decision which is binding unless it is upset by a larger Bench than 
the Constitution Bench. Therefore, considering the deci sion 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 
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 
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 ope ration of the 
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 di rected 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 
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 t he 
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 war rant, more 
particularly the stage at which the “anticipatory 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 sh eet is filed. 
However, as observed hereinabove, the normal rule should be not to 
limit the order in relation to a period of time. 
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 
[M. R. SHAH, J.]

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50 SUPREME COURT REPORTS [2020] 2 S.C.R. 
S. RA VINDRA BHAT, J. 
1. I have gone through the reasoning and conclusions of Justice 
M.R.Shah. I am in agreement with his judgment. Howe ver, 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 
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 
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. 
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 Punjab 1
considered the available views on the provision for anticipatory bail (a 
concept not in existence till the enactment of the Crimin al Procedure 
Code, 1973- hereafter “Cr. PC” or “the Code”). Section 438 e nables 
two classes of courts- a Court of Sessions and High Court, t o issue 
directions not to arrest a person, who apprehends a rrest. Sibbia 
comprehensively dealt with the history of the provision, the fel t need 
which resulted in its enactment, the observations and comments of the 
41 st  Report of the Law Commission, which had suggested introduction 
of such a provision, and the efficacy of prevailing practi ces. 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. A t the same 
time, the larger bench (of five judges, which decided Sibbia ) ruled that 
in given individual cases, courts could impose conditions which w ere 
appropriate, having regard to the circumstances. 
4. This reference is necessitated, because in the present  case, a 
bench of three judges, on 15 th  May 2018, noticed conflicting views 
11980 (2) SCC 565

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regarding interpretation of the provision- Section 438. The court noticed, 
prima facie, that one line of judgments ( Salauddin Abdulsamad Shaikh 
v. State of Maharashtra 2; K.L. Verma v. State & Anr 3; Sunita Devi v. 
State of Bihar & Anr 4; Adri Dharan Das v. State of West Bengal 5;
Nirmal Jeet Kaur v. State of M.P . & Anr 6; HDFC Bank Limited v. 
J.J. Mannan 7; Satpal Singh v. the State of Punjab 8 and  Naresh Kumar 
Yadav v Ravindra Kumar 9 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 
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- 
even when charges were framed in a given criminal case, leadi ng 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 Commissio n, on whose 
recommendations the provision was introduced. Sibbia traced the history 
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 prov ision 
corresponding to the present Section 438. Under the old Code, 
there was a sharp difference of opinion amongst the vari ous 
High Courts on the question as to whether courts ha d the 
inherent power to pass an order of bail, in anticip ation of 
2 (1996 (1) SCC 667) 
3 1998 (9) SCC 348 
4 2005 (1) SCC 608 
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 
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 
[S. RA VINDRA BHAT, J.]

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52 SUPREME COURT REPORTS [2020] 2 S.C.R. 
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 wer e made 
in different quarters in order to make the Code more effectiv e 
and comprehensive. The Law Commission of India, in its 41st 
Report dated September 24, 1969 pointed put the nece ssity 
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 perso n on 
bail prior to his arrest (commonly known as “antici patory 
bail”) was carefully considered by us. Though there  is a 
conflict of judicial opinion about the power of a C ourt to- 
grant anticipatory bail, the majority view is that th ere is no 
such power under the existing provisions of the Cod e. The 
necessity for granting anticipatory bail arises mainly be cause 
sometimes influential persons try to’ implicate their riv als in 
false cases for the purpose of disgracing them or f or other 
purposes by getting them detained in jail for some days. In 
recent times, with the accentuation of political ri valry, this 
tendency is showing signs of steady increase. Apart from  false 
cases, where there are reasonable grounds for holding that a 
person accused of an offence is not likely to absco nd, or 
otherwise misuse his liberty while on bail, there s eems 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 
further of the view that this special power should be confer red 
only on the High Court and the Court of Session, and t hat 
the order should take effect at the time of arrest or the reafter. 
In order to settle the details of this suggestion, the follow ing 
draft of a, new section is placed for consideration : 
‘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, direc t 
that in the event of his arrest, he shall be released on bail.

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(2) A Magistrate taking cognizance of an offence ag ainst 
that person shall, while taking steps Under Section 204(1), 
either issue summons or a bailable warrant as indicat ed 
in the direction of the Court under Sub-section (1). 
(3) if any person in respect of whom such a directi on is 
made is arrested without warrant by an officer in charge
of a police station on an accusation of having committe d 
that; offence, and is prepared either at the time of  arrest 
or at any time while in the custody of such officer to gi ve 
bail, such person shall be released on bail.” 
We considered carefully the question of laying down  in the 
statute certain conditions under which alone anticipatory bail could 
be granted. But we found that it may not be practic able 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 i t to the 
discretion, of the; court and prefer not to fetter su ch discretion in 
the statutory provision itself. Superior Courts wil l, 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, i n 
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 
be arrested on an accusation of having committed a non- 
bailable offence, he may apply to the High Court or the Cou rt 
of Session for a direction under this section; and th at Court 
may, if it thinks fit, direct that in the event of such arrest, he 
shall be released on bail. 
(2) If such person is thereafter arrested without warra nt by 
an officer in charge of a police station on such accusa tion, 
and is prepared either at the lime of arrest or at any time 
while in the custody of such officer to give bail, he sh all be 
released on bail; and if a Magistrate taking cogniz ance of 
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 
[S. RA VINDRA BHAT, J.]

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such offence decides that a warrant should issue in the f irst 
instance against that person, he shall issue a bailable warrant
in conformity with the direction of the Court under Sub-secti on 
(1).’ 
6. The Law Commission, in paragraph 31 of its 48th Report 
(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 
it is in very exceptional cases that such a power s hould be 
exercised. 
We are further of the view that in order to ensure that
the provision is not put to abuse at the instance o f 
unscrupulous petitioners, the final order should be made onl y 
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 re asons 
to be recorded, and if the court is satisfied that such a 
direction is necessary in the interests of justice. 
It will also be convenient to provide that notice of the interi m 
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 certai n 
modifications and became Section 438 of the CrPC, 1 973 
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 
manner, in respect of offences not yet committed or with r egard 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 pow er to grant 
anticipatory bail” ; and further that where a legitimate case for remand

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to police custody is made 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 U nder 
Section 438 should not be exercised.” The full bench held that Section 
438 cannot be availed in respect of offences punishable wit h death or 
life imprisonment “unless the court at that very stage is satisfied that 
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 t he higher 
rungs of the executive and political power” and that 
“(8) Mere general allegation of mala fides in the petiti on 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. 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 
as follows: 
“…The provisions of Sections 437 and 439 furnished a 
convenient model for the legislature to copy while e nacting 
Section 438. If it has not done so and has departed  from a 
pattern which could easily be adopted with the nece ssary 
modifications, it would be wrong to refuse to give to the 
departure its full effect by assuming that it was not i ntended 
to serve any particular or specific purpose. The de parture, 
in our opinion, was made advisedly and purposefully : 
Advisedly, at least in part, because of the 41st Report o f the 
Law Commission which, while pointing out the necess ity of 
introducing a provision in the Code enabling the High Court 
and the Court of Session to grant anticipatory bail, s aid in 
para 39.9 that it had “considered carefully the ques tion of 
laying down in the statute certain conditions under  which 
alone anticipatory bail could be granted” but had c ome to 
the conclusion that the question of granting such bail should 
be left “to the discretion of the court” and ought n ot 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 co nferred a 
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 
[S. RA VINDRA BHAT, J.]

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wide discretion on the High Court and the Court of Sessi on 
to grant anticipatory bail because it evidently felt, fir stly, that 
it would be difficult to enumerate the conditions under which 
anticipatory bail should or should not be granted a nd 
secondly, because the intention was to allow the higher cou rts 
in the echelon a somewhat free hand in the grant of relief in
the nature of anticipatory bail. That is why, departin g from 
the terms of Sections 437 and 439, Section 438(1) us es the 
language that the High Court or the Court of Session “may, 
if it thinks fit” direct that the applicant be releas ed on bail. 
Sub-section (2) of Section 438 is a further and cle arer 
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 issui ng a 
direction for the grant of anticipatory bail, “may include s uch 
conditions in such directions in the light of the fact s of the 
particular case, as it may think fit”, including the condi tions 
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 undoubted ly be 
resolved by resort to extraneous aids but words, as wide a nd 
explicit as have been used in Section 438, must be given the ir 
full effect, especially when to refuse to do so wil l result in 
undue impairment of the freedom of the individual a nd the 
presumption of innocence. It has to be borne in min d that 
anticipatory bail is sought when there is a mere apprehens ion 
of arrest on the accusation that the applicant has commi tted 
a non- bailable offence. A person who has yet to lo se his 
freedom by being arrested asks for freedom in the e vent of 
arrest. That is the stage at which it is imperative to pr otect his 
freedom, insofar as one may, and to give full play to the 
presumption that he is innocent. In fact, the stage a t which 
anticipatory bail if generally sought brings about its strik ing 
dissimilarity with the situation in which a person who is 
arrested for the commission of a non-bailable offen ce asks 
for bail. In the latter situation, adequate data is available to 
the court, or can be called for by it, in the light o f which it 
can grant or refuse relief and while granting it, modify  it by 
the imposition of all or any of the conditions ment ioned in 
Section 437.

