In apprehension of arrest due to a complaint filed against an individual for a non-bailable offence, such an individual can avail the provisions of law under the Indian Penal Code for the purpose of safeguarding himself/herself from such arrest. Section 438 of the Indian Penal Code provides for grant of bail on the apprehension of being arrested. The question put forth before the Supreme Court by way of a Special Leave Petitions was heard by a bench headed by Justice Kurian Joseph as it noted contradictory views in earlier judgments as to whether an anticipatory bail should be for a limited period of time or not.

Several judgments of the Supreme Court have placed reference to the judgment of Shri Gurbaksh Singh Sibbia and others v. State of Punjab wherein the Constitution Bench of the Supreme Court held that anticipatory bail should not be granted for a limited period. The Bench further stated that:

“In Sibbia (supra), this Court has briefly dealt with the question of duration of anticipatory bail. It seems to us that the discussion primarily pertained to grant of anticipatory bail at the pre-FIR stage (see paragraph 43 quoted below). It appears that there are indications in Sibbia (supra) that anticipatory bail may be for a limited period.”

The Bench also quoted reference to precedents such as Salauddin Abdulsamad Shaikh v. State of Maharashtra, Nirmal Jeet Kaur v. State of M.P. and another, K.L. Verma v. State and another, Sunita Devi v. State of Bihar and another, Adri Dharan Das v. State of W.B. Whilst further pondering and adjudicating upon the issue, the Bench also stated as follows:

“This Court in HDFC Bank Limited v. J.J. Mannan has referred to a contention based on the Constitution Bench decision in Sibbia (supra) and yet it has taken the view that the protection under Section 438 is only till the investigation is completed and chargesheet is filed”.

Due to the conflicting views the different Benches of varying strength on the issue of anticipatory bail and its limitations, the reference was made for consideration before a larger bench to decide upon the two important questions that needed clarity and conformation:

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


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Order: Sushila Aggarwal and Ors Versus State (NCT of Delhi) and Anr