SUSHILA AGGARWAL AND ORS. V. STATE (NCT OF DELHI) AND ANR.
Citation: 2020 SCC OnLine SC 98 Supreme Court of India (Constitution Bench) Jurisdiction: India Anticipatory Bail · Section 438 CrPC Reading time: ~9 min
Quick Summary
The Supreme Court settled the confusion on anticipatory bail under Section 438 CrPC. It held that protection is not normally time-bound and does not automatically end at summoning or framing of charge. It can continue till the end of trial, subject to suitable conditions. Courts must balance liberty with fair investigation.
Issues
- Should Section 438 protection be limited to a fixed period to force surrender and seek regular bail?
- Does anticipatory bail end when the accused is summoned or when charges are framed?
Rules
- Section 438 CrPC: Court may grant anticipatory (pre-arrest) bail with suitable conditions.
- Section 437 CrPC: General provision on bail by Magistrates post-arrest (for contrast).
- Judicial discretion must protect personal liberty while ensuring fair investigation.
Facts (Timeline)
Arguments (Appellant vs Respondent)
For No Time Limit
- Liberty under Article 21 needs stable protection, not a ticking clock.
- Time-caps create forced surrender even when cooperation exists.
- Court can always modify/cancel bail if misused.
For Time Limit
- Open-ended protection may impede investigation.
- At summoning/charge stage, accused should seek regular bail.
- Uniform cap ensures certainty for police/courts.
Judgment
The Court held that anticipatory bail should not normally be time-bound. It need not end at the summons or charge stage and can continue till the end of trial. Courts may add conditions to protect investigation and may cancel bail if conditions are breached.
Ratio Decidendi
- Section 438 is a tool to protect personal liberty; no default expiry.
- Duration depends on case facts; conditions safeguard investigation.
- Courts retain control to vary, tighten, or cancel protection.
Why It Matters
It resolves conflict in bail jurisprudence, giving clear guidance to trial courts and police. Accused persons get predictable protection, while courts keep strong oversight to prevent misuse.
Key Takeaways
- No fixed time cap on Section 438 protection.
- Does not end at summons or charge.
- Can last till trial ends.
- Court can impose conditions.
- Bail may be modified/cancelled upon misuse.
- Liberty and investigation must be balanced.
Mnemonic + 3-Step Hook
Mnemonic — “ANTICIPATE”
- Article 21 liberty
- No fixed cap
- Till trial
- Impose conditions
- Cancel if misused
- Investigation protected
- Pre-arrest shield
- Apply even pre-FIR (fit cases)
- Trial court oversight
- Equitable discretion
3-Step Hook:
- Ask: Is arrest likely? Is the case fit?
- Align: Conditions to protect probe.
- Adjust: Modify or cancel on misuse.
IRAC Outline
| IRAC Element | Answer (Easy English) |
|---|---|
| Issue | Is anticipatory bail under Section 438 time-bound and does it end at summons/charge? |
| Rule | Section 438 protects liberty; courts add conditions; no default expiry is prescribed. |
| Application | Time-caps risk forced surrender; conditions can secure investigation without ending protection. |
| Conclusion | Not time-bound; may continue till trial; courts retain power to vary or cancel. |
Glossary
- Anticipatory Bail
- Pre-arrest bail granted in anticipation of arrest under Section 438 CrPC.
- Cognizance
- The stage when a court takes notice of an offence and proceeds under CrPC.
- Conditions
- Restrictions added by court (e.g., join investigation, do not influence witnesses).
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