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13.  This is not to say that anticipatory bail, if granted, must 
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 condition s 
in the direction as it may think fit in the light of the  facts of 
the particular case, including the conditions menti oned in 
clauses (i) to (iv) of that sub-section. The controversy there fore 
is not whether the court has the power to impose condition s 
while granting anticipatory bail. It clearly and expressl y has 
that power. The true question is whether by a proce ss of 
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 grantin g 
anticipatory bail, should be cut down by reading in to the 
statute conditions which are not to be found therein, like those
evolved by the High Court or canvassed by the learn ed 
Additional Solicitor General. Our answer, clearly a nd 
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 
conditions as the case may warrant. Similarly, they mu st be 
left free to refuse bail if the circumstances of th e case so 
warrant, on considerations similar to those mention ed in 
Section 437 or which are generally considered to be relevant 
under Section 439 of the Code. 
14 . Generalizations on matters which rest on discretion a nd 
the attempt to discover formulae of universal application wh en 
facts are bound to differ from case to case frustrate the ver y 
purpose of conferring discretion. No two cases are a like on 
facts and therefore, courts have to be allowed a li ttle free 
play in the joints if the conferment of discretionary p ower is 
to be meaningful. There is no risk involved in entr usting a 
wide discretion to the Court of Session and the High Court in 
granting anticipatory bail because, firstly, these a re higher 
courts manned by experienced persons, secondly, their orders 
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 
[S. RA VINDRA BHAT, J.]

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are not final but are open to appellate or revisional scrutin y 
and above all because, discretion has always to be exerc ised 
by courts judicially and not according to whim, capr ice or 
fancy. On the other hand, there is a risk in forecl osing 
categories of cases in which anticipatory bail may be allow ed 
because life throws up unforeseen possibilities and offers  new 
challenges. Judicial discretion has to be free enou gh to be 
able to take these possibilities in its stride and to m eet these 
challenges. While dealing with the necessity for pr eserving 
judicial discretion unhampered by rules of general 
application. 
———— ———————       ——— 
19.  A great deal has been said by the High Court on the fifth 
proposition framed by it, according to which, inter a lia, 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 likel y to be 
received from the offender under Section 27 of the Evid ence 
Act. According to the High Court, it is the right and the du ty 
of the police to investigate into offences brought to their  notice 
and therefore, courts should be careful not to exerci se their 
powers in a manner which is calculated to cause interference 
therewith. It is true that the functions of the judiciary and the 
police are in a sense complementary and not overlap ping. 
And, as observed by the Privy Council in King-Emper or v. 
Khwaja Nazir Ahmed [AIR 1945 PC 18 : (1943-44) 71 I A 
203 : 46 Cri LJ 413] : 
“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 of fence 
with which he is charged, so it is of the utmost importance
that the judiciary should not interfere with the po lice in 
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 b e 
obtained by leaving each to exercise its own function,… ”

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But these remarks, may it be remembered, were made by 
the Privy Council while rejecting the view of the Laho re 
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 
such proceedings puts an end to the proceedings with the
inevitable result that all investigation into the accus ation 
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
altogether different kind. An order of anticipatory bail doe s 
not in any way, directly or indirectly, take away fro m the 
police their right to investigate into charges made or to be
made against the person released on bail. In fact, t wo of 
the usual conditions incorporated in a direction is sued 
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 
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. Besi des, if 
and when the occasion arises, it may be possible for  the 
prosecution to claim the benefit of Section 27 of t he 
Evidence Act in regard to a discovery of facts made  in 
pursuance of information supplied by a person relea sed 
on 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 informa tion 
leading to the discovery of a fact, having a bearing on the 
charge which may be made against him, he may 
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 
[S. RA VINDRA BHAT, J.]

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appropriately be deemed so have surrendered himself  to 
the police. The broad foundation of this rule is stat ed 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 reason s, 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. 
 —————— ———— ———- 
21.  The High Court says in its fourth proposition that i n 
addition to the limitations mentioned in Section 437, t he 
petitioner must make out a “special case” for the exercis e 
of the power to grant anticipatory bail. This, virt ually, 
reduces the salutary power conferred by Section 438 to a 
dead letter. In its anxiety, otherwise just, to show that t he 
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 powe r 
utterly unguided. To say that the applicant must make out 
a “special case” for the exercise of the power to g rant 
anticipatory bail is really to say nothing. The app licant 
has undoubtedly to make out a case for the grant of
anticipatory bail. But one cannot go further and say tha t 
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 need s 
to be handled with the greatest care and caution 
imaginable. A wise exercise of judicial power inevi tably 
takes care of the evil consequences which are likel y to 
flow out of its intemperate use. Every kind of judi cial 
discretion, whatever may be the nature of the matte r 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 discreti on.

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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 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 bai l to a 
person who is in the custody of the police and that is the
ordinary situation in which bail is generally applied f or. 
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 i ts 
exercise. It is unnecessary to travel beyond it and subje ct 
the wide power conferred by the legislature to a rigorous 
code of self-imposed limitations. 
———— ————— ————- 
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 sec tion. 
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 anticipator y bail, 
convicted of the offence in respect of which he seeks bail. 
An over-generous infusion of constraints and condit ions 
which are not to be found in Section 438 can make i ts 
provisions constitutionally vulnerable since the ri ght to 
personal freedom cannot be made to depend on compliance 
with unreasonable restrictions. The beneficent prov ision 
contained in Section 438 must be saved, not jettiso ned. 
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 
[S. RA VINDRA BHAT, J.]

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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 o f the 
Constitution, the procedure established by law for 
depriving a person of his liberty must be fair, jus t and 
reasonable. Section 438, in the form in which it is conceived 
by the legislature, is open to no exception on the gro und 
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. 
———— ————— ————- 
33.  We would, therefore, prefer to leave the High Cour t 
and the Court of Session to exercise their jurisdiction under 
Section 438 by a wise and careful use of their discret ion 
which, by their long training and experience, they are 
ideally suited to do. The ends of justice will be better s erved 
by trusting these courts to act objectively and in 
consonance with principles governing the grant of b ail 
which are recognised over the years, than by divesting th em 
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 legisl ature 
in its wisdom” has thought it fit to use a particul ar 
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 
be corrected. 
34.  This should be the end of the matter, but it is necessary 
to clarify a few points which have given rise to ce rtain 
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” 
that he may be arrested for a non-bailable offence. The

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use of the expression “reason to believe” shows that the 
belief that the applicant may be so arrested must b e 
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 som e 
one is going to 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 capabl e of 
being examined by the court objectively, because it is t hen 
alone that the court can determine whether the applica nt 
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 perpetuit y 
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 
to secure the individuals liberty; it is neither a passp ort 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
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 43 8. 
37 . Thirdly, the filing of a first information report is not a 
condition precedent to the exercise of the power un der 
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 afte r 
an FIR is filed, so long as the applicant has not b een 
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 
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 
[S. RA VINDRA BHAT, J.]

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64 SUPREME COURT REPORTS [2020] 2 S.C.R. 
contradiction in terms, insofar as the offence or offe nces 
for which he is arrested, are concerned. After arres t, 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.
40 . We have said that there is one proposition formulated 
by the High Court with which we are inclined to agr ee. 
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 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
not issue under Section 438(1) to the effect that t he 
applicant shall be released on bail “whenever arrested for 
whichever offence whatsoever”. That is what is meant b y 
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 ca n 
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 u p 
his application with the meticulousness of a pleading in a 
civil case and such is not requirement of the section. B ut 
specific events and facts must be disclosed by the applica nt 
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 statut e 
compels this construction, there is an important princi ple 
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

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the right of an individual to his liberty and the right of the 
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 becaus e, 
regardless of what kind of offence is alleged to have been
committed by the applicant and when, an order of ba il 
which comprehends allegedly unlawful activity of an y 
description whatsoever, will prevent the police fro m 
arresting the applicant even if he commits, say, a mur der 
in the presence of the public. Such an order can th en 
become a charter of lawlessness and a weapon to sti fle 
prompt investigation into offences which could not possibly 
be predicated when the order was passed. Therefore, th e 
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 b e 
exercised in a vacuum. 
42.  There was some discussion before us on certain minor 
modalities regarding the passing of bail orders und er 
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 ba il 
should be re-examined in the light of the respectiv e 
contentions of the parties. The ad interim order too must
conform to the requirements of the section and suit able 
conditions should be imposed on the applicant even at that 
stage. Should the operation of an order passed unde r 
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 or der. 
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 F IR 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. 
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 
[S. RA VINDRA BHAT, J.]

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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 th ose 
cases that (a) the applicant should surrender himse lf 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 certain exceptional cases, the court has, i n 
view of the material placed before it, directed that the orde r 
of anticipatory bail will remain in operation only for a 
week or so until after the filing of the FIR in res pect 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 
attempted through those orders to strike a balance between
the individual’s right to personal freedom and the 
investigational rights of the police. The appellant s who 
were refused anticipatory bail by various courts have long 
since been released by this Court under Section 438(1) of 
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 
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 
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 gra nted at a 
stage when the investigation is incomplete and, therefor e, it 
is not informed about the nature of evidence agains t the 
alleged offender. It is therefore, necessary that s uch

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anticipatory bail orders should be of a limited duration only 
and ordinarily on the expiry of that duration or ex tended 
duration the court granting anticipatory bail should le ave it 
to the regular court to deal with the matter on an appreciati on 
of evidence placed before it after the investigation ha s made 
progress or the charge-sheet is submitted”.” 
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 a pplication 
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 
granted in anticipation of arrest in non- bailable cas es, but 
that does not mean that the regular court, which is to try the 
offender, is sought to be bypassed...By this, what t he 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 du ration 
as the regular court cannot be bypassed.  The limited duration 
must be determined having regard to the facts of the cas e 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 
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 cou rt the 
anticipatory bail ends even if the court is yet to de cide the 
question of bail on merits.  The decision in Salauddin case 
[(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 
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 
[S. RA VINDRA BHAT, J.]

