arnesh kumar guidelines

Supreme Court: In an appeal against the order passed by Jharkhand High Court, wherein the Court has denied anticipatory bail to the appellant/husband and directed him to surrender before the Court and seek regular bail, the division bench of S. Ravindra Bhat and Aravind Kumar while setting aside the impugned order, directed all the courts to strictly follow the law laid down in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 469 and further reiterated the directions contained thereunder. Further, it directed the High Court to frame these directions in the form of notifications and guidelines to be followed by the Sessions Courts and all other Criminal Courts dealing with various offences.

The Bench also directed the Director General of Police in all States to ensure that strict instructions in terms of these directions are issued. Further, it also directed the High Courts and the DGP's of all States to ensure that such guidelines and Directives/Departmental Circulars are issued for guidance of all lower courts and police authorities in each State within eight weeks from the date of this judgment.


The husband and the respondent/wife were married on 5-11-2020. The husband alleges that the wife was not happy, and her father used to interfere and pressurize him and his family. This led to complaints lodged against the wife's family for threatening the husband's family. It is alleged that on in 2022, without complying with the directions of Five Judge Bench in Lalita Kumari v. Govt. of U.P., (2008) 7 SCC 164, the police registered the First Information Report (FIR) against the husband and his brother and others, complaining of commission of offences under Section 498A, 323, 504, 506 of the Penal Code, 1860 (IPC) and Section 3 and 4 of the Dowry Prohibition Act.

The husband apprehended arrest and applied for anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973 (CrPC) before the Sessions Judge, but the application was dismissed on 28-06-2022. The husband then approached the Jharkhand High Court seeking anticipatory bail. All this while, the husband cooperated with the investigation, and after its completion, a charge sheet was filed before the Sessions Judge.


The husband contended that importance has been placed by the Constitution on the value of personal liberty, the necessity for arrest before filing of the charge sheet occurs when the accused's custodial investigation or interrogation is essential or in certain cases involving serious offences where the accused's possibility of influencing witnesses cannot be ruled out. He further contended that an arrest cannot be made in every case and emphasized that the distinction between the existence of the power to arrest and the justification of exercising it must always be kept in mind. Further, the procedural requirements of Section 41-A of the CrPC must always be followed in this regard.

The State submitted that the mere fact that a charge sheet is filed would not per se entitle an accused to the grant of anticipatory bail, which always remains discretionary.


The Court said that it has been ruled, in a long line of cases that ordinarily bail ought to be granted and that in serious cases involving allegations relating to offences carrying long sentences or other special offences, the court should be circumspect and careful in exercising discretion. The paramount considerations in cases where bail or anticipatory bail is claimed are:

  • the nature and gravity of the offence,

  • the propensity or ability of the accused to influence evidence during investigation or interfere with the trial process by threatening or trying to influence the witnesses

  • the likelihood of the accused fleeing from justice and other such considerations

The Bench said that during the trial, the court is always in control of the proceedings, and it is open for it to impose any condition which it deems necessary to ensure the accused's presence and participation in the trial. The court must, in every case, be guided by these overarching principles.

The Court said that the court has in previous cases issued valuable directions to be followed by the police authorities and the courts, in all cases where the question of grant of bail arises.

The Bench opined that that there are no startling features or elements that stand out or any exceptional fact disentitling the husband to the grant of anticipatory bail. What is important is not that the matrimonial relationship soured almost before the couple could even settle down but whether allegations levelled against the husband are true or partly true at this stage.

Further, the Court noted that at the time when the anticipatory bail was pending, there was no protection afforded to the husband through any interim order and on 08-08-2022 the High Court granted an order effectively directing the police not to arrest him during the pendency of his application under Section 438 CrPC.

The Court further noted that the investigation was completed, and the charge sheet was filed after 08-08-2022, and cognizance was taken on 01-10-2022 by the Sessions Judge, and said that these factors were of importance, and though the High Court has noticed the factors, but it has interpreted them in an entirely different light.

The Court said that the husband has cooperated with the investigation both before 08-08-2022, when no protection was granted to him and after 08-08-2022, when he enjoyed protection till the filing of the chargesheet and the cognizance thereof on 01-10-2022. Thus, once the chargesheet was filed and there was no impediment, at least on the part of the accused, the High 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 High court did not do so, but mechanically rejected and directed the husband to surrender and seek regular bail before the Trial Court.

Therefore, the Court opined that the High Court fell into error in adopting such a casual approach and set aside the impugned order. Further, granted bail to the husband.

[MD. Asfak Alam v The State of Jharkhand, 2023 SCC OnLine SC 892, decided on 31-07-2023]

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