The grant of anticipatory bail should not be subject to time constraints, says Supreme Court

Approach of Art.136 Cannot Be Adopted While Deciding Petitions by The High Court Under Art.227: SC

When a person is in a position that he committed an act which is a non-bailable offence, which he can administer in the Sessions Court or High Court, an injunction shall be made from the Court for such arrest and to release the convict. While giving such commands, the Court will persuade that the person is following guidelines by which that person will make himself accessible for an inquiry by the Police officer whenever it is required for the cause. Secondly, there shall no inducement from the person to another person from confessing facts in the Court. Furthermore, the person will not be permitted to flee his or her country without taking previous permission from the Court as per the Section 438 of Code of Criminal Procedure, 1973 which asserts regulations to get bail by a person, who is apprehending arrest.

In 1980, The Supreme Court of India formed a Constitutional Bench to decide in case of Shri Gurbaksh Singh Sibbia and others v. The State of Punjab, it was held that the normal rule should be not to limit the operation of the order for grant of anticipatory bail. This precedent was followed in various cases.

Nevertheless, in 1996, a three-judge bench of the Supreme Court took a diverse outlook in the case of Salauddin Abdul samad Shaikh vs. The state of Maharashtra. The Court mentioned that it is inevitable that such an anticipatory bail application should be of a bounded term and frequently on the expiry of a span or elongated continuation the Court, the imparting of anticipatory bail should bequeath over to a regular Court to deal amidst the subject on an enjoyment of evidence laid before it following the probe which should be made to advance or the charge-sheet is submitted.

The bench stated about the requirements which are present in the Code of Criminal Procedure to seek bail, and anticipatory bail are different due to orders passed. The normal bail is granted after arrest whereas the anticipatory bail is delivered to a person before the arrest. Nevertheless, the question about granting the anticipatory bail should be for a definite period referred to a Constitutional Bench comprising Justice Kurian Joseph, Mohan M Shantanagoudar and Navin Sinha. The Constitution Bench of larger bench held, “Parliament has not thought it appropriate to curtail the rights of citizens. It will be dangerous to restrict such power of arrest” and they laid down propositions for the sake of clarity on the issue. The Conditions which were stated are Nature of the crime, granting of bail based on circumstances and discretion. The order of anticipatory bail will not be a blanket for the accused. Whereas, the Judgment made by the Bench should be considered as significant as they held that the grant of anticipatory bail should not subject to time constraints. 


  • The Judgment was given by the bench of five judges.
  • The Anticipatory bail can be found in the Section 438 of Code of Criminal Procedure, 1973.
  • The Three Judges Bench referred the issue to larger bench due to ambiguity in opinions.
  • Previously, there was inconsistency in the law for giving anticipatory bail to a person.
  • The Court opined that they are open to impose conditions.

Edited by J. Madonna Jephi

Approved & Published – Sakshi Raje