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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 
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 
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 st rength 
of an order granting anticipatory bail, an accused a gainst whom 
charge has been framed, cannot avoid appearing before the trial 
court..”  The court observed that: 
“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 c annot 
also be invoked to exempt the accused from surrenderin g to 
the court after the investigation is complete and i f 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 a nd 
charge is framed against him, he may still not appear before 
the court at all even during the trial. 
20. Section 438 CrPC contemplates arrest at the stage o f 
investigation and provides a mechanism for an accused to be 
released on bail should he be arrested during the pe riod of 
investigation. Once the investigation makes out a case against
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 grant ing 
anticipatory bail, an accused against whom charge has been 
framed, cannot avoid appearing before the trial court. ” 
13 2010 (1) SCC 679

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11. In the light of these decisions, which narrowed the scope and 
jurisdiction under Section 438, the judgment in Mhetre noticed that Sibbia 
was by a Bench of five judges, which indicated that impos ition 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 
judgment of the Constitution Bench in Sibbia’s case (s upra). 
According to the report of the National Police Commis sion, 
the power of arrest is grossly abused and clearly violate s the 
personal liberty of the people, as enshrined under Art icle 21 
of the Constitution, then the courts need to take serious not ice 
of it. When conviction rate is admittedly less than 10%, the n 
the police should be slow in arresting the accused. The courts 
considering the bail application should try to mainta in fine 
balance between the societal interest vis-à-vis personal  liberty 
while adhering to the fundamental principle of crim inal 
jurisprudence that the accused that the accused is pre sumed 
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 th e 
complainant has filed false or frivolous complaint on earlie r 
occasion. The court should also examine the fact wh ether 
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, th en 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 
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 offi cer 
must record the valid reasons which have led to the arrest of 
the accused in the case diary. In exceptional cases the r easons 
could be recorded immediately after the arrest, so that whi le 
dealing with the bail application, the remarks and 
observations of the arresting officer can also be p roperly 
evaluated by the court. 
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 
[S. RA VINDRA BHAT, J.]

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96. It is imperative for the courts to carefully and wi th 
meticulous precision evaluate the facts of the case . The 
discretion must be exercised on the basis of the av ailable 
material and the facts of the particular case. In cases where 
the court is of the considered view that the accused has jo ined 
investigation and he is fully cooperating with the investigati ng 
agency and is not likely to abscond, in that event, c ustodial 
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 
entire community. Most people do not make any distinc tion 
between arrest at a pre-conviction stage or post-con viction 
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 whet her 
the powers under section 438 Cr.P.C. are unguided o r 
uncanalised or are subject to all the limitations o f section 
437 Cr.P .C.? The Constitution Bench in Sibbia’s case (supra) 
has clearly observed that there is no justification for readin g 
into section 438 Cr.P.C. and the limitations mentio ned in 
section 437 Cr.P.C. The Court further observed that  the 
plentitude of the section must be given its full pl ay. The 
Constitution Bench has also observed that the High Court is 
not right in observing that the accused must make o ut a 
“special case” for the exercise of the power to gra nt 
anticipatory bail. This virtually, reduces the salut ary power 
conferred by section 438 Cr.P .C. to a dead letter. The Court 
observed that “We do not see why the provisions of Se ction 
438 Cr.P.C. should be suspected as containing somet hing 
volatile or incendiary, which needs to be handled w ith the 
greatest care and caution imaginable.” 
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 inte mperate 
use. Every kind of judicial discretion, whatever ma y be the 
nature of the matter in regard to which it is require d to be 
exercised, has to be used with due care and caution. In fact,

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an awareness of the context in which the discretion is requi red 
to be exercised and of the reasonably foreseeable 
consequences of its use, is the hallmark of a prudent exerc ise 
of judicial discretion. One ought not to make a bugb ear of 
the power to grant anticipatory bail. 
100.  The Constitution Bench in the same judgment also 
observed that a person seeking anticipatory bail is still a f ree 
man entitled to the presumption of innocence. He is willin g to 
submit to restraints and conditions on his freedom,  by the 
acceptance of conditions which the court may deem f it to 
impose, in consideration of the assurance that if arrest ed, he 
shall enlarged on bail. 
101.  The proper course of action ought to be that after
evaluating the averments and accusation available o n 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 
either reject the bail application or confirm the in itial order 
of granting bail. The court would certainly be enti tled to 
impose conditions for the grant of bail. The public prosecut or 
or complainant would be at liberty to move the same court 
for cancellation or modifying the conditions of bail any time
if liberty granted by the court is misused. The bail grant ed by 
the court should ordinarily be continued till the tria l of the 
case. 
102.  The order granting anticipatory bail for a limited
duration and thereafter directing the accused to su rrender 
and apply before a regular bail is contrary to the legislati ve 
intention and the judgment of the Constitution Benc h 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 discr etion of 
grant or cancellation of bail can be exercised eithe r at the 
instance of the accused, the public prosecutor or t he 
complainant on finding new material or circumstances at any 
point of time. 
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 
[S. RA VINDRA BHAT, J.]

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104.  The intention of the legislature is quite clear tha t the 
power of grant or refusal of bail is entirely discretionar y. The 
Constitution Bench in Sibbia’ s case (supra) has clearly state d 
that grant and refusal is discretionary and it should de pend 
on the facts and circumstances of each case. The Constituti on 
Bench in the said case has aptly observed that we must res pect 
the wisdom of the Legislature entrusting this power  to the 
superior courts namely, the High Court and the Cour t 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 
Section 438 by a wise and careful use of their discret ion 
which, by their long training and experience, they are 
ideally suited to do. The ends of justice will be better s erved 
by trusting these courts to act objectively and in 
consonance with principles governing the grant of b ail 
which are recognized over the years, than by divesting th em 
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 legislatu re 
in, its wisdom” has thought it fit to use a particu lar 
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 
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 cance l 
the bail according to the provisions of the General Cl auses 
Act but ordinarily after hearing the public prosecut or 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) 
is contrary to legislative intent and the spirit of  the very

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provisions of the anticipatory bail itself and has re sulted in 
an artificial and unreasonable restriction on the s cope 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 accu sed 
granted under Article 21 of the constitution. The a dded 
observation is nowhere found in the enactment and bringing 
in restrictions which are not found in the enactment is ag ain 
an unreasonable restriction. It would not stand the  test of 
fairness and reasonableness which is implicit in Article 21 o f 
the Constitution after the decision in Maneka Gandhi’s case 
(supra) in which the court observed that in order to meet  the 
challenge of Article 21 of the Constitution the pro cedure 
established by law for depriving a person of his liberty m ust 
be fair, just and reasonable. 
108.  Section 438 Cr.P.C. does not mention anything abou t 
the duration to which a direction for release on bail  in the 
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 o f 
anticipatory bail is executed by the accused and he is rel eased 
on bail, the concerned court would be fully justifi ed in 
imposing conditions including direction of joining 
investigation. 
109.  The court does not use the expression ‘anticipatory bail’ 
but it provides for issuance of direction for the r elease on 
bail by the High Court or the Court of Sessions in the even t 
of arrest. According to the aforesaid judgment of Salauddin’ s 
case, the accused has to surrender before the trial court a nd 
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 
High Court, once the accused is released on bail by the trial 
court, then it would be unreasonable to compel the accu sed 
to surrender before the trial court and again apply for regu lar 
bail. 
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 
[S. RA VINDRA BHAT, J.]

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111.  The court must bear in mind that at times the applicant 
would approach the court for grant of anticipatory bai l on 
mere apprehension of being arrested on accusation of having 
committed a non-bailable offence. In fact, the invest igating 
or concerned agency may not otherwise arrest that applicant 
who has applied for anticipatory bail but just beca use he 
makes an application before the court and gets the relief fr om 
the court for a limited period and thereafter he has to surrender 
before the trial court and only thereafter his bail applicat ion 
can be considered and life of anticipatory bail comes to an 
end. This may lead to disastrous and unfortunate 
consequences. The applicant who may not have otherw ise 
lost his liberty loses it because he chose to file appli cation 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 offi cer 
to do so. The existence of power to arrest is one thing and th e 
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 contr ary 
to the legislative intention and law which has been dec lared 
by a Constitution Bench of this court in Sibbia’ s case (supr a). 
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 app ly for 
regular bail . This is contrary to the basic intention and spiri t 
of section 438 Cr.P .C. It is also contrary to Article 21 of the 
Constitution. The test of fairness and reasonableness is implicit 
under Article 21 of the Constitution of India. Dire cting the 
accused to surrender to custody after the limited p eriod 
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 th e courts 
should not impose restrictions on the ambit and sco pe of 
section 438 Cr.P .C. which are not envisaged by the Legislature. 
The court cannot rewrite the provision of the statu te in the 
garb of interpreting it. 
114.  It is unreasonable to lay down strict, inflexible and rigid 
rules for exercise of such discretion by limiting the per iod of

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which an order under this section could be granted. We deem 
it appropriate to reproduce some observations of the judgm ent 
of the Constitution Bench of this court in the Sibb ia’s case 
(supra)…” 
********************* ***************** 
121.  No inflexible guidelines or straitjacket formula c an be 
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 bec ause all 
circumstances and situations of future cannot be cl early 
visualized for the grant or refusal of anticipatory  bail . In 
consonance with the legislative intention the grant or refusal 
of anticipatory bail should necessarily depend on fac ts and 
circumstances of each case. As aptly observed in th e 
Constitution Bench decision in Sibbia’s case (supra) th at the 
High Court or the Court of Sessions to exercise the ir 
jurisdiction under section 438 Cr.P .C. by a wise and car eful 
use of their discretion which by their long trainin g and 
experience they are ideally suited to do. In any event, this  is 
the legislative mandate which we are bound to respec t and 
honour. 
122.  The following factors and parameters can be taken into 
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 arres t 
is made; 
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 offenc e; 
iii. The possibility of the applicant to flee from just ice; 
iv. The possibility of the accused’ s likelihood to repeat s imilar 
or the other offences. 
v. Where the accusations have been made only with the object 
of injuring or humiliating the applicant by arrestin g him or 
her. 
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 
[S. RA VINDRA BHAT, J.]

