LIFE OF Anticipatory bail: SHALL IT CONTINUE post
charge sheet
In
a criminal case, if a F.I.R is registered and if person is accused of having
committed non bailable offence, the accused shall be entitled to seek anticipatory
bail, provided, the accused is able to satisfy the courts of law i.e Sessions
Court or the High Court, as the case may be, that, he is falsely implicated and
that he may not be involved in the alleged offence or the innocence could be
pleaded on variety of other aspects and if prima facie, the courts are
satisfied, then, the accused may be admitted to anticipatory bail. Such bails,
if and when granted could be conditional or even unconditional. In case, the alleged offence relates to the imprisonment
of Seven (7) years or less, then, in terms of Section 35(3) of Bhartiya Nyaya
Suraksha Sanhita (BNSS) 2023 , a notice
to the accused shall have to be issued and unless, there are reasons to be
recorded in writing, the accused persons shall, generally, not be arrested by
the Investigating Officer. In any case, with a view to secure itself, the
accused in the concerned F.I.R shall have to approach the courts for
anticipatory bail for any non bailable offence, that the accused may be alleged
to have committed.
However,
there are yet another interesting dimension in this regard i.e in case after
the granting of anticipatory bail, if charge sheet is filed and some other additional
and grave sections are added in the charge sheet, whether, the police may
arrest the accused due to the reasons as aforesaid, or whether, the permission
from the court shall have to be obtained. If so, whether, yet again, the
accused shall have to seek fresh bail from the court, in view of change in
circumstances i.e addition of new sections in the charge sheet. The discussion herein
shall revolve around that.
Recently,
the Supreme Court, in a matter, reported as 2026 INSC 145 and captioned as Sumit Vs State of U.P &
Anr (Criminal Appeal No. 830/2026) CRIMINAL APPEAL NO. 830 OF 2026 (Arising
out of SLP(Crl.)No.1536/2026) have comprehensively dealt with such issues.
BRIEF
FACTS
(i) To set out the facts of Sumit Vs State
of UP (Supra), in brief, the above appeal
arises from the order passed by the High Court of Allahabad dated 07.01.2026 in
Criminal Misc. Anticipatory Bail Application No.11038/2025, by which the
anticipatory bail application preferred by the appellant came to be rejected.
(ii) The First Information Report bearing
No.560/2024 came to be registered with the Akbarpur Police Station, District
Kanpur Dehat, State of Uttar Pradesh for the offence punishable under Section 80(2)/85
BNS and Sections 3 and 4 respectively of the Dowry Prohibition Act, 1961.
(iii)
The appellant before the Supreme Court
was the brother-in-law (Devar) of the deceased. The deceased was married to the
brother of the appellant, past 7 months and died, allegedly died under
mysterious circumstances at her matrimonial home. Accordingly, the FIR came to
be lodged by the mother of the deceased.
(iv) The appellant before the Supreme Court was apprehending
arrest and had earlier, preferred an application before the High Court seeking anticipatory
bail being application no.3992/2025. The
anticipatory bail was granted by the high court. The operative part of the order
[passed by the high court was as under:
“The
applicant will cooperate during the investigation and trial and will not misuse
the freedom of bail. In case of violation of the above conditions, the
Investigating Officer/Prosecutor shall issue notice to the applicant shall be
at liberty to file an appropriate application for cancellation of the
anticipatory ball granted”.
What
is evident from above is that the anticipatory bail was granted by the High Court
as prayed for but the same was limited only up to filing of the chargesheet.
Once the chargesheet was filed, the protection earlier granted came to an end
and in such circumstances, the appellant, once again prayed for anticipatory bail
by way of a fresh application which came to be rejected by the High Court.
According
to the Supreme Court, As regards the principles, regarding exercising
discretion of granting anticipatory bail, either, the Court may grant
anticipatory bail or may decline. However, once having exercised its discretion
in favour of the accused upon consideration of the overall matter, there may be
no good reason for the High Court to restrict it up to the stage of filing of
the chargesheet.
