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The Constraints of Time vis-à-vis Grant of an “Anticipatory Bail”

Updated: Jan 20

Sushila Aggarwal and others .v. State (NCT of Delhi) and Another, Special Leave Petition (Criminal) Nos.72817282/2017

The history of our republic and saga of the freedom movement has shown how the likelihood of arbitrary arrest, indefinite detention, and the lack of any legislative safeguards played a vital role in rallying the populace to champion for independence. The brutal suppression of the general public when it was peacefully exercising its right to protest against the Rowlatt Act; the Jallianwalla Bagh massacre and several other incidents augur volumes about the necessity of such safeguards in a democracy. In the spectre of arbitrary and heavy-handed arrests which meant to harass and humiliate citizens and for the interest of a few influential individuals (but to further any meaningful investigation into offenses), lies the foundation of Section 438 of the Code of Criminal Procedure, 1973.

Section 438 of the Code puts forth the directions for the grant of an “anticipatory bail” to a person apprehending arrest. However, the term “anticipatory bail” is not defined anywhere in the Code. In Balchand Jain .v. the State of M.P. (1976) 4 SCC 572, the apex court defined an “anticipatory bail” as “bail-in anticipation of arrest.” The grant of this bail should be sought based on concrete facts and not mere allegations. It is not mandatory for the grant of an anticipatory bail that an FIR is filed, and as long as there exists a reasonable apprehension of arrest, the grant is countenanced.


A Special Leave Petition was filed in the Supreme Court for determining the time limit to be set while granting an Anticipatory Bail. The court confronted conflicting verdicts rendered by the benches of varying strengths, particularly in the cases of Gurbaksh Singh Sibbia and others v. State of Punjab (1980) 2 SCC 565, Siddharam Satlingappa Mhetre .v. State of Maharashtra (2011) 1 SCC 694, and Salauddin Abdulsamad Shaikh .v. State of Maharashtra (1996) 1 SCC 667, subsequently followed in K.L. Verma .v. State and Another (1998) 9 SCC 348.


  1. Whether the protection granted to a person under Section 438 of the Code should be limited to a fixed period to enable the person to surrender before the Trial Court and seek regular bail?

  2. Whether the life of anticipatory bail should end at the time and stage when the accused is summoned by the court?

Relevant Provisions and Indentures

  1. Section 437 to 439 of the Code.

  2. Article 21 of the Constitution of India.

  3. 41st Report of the Law Commission of India.


The apex court in its unanimous verdict held that the restriction of time shouldn’t invariably be foisted on the accused. Regarding the first issue, the court relied on 41st Report of the Law Commission and its judgment in Gurbaksh Singh Sibbia to conclude that the necessity for granting “anticipatory bail” mainly arises because sometimes the influential persons try to implicate their rivals in false cases to disgrace them or for other purposes by getting them detained in jail, even if for a brief period. The accentuation of political and business rivalry had led to a stupendous increase in this practice. Therefore, intending to curb the occurrence of such a pervasive phenomenon, the court deemed it necessary to do away with imposing “inflexible constraints” on the time and held that the grant of anticipatory bail should not, generally, be restricted by time constraints. However, to balance the conflicting interests – an individual’s liberty and sovereign power of the police to investigate – the court further added that when a propensity to abscond or falter the edifice of investigation is exhibited by the accused, the court may impose constraints of time on the grant of anticipatory bail.

Apropos the second issue of the case, the court expounded, while heavily relying on the judgment delivered by the constitution bench in Gurbaksh Singh Sibbia, that the life or duration of a bail order does not, generally, end at the time and stage when the accused is summoned by the court, and it may continue till the end of the trial. Refuting the averment that once granted, the duration of an anticipatory bail may not be culled. Therefore, the court finally held that it shall be accorded considerable leeway to limit the tenure of anticipatory bail if necessitated by specificities of the case.


Satyam Bhardwaj is currently pursuing law at Gujarat National Law University, Gandhinagar.

You can contact them at satyambhardwajinfinity@gmail.com or www.linkedin.com/in/satyam-bhardwaj-308590199

Edited by: Swathi Ashok Nair


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