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76 SUPREME COURT REPORTS [2020] 2 S.C.R. 
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 cl early 
comprehend the exact role of the accused in the cas e. The 
cases in which accused is implicated with the help of secti ons 
34 and 149 of the Indian Penal Code, the court shou ld 
consider with even greater care and caution because  over 
implication in the cases is a matter of common know ledge 
and concern; 
viii. While considering the prayer for grant of anti cipatory 
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 hara ssment, 
humiliation and unjustified detention of the accused; 
ix. The court to consider reasonable apprehension o f 
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 ha ve to be 
considered in the matter of grant of bail and in the even t of 
there being some doubt as to the genuineness of the
prosecution, in the normal course of events, the ac cused is 
entitled to an order of bail. 
123.  The arrest should be the last option and it should  be 
restricted to those exceptional cases where arresti ng the 
accused is imperative in the facts and circumstances o f that 
case. 
124.  The court must carefully examine the entire availa ble 
record and particularly the allegations which have been 
directly attributed to the accused and these allegat ions are 
corroborated by other material and circumstances on record. 
125.  These are some of the factors which should be take n 
into consideration while deciding the anticipatory bail 
applications. These factors are by no means exhaust ive but 
they are only illustrative in nature because it is d ifficult to

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clearly visualize all situations and circumstances i n which a 
person may pray for anticipatory bail. If a wise discreti on is 
exercised by the concerned judge, after consideration of ent ire 
material on record then most of the grievances in favour  of 
grant of or refusal of bail will be taken care of. The legis lature 
in its wisdom has entrusted the power to exercise t his 
jurisdiction only to the judges of the superior cou rts. In 
consonance with the legislative intention we should  accept 
the fact that the discretion would be properly exerc ised. In 
any event, the option of approaching the superior c ourt 
against the court of Sessions or the High Court is always 
available.” 
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 
13. For completeness, it is essential to set out th e relevant 
provisions: to wit, Sections 437, 438 and 439 of the Code of Criminal 
Procedure, 1974 (hereafter variously “Cr.PC” and “the Code”). T hey 
are reproduced in the footnote below. 14 
14 "437. When bail may be taken in case of non- bailable off ence. 
(1) When any person accused of, or suspected of, th e 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 
Court or Court of Session, he may be released on ba il, but- 
(i) such person shall not be so released if there appear reasonable grounds for 
believing that he has been guilty of an offence pun ishable 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, 
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 l ess than seven years. 
Provided that the Court may direct that a person re ferred 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. 
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 
[S. RA VINDRA BHAT, J.]

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Provided further that the Court may also direct tha t 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 pe rson may be required for 
being identified by witnesses during investigation shall not be sufficient ground 
for refusing to grant bail if he is otherwise entit led to be released on bail and 
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 li fe or imprisonment for 
seven years or more be released on bail by the Cour t under this sub-section 
without giving an opportunity of hearing to the public prosecutor. 
(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 offe nce, but that there are 
sufficient grounds for further inquiry into hisguil t 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. 
(3) When a person accused or suspected of the commi ssion of an offence 
punishable with imprisonment which may extend to se ven 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- 
(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 whi ch he is suspected, and 
(c)  that such 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 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 
so doing. 
(5) Any Court which has released a person on bail u nder 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 tr ial of a person accused of any 
non- bailable offence is not concluded within a period of sixty days from the first 
date fixed for taking evidence in the case, such person shall, if he is in custody

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during the whole of the said period, be released on bail to the satisfaction of the 
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 
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 m ay be arrested on an 
accusation of having committed a non- bailable offe nce, 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 eve nt of such arrest, he shall be 
released on bail.* 
* By amendment, made in 2005, Subsection (1) has been  substituted as 
follows (the amended portion is brackets; the amend ment has not yet 
been brought into force ): 
—————————————————————————————————— 
[“(1) Where any person has reason to believe that h e may be arrested on 
accusation of having committed a non- bailable offe nce, 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 
(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 reje ct the application forthwith 
or issue an interim order for the grant of anticipa tory 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-sec tion 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 app licant 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 
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 
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 
[S. RA VINDRA BHAT, J.]

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(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 Publi c Prosecutor, the Court 
considers such presence necessary in the interest of justice.] 
—————————————————————————————————— 
The unamended portion- Section 438 (2) and (3), and the newly introduced 
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; 
(ii) a condition that the person shall not, directl y or indirectly, make any 
inducement, threat or promise to any person acquain ted with the facts of the 
case so as to dissuade him from disclosing such fac ts to the Court or to any 
police officer; 
(iii) a condition that the person shall not leave I ndia without the previous 
permission of the Court; 
(iv) such other condition as may be imposed under s ub- 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 prep ared either at the time 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 such offence decides 
that a warrant should issue in the first instance a gainst 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 
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 Sessi on 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 
if the offence is of the nature specified in subsec tion (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 
to a person who is accused of an offence which is triable exclusively by the Court

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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. 
Provided further that the High Court or the Court o f Session shall before 
granting bail to a person who is an accused of an o ffence 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. 
(IA) The presence of the informant or any person au thorised 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 A B 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.” 
Contentions of parties 
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 
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. 
15. It is submitted, therefore that the substantive consti tutional 
right of personal liberty can be denied or curtailed only in a ccordance 
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 
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 
his own bond such constructive control could still be exercised through 
the conditions of the bond secured from him. “Bail” literally means surety. 
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 
[S. RA VINDRA BHAT, J.]

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16. The literal meaning of the word “bail” is surety. Couns el 
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 c ustody of his 
sureties who are bound to produce him to appear at his tria l. 15 Upon 
grant of bail, the accused is mandated to furnish bond and bail-bond for 
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 a t any stage: 
pre-trial, during trial and even after completion of trial. Counsel submitted 
that apart from provisions in Chapter XXXII of Cr.PC (S ections 436- 
450), there are other provisions relevant on the issue, i.e. Sec tion 360 
(Order to release on probation of good conduct or after admoniti on, a 
post-conviction stage  and Section389 (Suspension of sentence pending 
the appeal and release of appellant on bail - postconvicti on and during 
pendency of Appeal). Section 438 manifests the principle of liberty. 
17. Counsel highlighted that anticipatory bail is panace a for 
apprehension of arrest in false case. Anticipatory bail pr otects 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 
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 
offences. Yet another important facet of our criminal juris prudence 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). 
15 Halsbury’s Laws of England (4 th Edn., V ol. 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 
and he will then be imprisoned.”

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18. Counsel submitted that the provision in Section 438 read with 
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 
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 manne r 
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, i ncluding in 
some of the orders/judgments of this Court, wherein denial of anticipatory 
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 C ode. The 
arrest of an accused, is required, if at all, broadly for unearthing the truth 
of the case during investigation (a choice of the invest igating 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 cus tody 
and remains in that state of physical confinement, ideally i s to be the 
domain of the prosecuting agency and /or of trying Court. Th ere 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 
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 
accused, is sufficient indicative factor of the proposition that a rejection 
of anticipatory will generate no automatic warrant for an a ccused to 
surrender and seek regular bail. If subsequent and mater ial 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 
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 
[S. RA VINDRA BHAT, J.]

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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. 
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 situat ion requires 
the applicant (who is beneficiary of an order under Section 438 CrPC) 
rather than limiting the order of anticipatory bail. He a lso pointed out 
observations in Gurcharan Singh (supra) to say that statutory bail (i.e. 
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 
Code 17 ) 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 
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 m ade clear that a Court of Session 
cannot cancel a bail which has already been granted  by the High Court unless new 
circumstances arise during the progress of the tria l 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 no t earlier known to the State and 
necessarily, therefore, to that Court. The State ma y as well approach the High Court 
being the superior Court under Section 439 (2)  to commit the accused to custody. When, 
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 Hig h Court.” 
17 Section 167 (2) CrPC reads as follows: 
“(2) The Magistrate to whom an accused person is fo rwarded under this section may, 
whether he has or has no jurisdiction to try the ca se, from time to time, authorise the 
detention of the accused in such custody as such Ma gistrate 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 
forwarded to a Magistrate having such jurisdiction:  Provided that-

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section for a total period exceeding 60 days on the expiry o f 
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 
State of Maharastra 18  is an authority for the proposition that there can 
be no cancellation of the bail granted, or deemed to be grante d, 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 
released on bail by the thrust of the proviso to Se ction 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 si tuation 
his bail can be cancelled only if considerations germ ane to 
cancellation of bail under Section 437 (5) or for that matt er 
Section 439 (2) exist. That is because the release of a pers on 
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 
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 
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 
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 p repared 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 
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 
[S. RA VINDRA BHAT, J.]

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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 convic tion or 
affirmative direction is passed to arrest the individual s, is made under 
Section 439 (2). Mr. Vishwanathan highlighted that Section 438 has an 
intrinsic link with Article 21 in as much as it seeks to b alance 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 ot her accused; 
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 highli ghted in 
Sibbia. Mr. Vishwanathan, after outlining the background of Section 
438 - in the context of the observations of the 41 st  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 
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 ma ximum 
punishment can extend to imprisonment to above seven years or death 
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 r equired to be 
exercised in every case was recognized in the case of Joginder Kumar 
19 The Report remarked – after considering 3 
rd 
Report of the National Police Commission 
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 
of the prison department”.

