For two decades, anticipatory bail practice lived with an uncomfortable question: once granted, how long does the protection last? One line of authority treated pre-arrest bail as a short bridge to regular bail; another treated it as enduring. In Sushila Aggarwal v. State (NCT of Delhi), decided on 29 January 2020, a Constitution Bench of the Supreme Court resolved the conflict: the normal rule is that anticipatory bail is not limited in time, and it does not automatically end when the accused is summoned or when the chargesheet is filed. The ruling remains the foundation of practice under Section 482 BNSS, the successor to Section 438 CrPC.
The two questions referred
The reference to the Constitution Bench posed two questions. First, should the protection under Section 438 CrPC be limited to a fixed period, so as to enable the accused to surrender and seek regular bail? Second, should the life of an anticipatory bail order end at the time and stage when the accused is summoned by the court? Earlier decisions had pulled in opposite directions — one line insisting on time-bound protection, another holding that the protection could not be curtailed at all.
The answers
Conditions follow the stage, not a template
The bench also addressed conditions. An anticipatory bail order may carry conditions appropriate to the stage at which it is sought — before the FIR, during investigation, or after the chargesheet — including the familiar restraints on leaving the country, tampering with evidence, or contacting witnesses. What the judgment discourages is the mechanical imposition of limits: each restriction must be a considered response to the facts, and the default position is protection co-extensive with the proceedings.
What this means in practice under the BNSS
Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 carries the anticipatory bail jurisdiction forward. Its text, like the former Section 438, contains no expiry clause, and the Sushila Aggarwal principles govern its application. Practically, three consequences follow for Delhi practice.
- Read the order first. The duration question is answered by the order itself. An unqualified order endures; a limited order means a regular bail application must be calendared well before the limit runs out.
- Appearance is not surrender into custody. An accused protected by anticipatory bail appears on summons and furnishes bonds as directed; the protection continues, and no fresh application is needed absent a limitation or cancellation.
- Cancellation is the prosecution's remedy. If circumstances change — breach of conditions, interference with witnesses — the State's route is an application to cancel, not an assertion that the order has lapsed by efflux of time.
A note on drafting prayers
Applications under Section 482 BNSS should pray for protection in terms that track the judgment: release on bail in the event of arrest, to enure until the conclusion of the trial, with conditions as the court deems fit. Where the investigating agency presses for a time-limited order, the Sushila Aggarwal default supplies the answer — limitation requires special circumstances recorded by the court, not the agency's preference.
Note: This article discusses a reported Constitution Bench judgment for general information. Distinct statutory bars — such as those in certain special enactments — govern the availability of anticipatory bail in specific classes of cases and are addressed in a separate explainer on this site.
Frequently Asked Questions
Does anticipatory bail end when the chargesheet is filed?
Not automatically. The Constitution Bench held that nothing in the provision makes pre-arrest bail time-bound or terminable at the summons or chargesheet stage. Unless the order granting it was itself limited, or it is cancelled on application, the protection ordinarily continues through the investigation and the trial.
Can a court still limit anticipatory bail to a fixed period?
Yes. The normal rule is not to limit, but the bench preserved the discretion: in special or peculiar circumstances a court may restrict the order in time or direct the accused to seek regular bail within a stated period. Any such limitation must emerge from the order itself; it is not implied.
Must the accused apply for regular bail after taking anticipatory bail?
Ordinarily no. If the anticipatory bail order is unconditional as to duration, the accused appears before the court on summons and continues under the pre-arrest protection. An application for regular bail becomes necessary only if the anticipatory order was time-limited, is cancelled, or the court trying the case directs otherwise in accordance with law.
Does Sushila Aggarwal apply to Section 482 BNSS applications?
Yes in substance. Section 482 BNSS replaces Section 438 CrPC without re-introducing any time-limit, and the Constitution Bench's reasoning — that the text contains no temporal cut-off — applies with equal force. Delhi courts routinely apply the Sushila Aggarwal principles to BNSS-era anticipatory bail.