For decades, two questions unsettled anticipatory bail practice: must the protection be confined to a fixed period, and does it die automatically once the investigation ends and the court takes cognizance? The Constitution Bench answered both in Sushila Aggarwal v. State (NCT of Delhi) (29 January 2020). The normal rule is that anticipatory bail is not limited in time, and it does not automatically terminate on the filing of the chargesheet or issuance of summons — though the court granting it retains discretion to impose conditions, including temporal ones, where the facts warrant. With Section 438 CrPC now re-enacted as Section 482 of the BNSS, the ruling remains the operative framework in Delhi's courts. This explainer unpacks the holdings and their practical consequences.
The two questions referred
The reference to the Constitution Bench arose from conflicting lines of authority. One line, tracing to the expansive view in Gurbaksh Singh Sibbia (1980), treated anticipatory bail as ordinarily unconditioned by time. Another line insisted the protection was a short bridge — an interim shield that should end when the investigation matured, forcing the accused to seek regular bail. The two questions framed were: (1) whether the protection should invariably be limited to a fixed period enabling the person to surrender and seek regular bail, and (2) whether the life of an anticipatory bail order should end when the accused is summoned by the court.
What the Bench held
Why the ruling matters in daily practice
Before 2020, accused persons protected by anticipatory bail faced a recurring ambush: at the chargesheet stage, prosecutors argued the protection had lapsed, and trial courts sometimes insisted on surrender and fresh bail applications — reintroducing precisely the custody risk the original order was designed to remove. Sushila Aggarwal closed that gap. The practical consequences run in both directions:
The limits of the protection
Three boundaries survive intact. First, anticipatory bail remains an extraordinary discretion — Sushila Aggarwal governs the duration of protection once granted; it does not soften the threshold for granting it. Second, the order binds only in the case for which it is granted; fresh FIRs require fresh protection. Third, the protection is behaviour-dependent: cooperation with the investigation is both a standard condition and the practical price of continuation, and its breach converts a durable shield into a short-lived one.
Statutory carve-outs restricting anticipatory bail in particular offences operate independently of this framework. This article summarises reported precedent for general information; the scope of any individual protection order depends on its terms and the facts of the case.
Frequently Asked Questions
Does anticipatory bail expire after a fixed time?
Not as a rule. Sushila Aggarwal holds that the normal rule is not to limit the order's operation in time. A court may impose a time limit or other special conditions in the circumstances of a particular case, but an unconditional order continues to protect the applicant.
Does anticipatory bail end when the chargesheet is filed?
No — not automatically. The Constitution Bench rejected the view that the protection lapses at cognizance or summoning. The order can continue until the end of the trial, unless it is cancelled or varied by the court on proper grounds.
Can anticipatory bail still be cancelled?
Yes. The protection is always defeasible: on misuse of liberty, non-cooperation with the investigation, or other supervening grounds, the prosecution can seek cancellation, and the court that granted the order — or a superior court — can recall it.
How does this apply under the BNSS?
The anticipatory bail power now resides in Section 482 BNSS, in materially similar terms to Section 438 CrPC as interpreted. The Sushila Aggarwal framework — no automatic time limit, no automatic lapse at chargesheet, conditions discretionary — continues to govern applications under the new code.