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v. State of U.P 20 ; Lalitha Kumari v. State of U.P 21 ; and  Arnesh Kumar 
v. State of Bihar .22  This Court in M.C. Abraham v. State of 
Maharastra 23 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 circums cribed by 
Section 438. As recognized by the Law Commission, there ar e cases 
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 pr ovided 
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 humiliat ion of 
arrest. 
25. Counsel submitted to strike a further balance between the 
power of arrest and the rights of the accused, the power under Sec tion 
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 supervi sory level 
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 wa s 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 
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 
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 insta nce, such 
magistrate is only empowered to issue only a bailable warrant 
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 
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 
[S. RA VINDRA BHAT, J.]

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26. This curtailment of power of the magistrate clearly sho ws 
Parliamentary intent that one who is granted relief under Sec tion 438 
ought not to be arrested at the stage of cognizance because o f the said 
pre-arrest bail order. Considering this express prov ision, no other 
interpretation can be given to the said section. The second question 
referred here squarely covered by this sub-section. This orde r passed 
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 f rom the 
provision that a bail granted under Section 438 is further gove rned by 
Section 439(2) which gives the power to the Court of Session or the 
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 pros ecution can 
seek the arrest of the accused. The only difference is that the po wer of 
arrest in these cases is exercised only after judicial scrutiny. This provision 
envisions that the Code presupposes that orders once pa ssed 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 benef it of 
orders under these sections can be taken into custody only when a specific 
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 a rrest 
under Section 439(2). However, the scope of Section 439(2) is not limited 
to only cancellation of bail. Counsel stated that this proposition of law 
was considered by this court in Pradeep Ram v. State of Jharkhand 24 .
In this case, this court while considering an earlier judgment in Mithabhai 
Pashabhai Patel v. State of Gujarat 25 , 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 
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 i n 
24 2019 SCC Online (SC) 825 
25 2009 (6) SCC 332,

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this case that if a graver offence is added to the FIR or to the case after 
the person has been granted bail, a direction under Section 43 9(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 th e need 
for court’s supervision after the bail had been granted. 
28. Mr. Hiren Raval, learned amicus curiae, highlighted that while 
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. 
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 discretio n should be 
exercised with caution and circumspection. Counsel submitted that there 
could be three situations when anticipatory bail applications  are to be 
considered: one, when the application is filed in anticipation of a rrest, 
before filing FIR; two, after filing FIR, but before the filing of the charge 
sheet; and three, after filing charge sheet. It was submi tted that as a 
matter of prudence and for good reasons, articulated in Salauddin, K.L. 
V erma, 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 
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 deeme d 
appropriate. 
30. Mr. Raval submitted that in every contingency, the court is not 
powerless after the grant of an order of anticipatory bail; it r etains the 
discretion to revisit the matter if new material rel evant to the issue, is 
discovered and placed on record before it. He highlighted Section 439(2) 
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 
[S. RA VINDRA BHAT, J.]

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and argued that that provision exemplified the power of the co urt to 
modify its previous approach and even revoke altogether an earlier order 
granting anticipatory bail. It was submitted that the bar unde r 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). 
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 
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 a ssist in 
the process of recovery of suspect or incriminating material, which they 
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 er roneous; it is 
contrary to Para 42 and 43 of the declaration of law in Sibbia’s case 
(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 b ail: 
especially conditions which required the applicant/ accused to apply for 
bail after 90 days, or surrender once the charge sheet was file d, and 
apply for regular bail. Counsel relied on Section 437(3) to say t hat 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 
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 betw een the

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individual’s right to personal freedom and the right of investigation of the 
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 
or trial, cannot be countenanced as permissible und er the law. 
Consequently, courts should exercise their discreti on in imposing 
conditions with care and restraint. 
33. The law presumes an accused to be innocent till his gu ilt is 
proved. As a presumably innocent person, he is entitled to all the 
fundamental rights including the right to liberty guaranteed under Article 
21 of the Constitution. Counsel stated that at the same time, while granting 
anticipatory bail, the courts are expected to consider and ke ep 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 
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 
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 extraordi nary 
privilege, should be granted only in exceptional cases. The judi cial 
discretion conferred upon the court must be properly exer cised after 
proper application of mind to decide whether it is a fit case for grant of 
anticipatory bail. In this regard, counsel relied on Jai Prakash Singh v 
State of Bihar 26 . 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
of the Code of Criminal Procedure is an integral part of Articl e 
21. In the first place, there was no provision similar t o Section 
438 in the old Code of Criminal Procedure......Also
26 2012 (4) SCC 325 
27 1995 Supp (3)SCC 419 
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 
[S. RA VINDRA BHAT, J.]

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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 of fences 
cannot he considered as violative of Article 21.” 
35. The decisions in Savitri Agarwal v. State of Maharashtra 
& Anr 28 , 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. 
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 ar rested. 
An applicant’s grounds on which he believes he may be arrest ed for a 
non-bailable offence, must be capable of examination by  the Court 
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 accuse d 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. The following passages in Savitri Agarwal (supra) were relied 
upon: 
“24. While cautioning against imposition of unnecess ary 
restrictions on the scope of the section, because, in it s opinion, 
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 th e right of 
personal freedom, as enshrined in Article 21 of the
Constitution, cannot be made to depend on compliance w ith 
unreasonable restrictions, the Constitution Bench laid d own 
the following guidelines, which the courts are required to k eep 
in mind while dealing with an application for grant  of 
anticipatory bail: 
********** **************** 
28 2009 (8) SCC 325

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(iv) No blanket order of bail should be passed and the court 
which grants anticipatory bail must take care to speci fy the 
offence or the offences in respect of which alone t he order 
will be effective. While granting relief under Sectio n 438(1) 
of the Code, appropriate conditions can be imposed under 
Section 438(2) so as to ensure an uninterrupted investigation. 
One such condition can even be that in the event of the police 
making out a case of a likely discovery under Section 2 7 of 
the Evidence Act, the person released on bail shall be liabl e 
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 whic h 
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 p oint 
of timebut the court may, if there are reasons for d oing so, 
limit the operation of the order to a short period unt il after 
the filing of FIR in respect of the matter covered by t he order. 
The applicant may, in such cases, be directed to ob tain an 
order of bail under Section 437 or 439 of the Code within a 
reasonable short period after the filing of the FIR .” 
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 
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 Kundu 29 in this context. Likewise, attention of 
the court was invited to Muraleedharan v. State of Kerala 30 which 
held that  “Custodial interrogation of such an accused is 
indispensably necessary for the investigating agency to unearth all 
the links involved in the criminal conspiracies com mitted 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 
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 
[S. RA VINDRA BHAT, J.]

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relevant to those made otherwise. Granting an unconditional ord er 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 
generalized imposition of conditions- either as to the period (in terms of 
time, or in terms of a specific event, such as filing of c harge sheet) 
limiting the grant of anticipatory bail. It was submitted tha t 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 ant icipatory 
bail), upon the court’s satisfaction that it is necessary t o do so. Such 
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 
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 Tr ial 
Court and seek regular bail 
38. The concept of bail, i.e. preserving the liberty of citizen – 
even accused of committing offences, but subject to conditions, da tes 
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 i s convicted ”. 
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 fo rest in 
answer to the general summons unless they are actually invol ved in 
proceedings or are sureties for someone who has been seized f or a 
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 impos ed, nor cruel 
and unusual punishments inflicted ”. 
39. Bail ipso facto has not been defined under the Code. It is 
now widely recognized as a norm which includes the governing principles

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enabling the setting of accused person on liberty subject to safeguards, 
required to make sure that he is present whenever n eeded. 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 
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 var ious 
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 
was that courts did not have such a power. Subsequently, the ne ed 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 bai l”; its 
language instead empowers the concerned to court to issue directions 
for grant of bail. 
41. The Law Commission of India, in its 41 st  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 
that apart from false cases, where there are reasonabl e 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 provis ion be 
included for the direction to grant bail in such cases, and that this power 
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 S ection 
438 of the Cr.PC, 1973. 
42. The term ‘anticipatory bail’ finds no place in the Cr.PC itself 
but was used by the Law Commission of India in its 41 st  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 
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 
[S. RA VINDRA BHAT, J.]

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“set at liberty a person arrested or imprisoned, on s ecurity 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 g ranted 
after arrest and therefore means release from the cus tody of 
the police, the latter is granted in anticipation of a rrest and 
is therefore effective at the very moment of arrest . Police 
custody is an inevitable concomitant of arrest for non-bailabl e 
offences. An order of anticipatory bail, constitutes, so to s ay, 
an insurance against police custody following upon arrest 
for offence or offences in respect of which the order is  issued. 
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 accusatio n in 
respect of which the direction is issued, he shall be released 
on bail. Section 46(1) of the CrPC which deals with  how 
arrests are to be made, provides that in making the arrest, the 
police officer or other person making the arrest “shall actual ly 
touch or confine the body of the person to be arrested, unless 
there be a submission to the custody by word or acti on”. A 
direction Under Section 438 is intended to confer conditional 
immunity from this ‘touch’ or confinement. 
43 . In Sibbia (supra), this Court considered the specific question 
of whether the power to grant anticipatory bail under Sect ion 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. 
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 circumstance s of 
each case. The State, on the other hand, argued that  the grant of 
anticipatory bail should at least be conditional upon the ba il applicant 
showing that he is likely to be arrested for an ulterior motiv e - 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 
arrested.

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44. Counsel for the appellants in Sibbia , on the other hand, argued 
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 prescr ibed by 
the legislature under that provision. The Court observed tha t Section 
438(1) is couched in broad and unqualified terms and was of the opinion 
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 
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 
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 di rection 
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.” 
(ii) Grant of an order under Section 438(1) does not per se hamper 
investigation of an offence; Section 438(1)(i) and (ii) enjo in that an 
accused/applicant should co-operate with investigation. Sibbia (supra) 
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 2 7 (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 
is made during a statement (to the police) and pursuant to the accus ed 
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 c ase  for 
grant of anticipatory bail; reading an otherwise wide power would fetter 
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 
[S. RA VINDRA BHAT, J.]