It
is also relevant in the context that in the earlier order passed by the High
Court, the High Court was pleased to observe that having regard to the nature
of the allegations, the role of the applicant and all the facts and
circumstances of the case, the accused could be said to have made out a case
for grant of anticipatory bail. If that was so, the High Court could have indicated,
while, declining to grant anticipatory bail, as to what was so particular or
what was so gross, that, the High Court thought fit not to grant anticipatory bail,
subsequently after filing of charge sheet.
POSITION OF LAW
(i) In Bharat Chaudhary and Anr. vs.
State of Bihar and Anr. reported in (2003)8 SCC 77, the Supreme Court has
held that there is no restriction in Section 438 Cr.P.C. to grant anticipatory
bail even when charge sheet has been filed and cognizance is taken. The
relevant part of the said decision reads as under:
“7.
From the perusal of this part of Section 438 of CrPC, we find no restriction in
regard to exercise of this power in a suitable case either by the Court of Session,
High Court or this Court even when cognizance is taken or a charge-sheet is
filed. The object of Section 438 is to prevent undue harassment of the accused
persons by pre-trial arrest and detention. The fact, that a court has either
taken cognizance of the complaint or the investigating agency has filed a charge-sheet,
would not by itself, in our opinion, prevent the courts concerned from granting
anticipatory bail in appropriate cases. The gravity of the offence is an
important factor to be taken into consideration while granting such
anticipatory bail so also the need for custodial interrogation, but these are
only factors that must be borne in mind by the courts concerned while entertaining
a petition for grant of anticipatory bail and the fact of taking cognizance or
filing of a chargesheet cannot by itself be construed as a prohibition against
the grant of anticipatory bail. In our opinion, the courts i.e. the Court of
Session, High Court or this Court has the necessary power vested in them to
grant anticipatory bail in non-bailable offences under Section 438 of CrPC even
when cognizance is taken or a charge-sheet is filed provided the facts of the
case require the court to do so.”...
(ii)
The Delhi High Court in a matter reported as 2004 SCC
OnLine Del 53, dealt with
somewhat similar question, as to, whether Section 170 Cr.P.C prevents the Trial
Court from taking a charge-sheet on record, unless the accused is taken into
custody. The Delhi High Court observed as under:
“15.
Word “custody” appearing in this section does not contemplate either police or
judicial custody. It merely connotes the presentation of accused by the investigating
officer before the Court at the time of filing of the charge-sheet whereafter
the role of the Court starts. Had it not been so the investigating officer
would not have been vested with powers to release a person on bail in a
bailable offence after finding that there was sufficient evidence to put the
accused on trial and it would have been obligatory upon him to produce such an
accused in custody before the Magistrate for being released on bail by the
Court”.
16. In case the
police/investigating officer thinks it unnecessary to present the accused in
custody for the reason that the accused would neither abscond nor would disobey
the summons as he has been cooperating in investigation and investigation can
be completed without arresting him, the IO is not obliged to produce such an accused
in custody”.
(iii) The above view was reiterated in Ravindra
Saxena vs. State of Rajasthan, reported in (2010) 1 SCC 684. In the
said case the High Court had rejected the application seeking anticipatory bail
on the ground that the chargesheet had been filed, such approach was held to be
erroneous. The Court observed that a Constitution Bench in Shri Gurbaksh
Singh Sibbia and Others vs. State of Punjab, reported in (1980) 2
SCC 565, clearly held that the anticipatory bail can be granted at any time
so long as the applicant has not been arrested:
“7.
We are of the considered opinion that the approach adopted by the High Court is
wholly erroneous. The application for anticipatory bail has been rejected without
considering the case of the appellant solely on the ground that the challan has
now been presented”.
8.
We may notice here that the provision with regard to the grant of anticipatory
bail was introduced on the recommendations of the Law Commission of India in
its Forty-first Report dated 24-9- 1969. The recommendations were considered by
this Court in a Constitution Bench decision in Gurbaksh Singh Sibbia v. State
of Punjab [(1980) 2 SCC 565 : 1980 SCC (Cri) 465].
