• Admin


BY: Shifa Qureshi,

Aligarh Muslim University, Uttar Pradesh

Honorable Court: Supreme Court of India

Petitioner: Gurbaksh Singh Sibbia Etc.

Respondents: State Of Punjab

Bench: Y.V. Chandrachud. (CJ)

P.N. Bhagwati, N.L. Untwalia, R.S. Pathak, O. Chinnappa Reddy (J)

Date of Judgment: 9 April 1980

Equivalent Citation: 1980 AIR 1632, 1980 SCR (3) 383


The Minister of Irrigation and Power in the Government of Punjab under the Congress regime, Gurbaksh Singh Sibbia(the appellant) and a couple of others were facing serious accusations of corruption and undue use of power. Thus, he apprehended arrest along with other appellants. Subsequently, they applied for anticipatory bail under Section 438 of the CrPC, in the HC of Punjab and Haryana and prayed to direct the appellants to be released on bail in the event of arrest based on the above-mentioned charges. HC dismissed the appeal. Further on Special Leave to Appeal (SLP), they filed in the Supreme Court.


Section 437 Of CrPC lays out certain basic criteria for the court while exercising its judicial discretion for grant or refusal of the bail-in case of non-bailable offences, some of the criteria are the nature of the offence, past criminal record, the probability of guilt, etc. and carves out exceptions of minors, women, etc.

Section 438 of CrPC lays down the concept of Anticipatory Bail where the accused may seek bail if they apprehend arrest, to prevent even the otherwise brief incarceration. It must be duly noted that the grant or refusal of anticipatory bail is also a matter of discretion for the court.

The distinction between an ordinary order of bail and an order of anticipatory bail is that whereas the former is granted after arrest means release from the custody of the police, the latter is granted in anticipation of arrest and is therefore effective at the very moment of arrest.

The reason behind anticipatory bail is that individual liberty must not be put in jeopardy on the instance of an irresponsible person.

Section 438 of CrPC lays down:

1. When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the HC/Session Court for a direction and that court, if it thinks fit, direct that in the event of such arrest, be released on bail.

2. The court makes direction subject to the condition-

i. The person shall make himself available for police interrogations as and when required

ii. The shall not directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court/police officer.

iii. The person, without the court’s permission, shall not leave India.

3. If such persons are thereafter arrested without a warrant on such accusation, is prepared either at the time of arrest or at any time while in the custody of police to give bail, he shall be released.

The High Court of Punjab and Haryana in this case dismissing the Anticipatory Bail appeal said the contention made by the appellant is illogical and aggravating. The appellant contended that they “were men of substance and position who are likely to abscond and would be prepared willingly to face trial” and the court while giving judgment stated “The larger interest of the public and State demand that in serious cases like economic offences involving blatant corruption at the higher rungs of the executive and political power, the discretion under Section 438 of the Code should not be exercised”


1. Balchand Jain v. State of Madhya Pradesh [AIR 1977 SC 366]

2. State of U.P. v. Deoman Upadhyaya [AIR 1960 SC 1125]

3. Gudikanti Narasimhulu v. Public Prosecutor [AIR 1978 SC 429]

4. The State v. Captain Jagjit Singh [AIR 1962 SC 253]

5. Maneka Gandhi v. Union of India [ AIR 1978 SC 597]

6. Gurcharan Singh v. State (Delhi Administration) [AIR 1978 SC 179]


1. Does “reason to believe” mentioned in Section 438(1) of CrPC include ‘mere fear’?

2. Does filing Of FIR or Charge-sheet is necessary for filing for an Anticipatory bail under Section 438?

3. What is the life or currency of an anticipatory bail once the same has been granted by the competent court?

4. What are the necessary conditions for the granting of anticipatory bail?

5. Can a person be granted an anticipatory bail if the arrest has been done?

6. Can the anticipatory order be limited with conditions or is boundless?


· The verdict was delivered by CJ Y.V Chandrachud, and the appeal of Mr. Gurbaksh Singh Sibbia was allowed in part.

· Section 438(1) talks about ‘reason to believe’, which means that the ground due to which the appellant believes he may be arrested, must be founded on reasonable ground. Mere fear is not belief.

· Anticipatory bail is a device to secure the individual’s liberty; it is neither a passport to the commission of crimes nor a shield against any or all kinds of accusations.

· The High Court or Session court while granting anticipatory bail may impose conditions [Section 438(2)] with a view to strike a balance between the individual’s right to personal freedom and the investigational right of the police.

· Anticipatory bail can be granted even after the FIR has been filed, so long as the appellant has not been arrested

· No anticipatory bail may be granted after the arrest. He will have to go through regular bail after arrest under Section 437 or Section 439 of CrPC.

· Anticipatory bail will be effective till the conclusion of the trial.

· The court making an order of such bail is entitled upon appropriate consideration to cancel or recall the same anticipatory bail.

· Considerations to be kept in mind i.e. nature and seriousness of the proposed charges.


The five important principles mentioned in the judgment are mostly “Conditions to be Satisfied” to grant anticipatory bail.

1. “Reason to Believe” does not include mere fear.