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the court’s discretion. Whenever an application (for relief under Section 
438) is moved, discretion has to be always exercised judic iously, 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 (Par a 22, 
Sibbia ). 
(v) It is not justified to require courts to only grant anticipa tory 
bail in special cases made out by accused, since th e 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 ). 
(vi) Overgenerous introduction (or reading into) of constraints on
the power to grant anticipatory bail would render it Constitu tionally 
vulnerable. Since fair procedure is part of Article 21, the cour t 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). 
(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 seriousne ss of 
the proposed charges, the context of the events likely to l ead to the 
making of the charges, a reasonable possibility of the accused’s presence 
not being secured during trial; a reasonable apprehens ion 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 ). 
(viii) There can be no presumption that any class of accused- i.e. 
those accused of particular crimes, or those belonging to the poo rer 
sections, are likely to abscond. (Para 32, Sibbia ). 
(ix) Courts should exercise their discretion while consid ering 
applications for anticipatory bail (as they do in the case of bail). It would 
be unwise to divest or limit their discretion by prescribin g “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 reasonab le 
grounds, and rooted on objective facts or materials , capable of

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examination and evaluation, by the court, and not based on vague un-
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 ). 
(xii)  Filing of FIR is not a condition precedent for exerci sing 
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, a fter arrest, an 
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 
blanket order would seriously interfere with the duties of the pol ice 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 
application  “should be re-examined in the light of the respect ive 
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 do ing so, limit 
the operation of the order to a short period until after the f iling 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 b e followed 
as an invariable rule. The normal rule should be not to limit the 
operation of the order in relation to a period of ti me.” (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 
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 
[S. RA VINDRA BHAT, J.]

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premium and the value that the Constitution and Article 21 pla ced 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 
having committed. The courts had the discretion to impose such 
limitations (like co-operation with investigation, not ta mpering with 
evidence, not leaving the country etc) as were reasonable and necessary 
in the peculiar circumstances of a given case. However, t here 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 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 Bihar 31 
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 
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
unreasonable restrictions.” 
48. In Gudikanti Narasimhulu  v. Public Prosecutor 32  this court 
observed that 
“. … Personal liberty, deprived when bail is refused,  is too 
precious a value of our constitutional system recognised unde r 
Article 21 that the curial power to negate it is a great trust 
exercisable, not casually but judicially, with livel y concern 
for the cost to the individual and the community. To glamorise 
31 2012 (4) SCC 379 
32 1978 (1) SCC 240

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impressionistic orders as discretionary may, on occ asions, 
make a litigative gamble decisive of a fundamental right. Af ter 
all, personal liberty of an accused or convict is fundamental,
suffering lawful eclipse only in terms of “procedur e 
established by law”. 
49. The reason for enactment of Section 438 in the Code w as 
Parliamentary acceptance of the crucial underpinning of personal liberty 
in a free and democratic country. Parliament wished to fost er 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 attribu tes 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 liber ty, the court 
should lean against the imposition of unnecessary restrictions  on the 
scope of Section 438, especially when not imposed by the legislature. In 
Sibbia, it was observed that: 
“Anticipatory bail is a device to secure the individual’s libert y; 
it is neither a passport to the commission of crime s nor a 
shield against any and all kinds of accusations, li kely or 
unlikely.” 
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: i t 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 
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. 
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 154 th  report had occasion to deal with the subject; it 
recommended no substantial change, - except procedural additions to 
Section 438 and observed as follows: 
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 
[S. RA VINDRA BHAT, J.]

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“18. In the various workshops diverse views were expr essed 
regarding the retention or deletion of the provisio n of 
anticipatory bail. One view is that it is being mis used by 
affluent and influential sections of accused in soc iety and 
hence, be deleted from the Code. The other view is that it is a 
salutary provision to safeguard the personal libert y and 
therefore be retained. Misuse of the same in some in stances 
by itself cannot be a ground for its deletion. However, s ome 
restraints may be imposed in order to minimise such misus e. 
We are, however, of the opinion that the provision cont ained 
under S. 438 regarding anticipatory bail should rem ain in 
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: 
“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 sec tion that in the event of such 
arrest, he shall be released on bail; and that Cour t 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 
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 ob jection 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: 
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 warra nt 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 
cause a notice being not less than seven days notice, together with a copy of such

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order to be served on the Public Prosecutor and the  Superintendent of Police, 
with a view to give the Public Prosecutor a reasona ble opportunity of being 
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 Publi c 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 
Commission of India, 177 th  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, 
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 (no t 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 c heck such misuse or abuse nor 
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 pro vided with firearms, which are 
becoming more and more sophisticated with each pass ing 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. 
Interestingly, the 177 th  report of the Law Commission lamented 
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 decad es of 
independence, that the power of arrest is 
“…is largely considered as a tool of harassment, oppressi on 
and surely not considered a friend of public. The n eed for 
caution in exercising the drastic power of arrest h as been 
emphasized time and again by Courts but has not yie lded 
desired result. Power to arrest greatly contributes  to its 
arrogance so also the failure of the Magistratcy to chec k it. 
Not only this, the power of arrest is one of the lucrative sources 
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 
[S. RA VINDRA BHAT, J.]

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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 wit h oblique 
motive.” 
The latest report of the Law Commission 35  notes that “67 per 
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 
(supra), starting with Salauddin (supra), have highlighted that 
anticipatory bail orders have to be constrained by conditions, not ably 
with reference to time (i.e. three months, etc) or till the happening of a 
certain event. The reasons, and observations, limiting the dura tion of 
grant of anticipatory bail  are outlined below: 
(1) “such anticipatory bail orders should be of a limit ed 
duration only and ordinarily on the expiry of that du ration 
or extended duration the court granting anticipator y 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”.  ( 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 antic ipatory 
bail should not substitute itself for the original Court which 
is expected to deal with the offence.”(Salauddin [sup ra]) 
(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 
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 
35 268 th  Report, 2017.

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evidence. Therefore, it would be salutary and in public interest to 
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 
therefore, anticipatory bail should not be granted readily. 36 
54. A fuller consideration of the various decisions cited earlie r, 
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 
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 pr ecedes 
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. 
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 
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. 
Having regard to the materials said to have been collected by the respondent Enforcement 
Directorate and considering the stage of the invest igation, 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. 
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 
[S. RA VINDRA BHAT, J.]

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55. This court cannot lose sight of the fact that t he Law 
Commission’s 41 st  and 48 th  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. Th at 
situation remains unchanged: the provision remains unaltere d-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 203 rd  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 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 
Section 376DB of the Indian Penal Code.  In other words, Parliament 
37 The amendment, i.e. Criminal Procedure Code (Amendm ent) Act, 2005 – which has 
till now, not been brought into force, reads as fol lows: 
[“(1) Where any person has reason to believe that h e may be arrested on 
accusation of having committed a non- bailable offe nce, 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 
(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 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-sec tion or has rejected the 
application for grant of anticipatory bail it shall be open to an officer in charge

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of police station to arrest without warrant the app licant 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 
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 Publi c Prosecutor, the Court 
considers such presence necessary in the interest of justice.] 
has now denied jurisdiction of the courts (i.e. Court of Session and High 
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 inv olving 
the arrest of any person on accusation of having com mitted 
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 
categorical terms.  Parliament’s omission to restrict the right of citizens, 
accused of other offences from the right to seek ant icipatory bail, 
necessarily leads one to assume that neither a blanket restriction can be 
read into by this court, nor can inflexible guidelines in the exer cise of 
discretion, be insisted upon- that would amount to judicial legislation. 
57. Turning now to the various concerns that impelled this court in 
Salauddin, K.L. Verma, Sunita Devi; Nirmal Jeet Kau r and Adri 
Dharan Das, HDFC Bank, J.J. Manan(supra)  and other decisions 
which outlined the various concerns and problems fa ced by the 
prosecuting agency, or the police, or that competent courts  would be 
deprived of oversight, thus, leading to directions that courts should impose 
time restrictions, or grant temporary or limited bail (e.g. filing of charge 
sheet etc.), this court proposes to deal with such reasoning herea fter. 
58. The various reasons which led to the imposition of restrictions 
or limitations by the decisions noted previously, hinge upon factors such 
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 
[S. RA VINDRA BHAT, J.]

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as: addition of graver offences which the applicant is alleg ed to have 
committed after the grant of anticipatory bail; unea rthing of facts 
disclosing his or her complicity in serious offences, a s for instance, a 
conspirator or kingpin; the accused’s non-cooperation in the course of
investigation, (such as, for example, difficulty in secur ing his person, 
evasion by him, reluctance to answer questions during the investigation 
or providing statements for purposes of recovery of articles in terms of 
Section 27 of the Evidence Act); involvement in very serious or gr ave 
offences such as murder, kidnapping, causing death under un usual 
circumstances and offences which undermine the economy; disclosure 
of information that the offence involves large scale fraud and several 
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 anticip ated in Sibbia 
(supra) .
59. The controlling expressions under Section 438(2) spell o ut 
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 t o dissuade 
him from disclosing such facts to the court or to any polic e officer; a 
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 
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 contrar y 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 
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 
that discretion ought to be exercised by the Full Bench judgment of the

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Punjab and Haryana High Court which cautioned that the power to grant 
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 ough t 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 
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 dea th 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 
that the power to grant anticipatory bail is wide and that the discretion is 
not limited in the manner that the High Court suggeste d. 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. 
61. The imposition of conditions under Section 438(2) w ith 
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 individua ls or 
complainants; possibility of non-cooperation - non-cooperat ion in the 
investigation or the requirement of the accused’s statem ent 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 
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 te xtual 
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 antic ipatory 
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. 
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 
[S. RA VINDRA BHAT, J.]