Upon
consideration of the entire issue, the Supreme Court laid down certain salutary
principles to be followed in exercise of the power under Section 438 CrPC by
the Sessions Court and the High Court. It is clearly held that the anticipatory
bail can be granted at any time so long as the applicant has not been arrested.
When the application is made to the High Court or the Court of Session it must
apply its own mind on the question and decide when the case is made out for
granting such relief.”
(iv)
In Sushila Aggarwal & Ors. vs.
State (NCT of Delhi) & Anr reported in (2020) 5 SCC 1, the following
questions were referred to the larger Bench of five judges:
i.
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?
ii.
Whether the life of an anticipatory
bail should end at the time and stage when the accused is summoned by the court?
The
Constitution Bench answered the reference as under:
Regarding
Question 1,
The
Supreme Court held that the protection granted to a person under Section 438
CrPC should not invariably be limited to a fixed period; it should enure in
favour of the accused without any restriction on time. Normal conditions under
Section 437(3) read with Section 438(2) should be imposed; if there are
specific facts or features in regard to any offence, it is open for the court
to impose any appropriate condition (including fixed nature of relief, or its
being tied to an event), etc.
Regarding
Question 2
It
is held that the life or duration of an anticipatory bail order does not end
normally at the time and stage when the accused is summoned by the court, or
when charges are framed, but can continue till the end of the trial. Again, if
there are any special or peculiar features necessitating the court to limit the
tenure of anticipatory bail, it is open for it to do so.”
The Supreme Court in Sumit
Vs State of U.P & Anr (Supra) has also referred to the following
observations made by the Constitution Bench in paras 77.3 and 77.4 respectively
of Sushila Aggarwal (supra) are also relevant which reads as under:
“77.3.
In these circumstances, the mere fact that an accused is given relief under
Section 438 at one stage, per se does not mean that upon the filing of a
chargesheet, he is necessarily to surrender or/and apply for regular bail. The
analogy to “deemed bail” under Section 167(2) with anticipatory bail leads this
Court to conclude that the mere subsequent event of the filing of a
charge-sheet cannot compel the accused to surrender and seek regular bail. As a
matter of fact, interestingly, if indeed, if a charge-sheet is filed where the
accused is on anticipatory bail, the normal implication would be that there was
no occasion for the investigating agency or the police to require his custody,
because there would have been nothing in his behaviour requiring such a step. In
other words, an accused, who is granted anticipatory bail would continue to be
at liberty when the chargesheet is filed, the natural implication is that there
is no occasion for a direction by the court that he be arrested and further
that he had cooperated with the investigation.
77.4.
At the same time, however, at any time during the investigation were any
occasion to arise calling for intervention of the court for infraction of any
of the conditions imposed under Section 437(3) read with Section 438(2) or the
violation of any other condition imposed in the given facts of a case, recourse
can always be had under Section 439(2).”
According to the
Supreme Court there should not be a misconception that in every nonbailable and
cognizable offence the police is required to invariably arrest a person, even
if it is not essential for the purpose of investigation. Rather, the law
is otherwise. In normal and ordinary course, the police should always avoid
arresting a person and sending him to jail, if it is possible for the police to
complete the investigation without his arrest and if every kind of cooperation
is provided by the accused to the investigating officer in completing the investigation.
It is only in cases of utmost necessity, where the investigation cannot be
completed without arresting the person, for instance, a person may be required
for recovery of incriminating articles or weapon of offence or for eliciting
some information or clue as to his accomplices or any circumstantial evidence,
that his arrest may be necessary. Such an arrest may also be necessary if the
investigating officer concerned or officer in charge of the police station thinks
that presence of the accused will be difficult to procure because of grave and
serious nature of crime as the possibility of his absconding or disobeying the process
or fleeing from justice cannot be ruled out.
(v) The aforesaid
decision of the Delhi High Court received endorsement of the supreme Court
in Siddharth vs. State of Uttar Pradesh & Anr., reported in (2022) 1 SCC
676, wherein it was observed as under:
“9.
