Sushila Aggarwal and others v. State (NCT of Delhi) (2020) SSC

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  • Post last modified:January 8, 2022

Coram: Justice M.R. Shah, Justice Arun Mishra, Justice Indira Banerjee, Justice Vineet Saran, Justice Ravindra Bhat

The Constitutional Bench by pointing towards the difference in forms of arrest under section 438 and 437, stated that the bail under section 438 is sought when there is an apprehension of arrest and later is taken recourse at the stage when sufficient data is available to the Court and thus, no special case needs to be made out in granting bail under section 438. The Courts have to very cautiously exercise the power granted to them under section 438 and cannot be invoked on vague allegations. Hon’ble Justice Ravindra Bhatt interpreted Section 438 as an essential element of Article 21 of the Indian Constitution. According to Justice Bhatt, unreasonable restrictions cannot be imposed on the right to anticipatory bail. Further, the provision of section 438 is a procedural legal path that concerns the personal liberty of freedom.

Section 438(2) of CrPC read together with section 437(3) lay enough safeguards for the authorities to prohibit the accused to escape from the authorities. Any kind of violations of the conditions imposed on him will lead to his arrest under section 439(2). The accused who has been granted anticipatory bail will continue to be at liberty even if a charge sheet is filed. But it is his duty to cooperate with the Police and to carefully follow all the conditions. With regards to the conflicting opinions of the Supreme Court in different cases, the Court held the Judgement given in Siddharam Mhetre v. State of Maharashtra and the Judgements that followed to be bad in law and thus stands overruled.  The Constitutional Bench of the Supreme Court in the case of Gurbaksh Singh Sibbia v. State of Punjab is considered as the law and it needs reiteration.

The Hon’ble Justice M.R. Shah stated that in order to balance the rights of the police for investigation as well as that of the accused, in certain conditions the Apex Court will impose a time limit for such bail till FIR is filed. But the normal rule will be not to limit the operation of the order.

Regarding the First Issue- The Court held that Anticipatory bail as a ‘general rule’ will not be limited to a fixed period of time. Usual or standard conditions can be imposed under section 437(3) read with 438(2) of CrPC if the situation demands.


Bail has always been an essential aspect of Criminal Law Jurisprudence. Bail protects an individual’s liberty and helps to counter false presumptions. It is a magical tool that is to be carefully used. The Constitutional Bench in the case of Sushila Aggarwal and others v. State (NCT of Delhi) and Another overruled the judgements that fixed the time period of the anticipatory bail. The decision given in this case by the Apex Court by acting as a legal precedent will serve the interest of the public. It will set a benchmark for the lower courts to understand the scope of anticipatory bail under section 438 of the CrPC.

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