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62. It is important to notice, here that there is nothing in t he 
provisions of Section 438 which suggests that Parliament int ended 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 
conditions in a provision in the absence of an apparent or manife st 
absurdity, flowing from the plain and literal interpretation of the statute 
(Ref Chandra Mohan v. State of Uttar Pradesh & Ors 38 ). In Reserve 
Bank of India v. Peerless General Finance and Investment Co. Ltd.
& Ors 39 , the relevance of text and context was emphasized in  the 
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. Neith er can be 
ignored. Both are important. That interpretation is best which 
makes the textual interpretation match the contextual. A s tatute 
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, pr ovided 
by such context, its scheme, the sections, clauses,  phrases 
and words may take colour and appear different than w hen 
the statute is looked at without the glasses provid ed by the 
context. With these glasses we must look at the Act as a whole 
and discover what each section, each clause, each p hrase 
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 hav e to be 
construed so that every word has a place and everything is  in 
its place. 
63. Likewise, in Directorate of Enforcement v Deepak 
Mahajan 40  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

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construction, “leads to a manifest contradiction of the apparent 
purpose of the enactment, or to some inconvenience o r absurdity, 
hardship or injustice, presumably not intended, a construct ion 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 & Ors 41 . observed that by no stretch of imagination a Judge is 
entitled to add something more than what is there in the statute by way 
of a supposed intention of the legislature. The cardinal pr inciple 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, 
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 circums tances and 
prevailing facts, which impelled it to introduce that provision, without the 
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 na ture and 
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 prescrib ing the 
limitations is that they become inflexible rules or edict s incapable of 
deviation. Instead, it would be safer to say that w here there are 
circumstances or facts which pose peculiar problems or co mplexities 
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 t hese peculiar 
conditions may be imposed in the given circumstances of any case, 
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 
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 
[S. RA VINDRA BHAT, J.]

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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 
by the statute. 
66. As regards the concern expressed on behalf of the stat e 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 
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 o f seeking 
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 
Upadhyaya 42 , where this court had observed as follows: 
“When a person not in custody approaches a police of ficer 
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 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 custo dy 
: submission to the custody by word or action by a person in 
sufficient. A person directly giving to a police offic er 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 2 7 of the 
Indian Evidence Act : Legal Remembrancer v Lalit Mo han 
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

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and give such information or may send a telephonic or other 
message to the police officer.” 
This view was reiterated and applied in V allabhdas Liladhar v 
Asst. Collector of Customs 43 . 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 
police making out a case of a likely discovery under Sect ion 
27 of the Evidence Act, person released on bail shall be liab le 
to be taken in police custody for facilitating the d iscovery. 
Besides, if and when the occasion arises, it may be pos sible 
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 relea sed on 
bail by invoking the principle stated by this Court in Stat e of 
U.P . v Deoman Upadhyaya.” 
Therefore, the “limited custody” 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 separately 
surrender and seek regular bail. 
67. Now, coming to the instruction in some decision s 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: 
“A close look at some of the rules in the eight-poi nt code 
formulated by the High Court will show how difficult it i s to 
apply them in practice. The seventh proposition says :
“The larger interest of the public and State demand that in 
serious cases like economic offences involving blat ant 
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 
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 
[S. RA VINDRA BHAT, J.]

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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 t he 
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 
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 th e 
accusation appears to be false and groundless.” 
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 
that if mala fides are shown anticipatory bail should  be 
granted in the generality of cases. But it is not e asy 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 judic ial 
construction. Discretion, therefore, ought to be perm itted 
to remain in the domain of discretion, to be exerci sed 
objectively and open to correction by the higher cou rts. 
The safety of discretionary power lies in this twin protection
which provides a safeguard against its abuse. 
According to the sixth proposition framed by the Hi gh 
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 stag e of 
granting anticipatory bail, is satisfied that such a c harge 
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 n o 
warrant for reading into this provision the conditi ons 
subject to which bail can be granted under Section 4 37

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(1) of the Code. That section, while conferring the power 
to grant bail in cases of non-bailable offences, pro vides 
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 
with death or imprisonment for life. If it was intended that 
the exception contained in Section 437 (1) should gover n 
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 alr eady 
pointed out the 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 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 gran t or 
refusal of bail is that in cases falling under Secti on 437, 
there is some concrete data on the basis of which i t is 
possible to show that there appear to be reasonable
grounds for believing that the applicant has been guilty o f 
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 woul d be 
premature and indeed difficult to predicate that ther e 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 contai ned 
in the First Information Report.” 
68. For the above reasons, the answer to the first question in the
reference made to this bench is that there is no offenc e, 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. 
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 
[S. RA VINDRA BHAT, J.]

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At the same time, if there are indications in any special law or sta tute, 
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 al legations 
relating to the commission of offences of a serious nature, with certain 
special conditions, is a matter of discretion to be exercised, having regard 
to the nature of the offences, the facts shown, the background of th e 
applicant, the likelihood of his fleeing justice (or not flee ing justice); 
likelihood of co-operation or non-co-operation with the investig ating 
agency or police, etc. There can be no inflexible time frame for whi ch 
an order of anticipatory bail can continue. 
69. Therefore, this court holds that the view expre ssed in 
Salauddin Abdulsamad Shaikh, K.L. Verma, Nirmal Jeet Kaur, Satp al 
Singh, Adri Dharan Das, HDFC Bank, J.J. Manan and  Naresh Kumar 
Yadav (supra) about the Court of Sessions, or the High Court, bei ng 
obliged to grant anticipatory bail, for a limited duration, or to await the 
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 ti me related or 
investigative event related conditions, should invariably be imposed at 
the time of grant of anticipatory bail are therefore, overruled. Similarly, 
the observations in Mhetre  that “the courts should not impose 
restrictions on the ambit and scope of section 438 Cr.P .C. w hich 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 
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 
ordinary manner and that such conditions then become an inflexibl e 
“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 
justice- to impose special conditions. Imposing such conditions, would

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have to be on a case to case basis, and upon exercise of dis cretion by 
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 Secti on 27 of 
the Evidence Act, person released on bail shall be liable to be taken in 
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. 
Re Question No. 2: 
Whether the life of an anticipatory bail 
should end at the time and stage when the accused i s 
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 
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 t he width 
and amplitude of the power under Section 438, made in answer to t he 
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 
under the provisions of Chapter XXXIII for the purp oses 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 
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 com pel the 
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 
[S. RA VINDRA BHAT, J.]

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accused to surrender and seek regular bail. As a ma tter of fact, 
interestingly, if indeed, if a charge-sheet is filed where the accused is on 
anticipatory bail, the normal implication would be that t here 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, t he 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 investig ation were 
any occasion to arise calling for intervention of the court for infraction 
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 
station “on such accusation”, and is willing to give bail, “he shall be 
released on bail; and if a Magistrate taking cogniz ance of such 
offence decides that a warrant should issue in the first instance 
against that person he shall issue a bailable warrant in conform ity 
with the direction of the Court under sub-section ( 1)”.  The order 
granting anticipatory bail, is also- as noticed earlier, 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 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). 
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 
released on bail under Chapter XXXIII. There may be numerous

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grounds for exercise of power under 437 (5) and 439  (2). 
The principles and grounds for cancelling a bail ar e well 
settled, but in the present case, we are concerned o nly with 
one aspect of the matter, i.e., a case where after accus ed has 
been granted the bail, new and serious offences are added in 
the case. A person against whom serious offences have be en 
added, who is already on bail can very well be directed to be
arrested and committed to custody by the Court in exercise o f 
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 adopte d 
while exercising power under 437 (5) and 439 (2), but the re 
may be cases where without cancelling the bail granted to an
accused, on relevant consideration, Court can direc t the 
accused to be arrested and committed to custody. The addition 
of serious offences is one of such circumstances, under whic h 
the Court can direct the accused to be arrested and committed 
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 Se ctions 
437 (5) and 439 (2) of Cr.P.C. Sub-section (5) of S ections 
437 of Cr.P .C uses expression ‘if it considers it necess ary so 
to do, direct that such person be arrested and commit him to 
custody’. Similarly, sub-section (2) of Section 439 of C r.P .C. 
provides: ‘may direct that any person who has been released 
on bail under this Chapter be arrested and commit h im to 
custody’. A plain reading of the aforesaid provisions indi cates 
that provision does not mandatorily provide that th e Court 
before directing arrest of such accused who has already bee n 
granted bail must necessary cancel his earlier bail . A 
discretion has been given to the Court to pass such orders  to 
direct for such person be arrested and commit him t o the 
custody which direction may be with an order for cancellat ion 
of earlier bail or permission to arrest such accuse d due to 
addition of graver and non- cognizable offences. Two Judg e 
Bench judgment in Mithabhai Pashabhai Patel (supra) us es 
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 
[S. RA VINDRA BHAT, J.]

