Breaking: Should Anticipatory Bail Be Granted For Limited Period Of Time: Issue Referred To Constitution Bench [Read Order]

We are of the prima facie view that the Constitution Bench in Sibbia has not laid down the law that once an anticipatory bail, it is an anticipatory bail forever, the bench observed.

A three-judge bench of the Supreme Court has referred to a larger bench the following two questions in the matter of pre-arrest bail:

• Whether the protection granted to a person under Section 438 CrPC should be limited to a fixed period so as to enable the person to surrender before the trial court and seek regular bail.


• Whether the life of an anticipatory bail should end at the time and stage when the accused is summoned by the court.

The bench headed by Justice Kurian Joseph was considering this issue as it noted divergent views in earlier decisions as to whether an anticipatory bail should be for a limited period of time.

There are quite a number of judgments that place reliance on the constitution bench judgment in Shri Gurbaksh Singh Sibbia and others v. State of Punjab, to hold that anticipatory bail should not be for a limited period.

A three-judge bench in Salauddin Abdulsamad Shaikh v. State of Maharashtra, without referring to the constitution bench judgment, had observed that orders of anticipatory bail should be of a limited duration. There are a series of judgments of two-judge benches which follows this view.

The bench, also comprising Justice Mohan M Shantanagoudar and Justice Navin Sinha, noticing these decisions, observed: “We are of the prima facie view that the Constitution Bench in Sibbia (supra) has not laid down the law that once an anticipatory bail, it is an anticipatory bail forever.”

Quoting relevant paragraphs of the judgment, the bench observed: “In Sibbia (supra), this Court has briefly dealt with the question of duration of anticipatory bail. It seems to us that the discussion primarily pertained to grant of anticipatory bail at the pre-FIR stage (see paragraph 43 quoted below). It appears that there are indications in Sibbia (supra) that anticipatory bail may be for a limited period.”

These observations by the constitution bench in Sibbia are the genesis of the conflict of views reflected in later judgments of smaller benches. “Should the operation of an order passed under Section 438(1) be limited in point of time? Not necessarily. The court may, if there are reasons for doing so, limit the operation of the order to a short period until after the filing of an FIR in respect of the matter covered by the order. The applicant may in such cases be directed to obtain an order of bail under Section 437 or 439 of the Code within a reasonably short period after the filing of the FIR as aforesaid. But this need not be followed as an invariable rule. The normal rule should be not to limit the operation of the order in relation to a period of time,” it said.