top of page



After the conflicting views given by different benches of varying strength of this Honorable SC the following issues are referred for consideration to this 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.”

Senior counsel appearing as Amicus Curiae made reference to the judgment of Balchand Jain v. State of M.P. stating that the expression “anticipatory bail” is not defined in the code. Also the counsel made reference to the historical perspective of S.438 CrPC. The counsel further stated that the power of granting “anticipatory bail” vests only with the HC or the Sessions Court. This application can be applied at different stages namely pre investigation stage, post investigation stage. In the case of Gurbaksh Singh Sibbia (supra), a constitutional bench of this court held that the facility u/s 438 CrPC affords is known as “anticipatory bail”. According to the submissions of the Amicus Curiae the chief questions before this court are

“(a) what is the life or currency of an anticipatory bail once the same has been granted by the competent court?(b) Once an order granting anticipatory bail has been passed, whether the said anticipatory bail only survives till the stage of filing of charge sheet/challan/final report or whether it subsists during the entire duration of trial? (c) where if new incriminating materials are found during the course of investigation, whether they could be relied on by the Court to cancel anticipatory bail which has already been granted?”

The Amicus Curiae for answering these questions submitted before the court the subsequent decisions of this court in the case of Siddharam Satlingappa Mhetre (supra). Also it was submitted that the discretion of the Sessions Court and HC is absolute and has no limits. Also this discretion can be used to limit the duration of the anticipatory bail.

Another counsel who is requested to assist as Amicus Curiae submitted that the power exercised u/s 438 is similar to the power exercised u/s 437 & 439 of CrPC. The power of arrest of police u/s 41 CrPC cannot be exercised in every FIR registered u/s 154 CrPC. Also reference was made to the judgments

Joginder Kumar v. State of U.P, Lalitha Kumari v. State of U.P , Arnesh Kumar v. State of Bihar,  C. Abraham v. State of Maharashtra

Also the power of arrest is circumscribed u/s 438 CrPC. It is further submitted that the order u/s 438 is subject to the HC u/s 439(2) CrPC. The pre-arrest bail u/s 438 is exactly similar to arrest bail u/s 437 & 439.

The Solicitor General of India relying on paragraphs 42 & 43 submitted that the court can limit the period of anticipatory bail for judicial reasons. Also it is submitted that where the anticipatory bail is granted for a limited period its life would extinguish accordingly. But when it is granted without conditions, its life may terminate upon the circumstances warranting cancellation.  Reliance was made to the judgments of HDFC Bank Ltd. (supra) and Satpal Singh (supra).

The ASG submitted before this court the judgment Uday Mohanlal Acharya v. State of Maharashtra. He also submitted that there should be conditions imposed in granting a pre-arrest bail order.

The counsel for the respondents submitted that the constitutional bench in Gurbaksh Singh Sibbia has dealt with various aspects of anticipatory bail and preserved the discretionary powers granted by this court. Also reference was made to Salauddin Abdulsamad Shaikh. There is no requirement to limit the duration of anticipatory bail.

The court made 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 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 the principle stated by this Court in State of U.P. v Deoman Upadhyaya.

The court after hearing the submissions of the respective parties observed that as in the case of Balchand Jain , “anticipatory bail” means “bail in anticipation of arrest”. “if there are reasons for doing so, limit the operation 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 directed to obtain an order of bail under Sections 437 or 439 of the Code within a reasonable short period after the filing of the FIR”.

This judgment was pronounced by Justice M.R.Shah which was agreed by Justice S.Ravindra Bhat. Since there is no difference of opinion between the two the three judge bench comprising Justices Arun Mishra, Indira Banerjee and Vineet Saran agreed their reasoning that the conclusion in  Shri Gurbaksh Singh Sibbia and others v. State of Punjab needs reiteration  and the restricted interpretation of S.438 CrPC in Salauddin Abdulsamad Shaikh v. State of Maharashtra is incorrect.




bottom of page