Rights cherished by Citizens are Fundamental, not the restrictions: Justice Ravindra Bhat

Rights cherished by Citizens are Fundamental, not the restrictions: Justice Ravindra Bhat

Case No.: Special Leave Petition (Criminal) Nos. 7281-7282/2017

Case Name: Sushila Aggarwal & Ors. vs. State (NCT of Delhi) and others

Coram: Justice M.R. Shah

The foremost rights granted to the citizens of India by the Indian constitution preserve liberty and provide freedom to an individual residing in India. The fundamental right is above all rights granted to the citizen and no parliament or legislation can amend or restrict the fundamental rights of a citizen. The constitution will lose its existence if the fundamental right does not protect the individual as even in the emergency all right get terminated except the fundamental right of citizens. It provides safety, security, and equality to the citizens in the country. For the proper functioning of democracy and suppressing the supremacy of political power, the fundamental rights of citizens must be sustained in all the situations. 

Brief facts

The special leave petition was filed before the court on the conflicting view of the benches related to the expression of anticipatory bail. The court observed anticipatory bail, not as the bail which is granted by the court for the anticipation of the crime. It is an order granted by the court to release a person only if the person is arrested. The person must be arrested for the operation of anticipatory bail.

Another view is based on the historical perspective i.e. 41st commission report the parliament introduced the new section 438 of CrPc “anticipatory bail”. As per commission the influential person to save their reputation from the false case against seeking anticipatory bail before the arrest of the person. Even if the reasonable ground has been found that the accused will not abscond or misuse his liberty on bail, then there is no need to submit him on custody before applying for bail.

Even if the person who is apprehending that the FIR is going to be filed against him but not yet filed against him, then also he can seek for the anticipatory bail either before the High Court or Court of sessions. It was stated that once the bail is granted under such provisions then there is no limit for the period of bail until summon gets issued against the person.


  • Whether the protection granted to a person under the provision of anticipatory bail is limited to fixed period so as the person can seek regular bail while surrendering before the trial court?

Key features

  • The issuance of summoning by the court expires the period of anticipatory bail granted to the person.
  • The bail grants the person freedom from the custody of police on the surety or bond that the person will appear in the trial related to the offences charged against him.
  • The ordinary bail is given after the arrest of the person but the anticipatory bail was granted for the anticipation of the arrest.
  • It is at the discretion of the court to limit the duration of the anticipatory bail if during the investigation the evidence established the complicity of the accused.  


It was held that the right which the citizens cherish deeply are fundamental and they are not the restrictions. It was stated that the groundless arrest is the prevailing phenomenon that removes the restriction to grant anticipatory bail. The protection of anticipatory bail should not be for a limited period. It is to favour the accused without the restrictive period. The life of the anticipatory bail cannot end with summoning the accused and might end until the completion of the trial.

Nothing will oblige the court to impose the restriction. The court while considering the application will also see the nature of offences, tampering with the evidence, the likelihood of fleeing from justice. The anticipatory bail was granted based on behaviour and conduct of the accused. Even it does not restrict the police to further investigate the charges imposed against the accused.

Edited by Vartika Gajendra Singh

Approved & Published – Sakshi Raje

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Mohita Yadav
I am Mohita Yadav pursuing BBA. LLB(Hons.) at The ICFAI university, Dehradun. I am dedicated law student who learn through analysing. My basic interest is in field of contract law and constitutional law as no law in land is above the constitution. I love to do research on facts behind religious myth. I believe in intellectual work greatly inspired by Chanakya. At my free time, I like to spent my knowledge as it helps me to memorize and also motivate others. Not the least but I give best of my skill as I know a man is great by his deeds.