We are in agreement with the aforesaid view of the High Courts and would like
to give our imprimatur to the said judicial view. It has rightly been observed
on consideration of Section 170 CrPC that it does not impose an obligation on
the officer-in-charge to arrest each and every accused at the time of filing of
the charge-sheet. We have, in fact, come across cases where the accused has cooperated
with the investigation throughout and yet on the charge-sheet being filed nonbailable
warrants have been issued for his production premised on the requirement that
there is an obligation to arrest the accused and produce him before the court. We
are of the view that if the investigating officer does not believe that the
accused will abscond or disobey summons he/she is not required to be produced in
custody. The word “custody” appearing in Section 170 CrPC does not contemplate
either police or judicial custody but it merely connotes the presentation of
the accused by the investigating officer before the court while filing the
chargesheet”.
The Supreme Court has
consistently held, that personal liberty is an important aspect of the constitutional
mandate. The occasion to arrest an accused during investigation arises when custodial
investigation becomes necessary or it is a heinous crime or where there is a
possibility of influencing the witnesses or accused may abscond. Merely, because
an arrest can be made because it is lawful does not mandate that arrest must be
made. A distinction must be made between the existence of the power to arrest and
the justification for exercise of it [Joginder Kumar v. State of U.P., (1994) 4
SCC 260 : 1994 SCC (Cri) 1172] . If arrest is made routine, it can cause incalculable
harm to the reputation and self-esteem of a person. If the investigating
officer has no reason to believe that the accused will abscond or disobey
summons and has, in fact, throughout cooperated with the investigation we fail
to appreciate why there should be a compulsion on the officer to arrest the
accused.
In Sumit Vs State of
UP (Supra) in para 12 it is held as under:
“When
the appellant has joined the investigation, investigation has completed and he has
been roped in after seven years of registration of the FIR we can think of no
reason why at this stage he must be arrested before the chargesheet is taken on
record. We may note that the learned counsel for the appellant has already
stated before us that on summons being issued the appellant will put the
appearance before the trial court.”
(vi) The Supreme Court
in Satender Kumar Antil vs. CBI reported in (2022) 10 SCC 51 said in
clear terms that the mandate laid down in Siddharth (supra) should be
strictly complied with.
In Md. Asfak Alam
vs. State of Jharkhand and Another reported in 2023 SCC OnLine SC 892 under
a similar situation where the appellant therein had been granted interim protection
nby the High Court under Section 438 CrPC and the charge-sheet was filed before
the application seeking pre-arrest bail was finally heard, the High Court
rejected the pending anticipatory bail and directed the appellant to surrender
before the competent authority and seek regular bail. In this backdrop, it was
observed as under:
“14.
……What appears from the record is that the appellant cooperated with the
investigation both before 8-8-2022, when no protection was granted to him and after
8-8-2022, when he enjoyed protection till the filing of the charge-sheet and
the cognizance thereof on 1-10-2022. Thus, once the charge-sheet was filed and there
was no impediment, at least on the part of the accused, the court having regard
to the nature of the offences, the allegations and the maximum sentence of the
offences they were likely to carry, ought to have granted the bail as a matter
of course. However, the court did not do so but mechanically rejected and, virtually,
to rub salt in the wound directed the appellant to surrender and seek regular
bail before the trial court. Therefore, in the opinion of this Court, the High
Court fell into error in adopting such a casual approach. The impugned order of
rejecting the bail and directing the appellant, to surrender and later seek bail,
therefore, cannot stand, and is hereby set aside…...”
The
position of law is therefore, well settled:
(i)
once anticipatory bail is granted, it ordinarily continues without fixed
expiry. The filing of a charge-sheet, taking of cognizance, or issuance of
summons does not terminate protection unless special reasons are recorded. The Constitution
Bench in the case of Sushila Aggarwal (supra) held that duration is a matter
of judicial discretion and cannot be confined by arbitrary timelines. In the
case of Siddharam Satlingappa Mhetre vs. State of Maharashtra, reported
in (2011)1 SCC 694, this Court similarly cautioned that anticipatory
bail should not hinge on procedural milestones.
