CITATION: 2015 SCC OnLine SC 771


The appellant and the complainant were neighbours, complainant filed a complaint claiming that the appellant had harassed, threatened and blackmailed her. The FIR was registered under section 506 (2) of Indian Penal Code. After which the Metropolitan Magistrate granted the anticipatory bail to the appellant. Later a request was made to add an additional charge of Rape against the accused/ appellant under section 376 Indian Penal Code.

With respect to the addition of charge, the Metropolitan Magistrate stated that the application of addition of charge can only be considered after the chief examination of the complainant. Being disappointed by such order the complainant challenged it before the sessions judge, Ahmedabad. The sessions judge remanded the order again to the Metropolitan Magistrate stating that the application should be heard afresh after giving opportunity to both the parties.

In furtherance to the order of the sessions judge, the Metropolitan Magistrate ordered the police to initiate a special investigation under section 178 (8) of Code of Criminal Procedure. The order was challenged further and ultimately, the police had to file a revised charge sheet stating that a prima facie case was also under section 376 IPC. Further, during this period the appellant filed an application for grant of anticipatory bail in the sessions court which was later granted by the court.

After the anticipatory bail was granted, the complainant filed a criminal revision petition in the High Court, the High Court passed an order to cancel the anticipatory bail which was granted to the accused. The said order of cancelling the Anticipatory bail by the High Court is in question.


  1. Whether in the circumstances of the present case the court was entitled to grant anticipatory bail or not under section 438 CrPC.
  2. Whether the High Court was justified in cancelling the Anticipatory bail and whether the order of High Court is sustainable or not.

PROSECUTION:  State of Gujarat

DEFENCE: Bhadresh Bipinbhai Sheth


The Supreme Court stated that by refusing the anticipatory bail in respect of alleged incident which is 17 years and whose charge is framed in 2014 will serve no purpose in compelling the Appellant to go behind bars, as an under trial. Even after the completion of investigation no allegation or complaint was made stating that the accused or appellant would flee away in order to tamper the course of natural justice.

The appellant had also participated in the proceedings after the charged was framed under Section 506 (2) IPC. Further, there were no allegations that the appellant was influencing or threatening the witnesses at any point. Even when a much serious charge levelled against the Appellant then also it should not be the reason to deny anticipatory bail when the matter is examined keeping in view other factors.

Therefore, the Supreme Court in the said matter set aside the order of cancelling the Anticipatory Bail made by the High Court and uphold the order of the granting the Anticipatory Bail by the Additional Sessions Judge.


Considering the first issue, the FIR was registered based on the statement recorded in 2001 and a charge sheet was prepared there after forming a prima facie case only under section 506(2) IPC. Based on this charge sheet the Metropolitan Magistrate framed charge only under Section 506(2) IPC.

Almost after seven years of framing of the charge the complainant in 2008 objected for the first time to include an additional charge of Rape under Section 376 IPC. She filed the application for the same in 2010 stating that the statement which she gave to the Assistant Commissioner of Police (ACP) should be treated as her FIR.

In a matter like this, where allegations of rape pertains to a period almost two decades ago, and when no charge was framed under Section 376 IPC in the year 2001, and even the Prosecutrix did not take any steps for almost a decade and the charge under Section 376 IPC is added only in the year 2014, the Supreme Court observed that there was no reason that the Appellant should not be given the benefit of anticipatory bail. The inaction of the complainant is also a contributory factor.

Considering the second issue, the High Court has remarked that the complainant had to run a marathon for getting her Complaint registered as an FIR and more particularly for addition of charges under Section 376 of IPC. In lieu of the facts of the case, Supreme Court is of the view that the said observation of the High Court is not correct. The High Court has wrongly observed that it was the Appellant who was able to drag the matter for decade before the complaint was registered under relevant provisions. Therefore, the High Court of Gujarat has erred in its decision of cancelling the Appellant’s anticipatory bail.

In addition to these two issues, it is important to analyse whether Supreme Court should deal with matters like the one at hand, keeping in mind the large number of cases they had to deal with. A large part of the case at hand questions the authority to grant Anticipatory bail in situation where an additional charge is added after a charge sheet is prepared.

The fact that the complainant might file a false or frivolous complaint against the accused is also is question because initially the charge of Rape under Section 376 wasn’t added. The reason of filing the application of adding an additional charge after the charge sheet is prepared should also be justified enough before the eyes of Court. Therefore, it is always debatable whether Supreme Court should entertain cases related to grant of Anticipatory Bail.

Section 438 CrPc requires a liberal interpretation because as per the Constitutional Bench in this case stated that section 438 is conceptualized under Article 21 of the Indian Constitution which explicitly states about Right to Personal liberty of a person. The Right to personal liberty shouldn’t stand without any restrictions to it otherwise the concept of grant of bail, when to grant and when not to would never be questionable and the accused will move freely. Thus, the same be considered while interpreting section 438 of CrPC.

Also Read: The Provision of Bail under the Code of Criminal Procedure, 1973


We can see different interpretations while analysing the case of Bhadresh Bipinbhai Sheth vs State of Gujarat & Anr., initially the Sessions Court was correct in granting the anticipatory bail and the same was uphold by the Supreme Court.

In my opinion, the Supreme Court is justified in granting the Anticipatory Bail because we can’t ignore the fact that the Complainant took a very long period of time i.e., more than 7 years to file an application of addition of charge which created a delay in the further proceedings as the case was also remanded and the police had to carry out a special investigation under section 173(8).

Such delay also arises the objection that the Complainant might out of malice wants to add an additional charge in order to strengthen the case against the appellant but this eventually creates a problem for the Courts. It firstly, delays the process of grant of justice and secondly, increases the number of cases the Appellant Court has to deal with. In my opinion, the Court should grant Anticipatory Bail when there is no fear that the accused will abscond.

The other aspects which the Court should keep in mind while granting Anticipatory Bail includes charge formation, possibility or probability of the Applicant’s presence might not be secured and safe at the trail, fear of tampering of witnesses, interest of public or the State, presence or attendence of accused on the date of hearing etc. The grant or dismissal of Anticipatory Bail should depend upon on the facts and circumstances of the case.

Hence, the power vested in the hand of the Court under Section 438 CrPC should be handled with great caution and prudence as no straightjacket formula or specific guidelines can be provided for grant of refusal of Anticipatory Bail.

This article is written by Miss Srishti Ekka, pursuing BA. LLB (Hons.) from Symbiosis Law School, Pune



*Disclaimer: All the information mentioned above is as per the author’s knowledge. The owners of the website are not responsible for the same*

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