Sushila Aggarwal v. State (NCT of Delhi)

Why this case matters

For years courts granting anticipatory bail under Section 438 CrPC did not agree on how long the protection should last. Some orders protected the accused only for a few weeks, or until the charge sheet or the summons, and then required them to surrender and apply for regular bail. In Sushila Aggarwal a Constitution Bench of five judges answered the question: the protection need not be limited to a fixed period and can last till the end of the trial, though a court may limit it where the facts of a case call for it.

The facts

The questions reached the Court in special leave petitions against orders of the Delhi High Court in a bail application. Benches of different strength had taken conflicting views: on one side Gurbaksh Singh Sibbia v. State of Punjab (1980), Siddharam Satlingappa Mhetre v. State of Maharashtra and Bhadresh Bipinbhai Sheth v. State of Gujarat; on the other, Salauddin Abdulsamad Shaikh v. State of Maharashtra and the cases that followed it. Two questions were therefore referred to a larger bench.

The question before the Court

First, should the protection granted under Section 438 CrPC be limited to a fixed period, so that the person must surrender before the trial court and seek regular bail? Second, should anticipatory bail end when the accused is summoned by the court?

What the Court said

Justice M.R. Shah and Justice S. Ravindra Bhat wrote separate, concurring judgments, and the other three judges agreed with both. Reading Sibbia, Justice Shah held:

We are of the opinion that the conditions can be imposed by the concerned court while granting pre-arrest bail order including limiting the operation of the order in relation to a period of time if the circumstances so warrant, more particularly the stage at which the “anticipatory bail” application is moved, namely, whether the same is at the stage before the FIR is filed or at the stage when the FIR is filed and the investigation is in progress or at the stage when the investigation is complete and the charge sheet is filed. However, as observed hereinabove, the normal rule should be not to limit the order in relation to a period of time.

Para 7.5 · M. R. Shah, J. · [2020] 2 S.C.R. 49 · Open at this page

Justice Bhat ended his judgment with a reminder:

In conclusion, it would be useful to remind oneself that the rights which the citizens cherish deeply, are fundamental- it is not the restrictions that are fundamental.

Para 79 · S. Ravindra Bhat, J. · [2020] 2 S.C.R. 127 · Open at this page

The answers to the reference

All five judges then set out the answers together:

(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) read with Section 438 (2) should be imposed; if there are specific facts or features in regard to any offence, it is open for the court to impose any appropriate condition (including fixed nature of relief, or its being tied to an event) etc.

(2) As regards the second question referred to this court, it is held that the life or duration of an anticipatory bail order does not end normally at the time and stage when the accused is summoned by the court, or when charges are framed, but can continue till the end of the trial. Again, if there are any special or peculiar features necessitating the court to limit the tenure of anticipatory bail, it is open for it to do so.

Final conclusions · [2020] 2 S.C.R. 128 · Open at this page

They added clarifications for courts hearing applications under Section 438. On conditions:

(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 courts would be justified – and ought to impose conditions spelt out in Section 437 (3), Cr. PC [by virtue of Section 438 (2)]. The need to impose other restrictive conditions, would have to be judged on a case by case basis, and depending upon the materials produced by the state or the investigating agency. 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.

Clarification (3) · [2020] 2 S.C.R. 129 · Open at this page

What the Court decided

The reference was answered in these terms. The answers and the twelve clarifications appear at the end of the judgment, on pages 128 to 131 of the report; read them in full before relying on the case, including what the Court said about the earlier decisions on either side of the conflict.

Why it still matters

Sushila Aggarwal is the leading authority on how long anticipatory bail lasts and what conditions may go with it, and High Courts apply it regularly; the case map below shows some of them. It read and relied on the earlier Constitution Bench judgment in Gurbaksh Singh Sibbia (1980), so the two are usually cited together. Since 1 July 2024, the provisions it interprets are in the Bharatiya Nagarik Suraksha Sanhita (BNSS), so check the new section when you rely on it today.

How lawyers use it

• To oppose a condition that limits anticipatory bail to a few weeks, or until the charge sheet, without reasons drawn from the facts.
• To seek anticipatory bail before an FIR is registered, on concrete facts showing a reasonable apprehension of arrest.
• For the prosecution, to ask for specific conditions, or for arrest under Section 439(2) CrPC when conditions are broken.
• To keep anticipatory bail running after the charge sheet and the summons, through the trial.