The
risk management can be taken care of by way of imposing conditions of
cooperation, attendance, and non-tampering, not by imposing time limits. Where
circumstances change, modification or cancellation may be sought under the
BNSS, 2023, but expiry clauses inserted at inception are unsustainable.
In Sumit Vs State of UP (Supra) it is
held as under:
27.
In such circumstances referred to above, the impugned order passed by the High
Court is set aside.
28.
We order that in the event of arrest of the appellant in connection with the
offence enumerated above, he shall be released on anticipatory bail subject to
the terms and conditions that the Investigating Officer deem fit to impose.
29.
Once the appellant is released by the Investigating Officer, he shall
thereafter appear before the Trial Court and furnish fresh bail bond.
The Supreme Court has thus concluded in the
following terms::
30.
Before we close this matter, we would like to clarify something important. Take
a case, wherein an accused has been released on bail, pending the
investigation, and later upon completion of the investigation, chargesheet is
filed with addition of new cognizable and non-bailable offences, then what would
be the position?
It is held in para 31
of Sumit Vs State of UP (Supra) as under:
31.
The aforesaid question was looked into and answered by this Court in Pradeep
Ram vs. State of Jharkhand and another reported in 2019 Crl. L.J. 3801, wherein
this Court after discussing various decisions, more particularly, the decision
in Prahlad Singh Bhati vs. NCT Delhi and another reported in (2001) 4 SCC 280
held that with the addition of a new cognizable and non bailable offence, more
particularly of a serious nature, the accused becomes disentitled to the
liberty earlier granted to him in relation to the offences for which the FIR
came to be registered.
32.
In such circumstances, the correct approach of the Court concerned should be to
apply its mind afresh as to whether the accused is entitled for grant of bail
in the changed circumstances.
33.
In Prahlad Singh Bhati (supra), the FIR initially was registered under Sections
306 and 498A of the IPC respectively. But, subsequently, the chargesheet showed
that the accused had committed offence under Sections 302 of the IPC. This
Court took the view that with the change of the nature of the offence, the accused
could be said to have become disentitled to the liberty granted to him in
relation to the offence for which the FIR was registered, more particularly, if
the offence is altered for an aggravated crime.
The Supreme Court in para
no. 34 had recorded the conclusion:
34.
In such circumstances referred to above, we arrive at following conclusions in
respect of a circumstance whereafter the grant of bail to an accused, further
cognizable and nonbailable offences are added:-
(i)
The accused can surrender and apply for bail for newly added cognizable and
non-bailable offences. In the event of refusal of bail, the accused can
certainly be arrested.
(ii)
The investigating agency can seek order from the court under Sections 437(5) or
439(2) of Cr.P.C. respectively for arrest of the accused and his custody.
(iii)
The Court, in exercise of its power under Sections 437(5) or 439(2) of Cr.P.C.
respectively, can direct for taking into custody the accused who has already
been granted bail after cancellation of his bail. The Court in exercise of its
power under Section 437(5) as well as Section 439(2) respectively can direct
the person who has already been granted bail to be arrested and commit him to
custody on addition of graver and non-cognizable offences which may not be
necessary always with order of cancelling of earlier bail.
(iv)
In a case where an accused has already been granted bail, the investigating
authority on addition of an offence or offences may not proceed to arrest the
accused, but for arresting the accused on such addition of offence or offences it
needs to obtain an order to arrest the accused from the Court which had granted
the bail.
From
the aforesaid discussion, the vista of anticipatory bail as regards its
continuity, post charge sheet and circumstances of that has been duly explained
including in the very recent judgment of Supreme Court in Sumit Vs State
of UP (Supra). The aforesaid judgment has recorded various judgments in
its historical perspective including that of the constitution bench judgment of
Supreme Court in Sushila Aggarwal (Supra).
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Anil
K Khaware
Founder & Senior Associate
Societylawandjustice.com