Section 438(1) contains the term “Reason to Believe”, this case studied and cleared much confusion which is used as a reference till date. The applicant while making an appeal for anticipatory bail must prove that he has ‘reason to believe’ that he could be arrested soon, and this belief should be based on reasonable grounds. Mere fear of being arrested is not a belief. The grounds on which such belief is formed by the appellant must be capable of being examined by the court because it’s the only way the court can determine whether the appellant has reason to believe that he may be so arrested. Hence, vague and general allegations can’t invoke Section 438(1).

2. High Court or Sessions court must apply their minds; cannot leave the question for magistrate concerned under section 437

If an application for anticipatory bail is made to the High Court or the Court or the Court of Session it must apply its mind to the question and decide whether a case has been made out for grant-in such relief. As and when the occasion arises the question cannot be left for the decision of the Magistrate concerned under Section 437 of the CrPC. Such a course will defeat the very object of Section 438.

3. The filing Of FIR or Charge-sheet is necessary for filing for an Anticipatory bail under Section 438?

The filing of a First Information Report is not a condition precedent to the exercise of the power under Section 438. The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an F. I. R. is not yet filed.

4. Anticipatory bail can be granted even after in F. I. R. is filed, so long as the applicant has not been arrested

5. The provisions of Section 438 can’t be invoked after the arrest of the accused.

The provisions of S. 438 cannot be invoked after the arrest of the accused. The grant of “anticipatory bail” to an accused who is under arrest involves a contradiction in terms, in so far as the offences for which he is arrested, are concerned.

If the arrest is done then in such a case the accused must seek his remedy under Section 437 or Section 439 of CrPC, if he wants to be released on bail in respect of the offence or offences for which he is arrested.


1. The distinction between an ordinary order of bail and order of anticipatory bail was given.

The distinction between an ordinary order of bail and an order of anticipatory bail was explained in the judgment, that whereas the former is granted after arrest and therefore means release from the custody of the police, the latter is granted in anticipation of arrest and is therefore effective at the very moment of arrest. [Para 7]

2. The extent of granting powers of HC or Session Courts to impose conditions on anticipatory bail was detailed in-depth.

The Court while granting anticipatory bail, has the power to impose conditions. The amplitude of judicial discretion which is given to the High Court and the Session Court, to impose such conditions as they may think fit while granting anticipatory bail should not be cut down by reading into the statute conditions which are not to be found therein. The High Court and the Court of Session to whom the application for anticipatory bail is made ought to be left free in the exercise of their judicial discretion to grant bail if they consider it fit so to do on the particular facts and circumstances of the case and on such conditions as the case may warrant. Similarly, they must be left free to refuse bail if the circumstances of the case so warrant, on considerations similar to those mentioned in S. 437 or which are generally considered to be relevant under S. 439. [Para 13]

3. A ‘Blanket Order’ of anticipatory bail should not generally be passed.

The Sibbia judgment made it clear that there cannot be a “blanket order” granting anticipatory bail. In other words, there cannot be an order directing that the applicant shall be released on bail “whenever arrested for whatever offence whatsoever”. This would lead to gross abuse of the provision.

It is necessary to see that eventualities are arising in every case and each of them being different and therefore are required to be dealt with accordingly on the basis of facts and circumstances of each case. It was also stated that while granting the anticipatory bail, the right of investigating agency to seek custodial interrogation can’ t be hampered mechanically.

A blanket order of anticipatory bail is bound to cause serious interference with both the right and the duty of the police in the matter of investigation because, regardless of what kind of offence is alleged to have been committed by the applicant and when, an order of bail which comprehends allegedly unlawful activity of any description whatsoever, will prevent the police from arresting the applicant even if he commits, say, a murder in the presence of the public.......Therefore, the court which grants anticipatory bail must take care to specify the offence or offences in respect of which alone the order will be effective. The power should not be exercised in a vacuum. [Para 37]

4. If an order of anticipatory bail can be passed without notice to the public prosecutor.

An order of bail can be passed under S. 438 without notice to the public prosecutor. But notice should issue to the public prosecutor or the Government Advocate forthwith and the question of bail should be re-examined in the light of the respective contentions of the parties. The ad-interim order too must conform to the requirements of the section and suitable conditions should be imposed on the applicant even at that stage. [Para 38]

5. Can an order passed under Section 438(1) be limited in point of time?

Operation of an order passed under S. 438 (1) should not necessarily be limited in point of time. 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 F. I. R. 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 F.I.R. 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. [Para 38]


Gurbaksh Singh Sibbia's case made it made clear that Section 438 of the CrPC is a procedural provision with the personal liberty of the individual. The individual is entitled to the benefit of the presumption of innocence since he’s not convicted of the offence for which he seeks bail, on the date of his application for anticipatory bail. It was also held that the Section was enacted to protect those people who are implicated by their rivals in false cases to disgrace them or for other purposes by detaining them in jail. Further, it emphasized that the bail given under Section 438 is a way to secure the individual's liberty but is not a passport for the commission of crimes and is neither a shield against any kinds of accusations.

Subsequently, we can infer that the court's discretion cannot be limited in case of anticipatory bail matters just because the crime is punishable with death or imprisonment or involves possible blatant corruption at the higher level of power.

Though the rules and provisions laid down, in this case, are necessary as this provision has spared several citizens from the agony and humiliation of arrest and served to protect individual rights, but there are contentions from legal area and police that the provision of anticipatory bail hampers their ability to deal with habitual or dangerous offenders.

2,216 views0 comments

Recent Posts

See All