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the word ‘ordinarily’ in paragraph 18 of the judgment which 
cannot be read as that mandatorily bail earlier gra nted to 
the accused has to be cancelled before Investigating Officer 
to arrest him due to addition of graver and non-cogni zable 
offences. 
********* ******** ******** 
27. Relying on the above said order, learned counsel for the 
appellant submits that respondent State ought to get fir st the 
order dated 10.03.2016 granting bail to appellant cancell ed 
before seeking custody of the appellant. It may be tr ue that 
by mere addition of an offence in a criminal case, in w hich 
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 a pply 
for bail in respect of new offences added and the Court aft er 
applying the mind may either refuse the bail or grant th e bail 
with regard to new offences. In a case, bail application of t he 
accused for newly added offences is rejected, the a ccused 
can very well be arrested. In all cases, where accused i s bailed 
out under orders of the Court and new offences are added 
including offences of serious nature, it is not necessa ry that 
in all cases earlier bail should be cancelled by th e Court 
before granting permission to arrest an accused on the basis
of new offences. The power under Sections 437 (5) an d 439 
(2) are wide powers granted to the court by the Legis lature 
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 arres ting the 
accused and commit him to custody can only be passe d by 
the Court after cancelling the earlier bail. 
28. Coming back to the present case, the appellant was alr eady 
into jail custody with regard to another case and t he 
investigating agency applied before Special Judge, NIA Cou rt 
to grant production warrant to produce the accused before 
the Court. The Special Judge having accepted the pra yer of

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grant of production warrant, the accused was produced before 
the Court on 26.06.2018 and remanded to custody. Thus , in 
the present case, production of the accused was wit h the 
permission of the Court. Thus, the present is not a case w here 
investigating agency itself has taken into custody the 
appellant after addition of new offences rather acc used was 
produced in the Court in pursuance of production wa rrant 
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 product ion of 
appellant before the Court. In the facts of the present case, it 
was not necessary for the Special Judge to pass an order 
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 
bail to an accused, further cognizable and non-bail able 
offences are added:- 
(i) The accused can surrender and apply for bail for ne wly 
added cognizable and non-bailable offences. In even t of 
refusal of bail, the accused can certainly be arreste d. 
(ii) The investigating agency can seek order from th e court 
under Sections 437 (5) or 439 (2) for arrest of the a ccused 
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 cus tody the 
accused who has already been granted bail after cancellati on 
of his bail. The Court in exercise of power under S ections 
437 (5) as well as 439 (2) can direct the person wh o has 
already been granted bail to be arrested and commit him t o 
custody on addition of graver and non-cognizable offe nces 
which may not be necessary always with order of cancelling
of earlier bail. 
(iv) In a case where an accused has already been gr anted 
bail, the investigating authority on addition of an offence or 
offences may not proceed to arrest the accused, but  for 
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 
[S. RA VINDRA BHAT, J.]

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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 
Haryana 44  this court had observed that 
“bail once granted should not be cancelled in a mechan ical 
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 e njoying 
the concession of bail during the trial.” 
74. This decision was followed, and its ratio applied, in Hazari 
Lal Das v State of West Bengal & Anr 45 . 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 
the bail also has the power to cancel it. The discr etion of 
grant or cancellation of bail can be exercised eithe r at the 
instance of the accused, the Public Prosecutor or t he 
complainant, on finding new material or circumstances at any 
point of time. 
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. 
25.8. Discretion vested in the court in all matters sho uld be 
exercised with care and circumspection depending upo n the 
facts and circumstances justifying its exercise. Si milarly, 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 po wer 
and discretion conferred by the legislature to a rigorous co de 
of self-imposed limitations. 
44 1995 (1) SCC 349 
45 2009 (10) SCC 652 
46 2016 (1) SCC 152

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25.9. No inflexible guidelines or straitjacket formu la can be 
provided for grant or refusal of the anticipatory bail bec ause 
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 refu sal of 
anticipatory bail should necessarily depend on the facts and
circumstances of each case.” 
75. The three-judge decision in Sudhir v. Maharastra 47  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 H igh Court 
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 Bihar 48  the issue was whether the anticipatory bail, 
granted subject to certain conditions, earlier, which had been considered 
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 i n 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 
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 
of behaviour of the accused suggestive of his fleeing from  justice, or 
evading the authority or jurisdiction of the court, or his in timidating 
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 
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 
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 
[S. RA VINDRA BHAT, J.]

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124 SUPREME COURT REPORTS [2020] 2 S.C.R. 
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: 
(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 
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 
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 t he 
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. 
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 apprehensi on (of 
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 reasonab ly 
apprehends his or her arrest, as well as his version of the fa cts. 
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 
basis for apprehending arrest.

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(b) The court, before which an application under Section 438, is 
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 
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
evidence (including intimidating witnesses), likelihood of fleeing 
justice (such as leaving the country), etc. The courts would b e 
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 
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. Like wise, 
conditions which limit the grant of anticipatory bail may be granted, 
if they are required in the facts of any case or cases; how ever, 
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 
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 
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. 
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 
[S. RA VINDRA BHAT, J.]

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(f) Orders of anticipatory bail do not in any manner limit or restrict 
the rights or duties of the police or investigating agen cy, to 
investigate into the charges against the person who seeks and i s 
granted pre-arrest bail. 
(g) The observations in Sibbia regarding “limited custody” 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 separately surrende r and 
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 regar d 
to a discovery of facts made in pursuance of inform ation 
supplied by a person released on bail by invoking the principle
stated by this Court in State of U.P . v Deoman Upadhyaya.” 
(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 
to witnesses with a view to influence outcome of the investigation 
or trial, etc. The court – in this context is the court whic h grants 
anticipatory bail, in the first instance, according to pr evailing 
authorities. 
(i) The correctness of an order granting bail, can be consider ed 
by the appellate or superior court at the behest of the stat e 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 & Anr 52 ; Jai Prakash Singh (supra) State through C.B.I. 
vs. Amarmani Tripathi 53 ). This does not amount to “cancellation” 
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 
53 (2005) 8 SCC 21

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Salauddin and subsequent decisions (including K.L. Verma, 
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- i t is not the 
restrictions that are fundamental. Joseph Story, the great jur ist 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 fr eedom 
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 Rowla tt 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 
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 
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 
be that in fractions, little by little, the discretion, advisedly  kept wide, 
would shrink to a very narrow and unrecognizably tiny portion, t hus 
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. 
ARUN MISHRA, INDIRA BANERJEE AND VINEET 
SARAN,  JJ. 
We have seen the drafts of Justice M.R. Shah and Justi ce S. 
Ravindra Bhat and are in agreement with them. Since the re is no 
SUSHILA AGGARWAL v. STATE (NCT OF DELHI) 
[S. RA VINDRA BHAT, J.]

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difference of opinion between the two, we are in agreement  with the 
reasoning of Justice M.R. Shah and Justice S. Ravindra Bhat tha t 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 interpre ted in 
Salauddin Abdulsamad Shaikh v. State of Maharashtra 1996 (1) 
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 
(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. 
ARUN MISHRA, INDIRA BANERJEE, VINEET SARAN, 
M. R. SHAH AND S. RA VINDRA BHAT, JJ. 
FINAL CONCLUSIONS: 
In view of the concurring judgments of Justice M.R. Shah and of 
Justice S. Ravindra Bhat with Justice Arun Mishra, Justice Indira 
Banerjee and Justice Vineet Saran agreeing with them, the f ollowing 
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
limited to a fixed period; it should inure in favour of the accused without 
any restriction on time. Normal conditions under Section 437 (3) re ad 
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. 
(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 necessitat ing the court to 
limit the tenure of anticipatory bail, it is open for it to do so.

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1. This court, in the light of the above discussion in the t wo 
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 
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 an ticipatory 
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 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 a s the facts are 
clear and there is reasonable basis for apprehending arrest. 
(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 
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 
fleeing justice (such as leaving the country), etc. The cour ts 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 investigatin g 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, 
such limiting conditions may not be invariably imposed. 
54  1980 (2) SCC 565 
SUSHILA AGGARWAL v. STA TE (NCT OF DELHI) 
[ARUN MISHRA, INDIRA BANERJEE, VINEET SARAN, M. R. SHAH AND 
S. RA VINDRA BHA T, JJ.]

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130 SUPREME COURT REPORTS [2020] 2 S.C.R. 
(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 
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. 
(6) An order of anticipatory bail should not be “blanket” in t he 
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. 
(7) An order of anticipatory bail does not in any manner limit or 
restrict the rights or duties of the police or investig ating 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 
“deemed custody” to facilitate the requirements of the investi gative 
authority, would be sufficient for the purpose of fulfilling the provisions 
of Section 27, in the event of recovery of an article, o r 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) 
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 t he principle 
stated by this Court in State of U.P . v Deoman Upadhyay a.” 
(9) It is open to the police or the investigating agency to move the 
court concerned, which grants anticipatory bail, for a directio n under 
Section 439 (2) to arrest the accused, in the event of violat ion 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 or trial, etc.

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131 
(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 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. (See Prakash Kadam 
& Etc. Etc vs Ramprasad Vishwanath Gupta & Anr 55 ; 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 
of Maharashtra & Ors 57 (and other similar judgments) that no restrictive 
conditions at all can be imposed, while granting anticipato ry bail are 
hereby overruled. Likewise, the decision in Salauddin Abdulsamad 
Shaikh v. State of Maharashtra 58 and subsequent decisions (including 
K.L. Verma v. State & Anr 59 ; Sunita Devi v. State of Bihar & Anr 60 ;
Adri Dharan Das v. State of West Bengal 61 ; Nirmal Jeet Kaur v. 
State of M.P . & Anr 62 ; HDFC Bank Limited v. J.J. Mannan 63 ; Satpal 
Singh v. the State of Punjab 64 and  Naresh Kumar Yadav v Ravindra 
Kumar 65 ) 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 . 
Divya Pandey Reference answered. 
55  (2011) 6 SCC 189 
56  (2005) 8 SCC 21 
57  2011 (1) SCC 694 
58  (1996 (1) SCC 667) 
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 
SUSHILA AGGARWAL v. STA TE (NCT OF DELHI) 
[ARUN MISHRA, INDIRA BANERJEE, VINEET SARAN, M. R. SHAH AND 
S. RA VINDRA BHA T, JJ.]