Supreme Court: In an appeal arising from an order of the Allahabad High Court rejecting the appellant’s second application for anticipatory bail where the protection granted by first anticipatory bail protection automatically came to an end as the same was limited only upto filing of the chargesheet, a Division Bench of J.B. Pardiwala* and K.V. Viswanathan,* JJ., set aside the impugned order and directed that in the event of arrest, the appellant be released on anticipatory bail on appropriate conditions. The Court held that
“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.”
Brief Facts
In the instant matter, the appellant was the brother-in-law of the deceased, who had been married to his brother about seven months prior to her death. The deceased died in mysterious circumstances at her matrimonial home. The decease’s mother lodged an FIR at Police Station Akbarpur, District Kanpur Dehat, for offences under Sections 80(2) and 85 of the Nyaya Sanhita, 2023 (BNS) and Sections 3 and 4 of the Dowry Prohibition Act.
Apprehending arrest, the appellant filed an anticipatory bail application before the High Court. The High Court granted anticipatory bail but restricted its operation “till the filing of the police charge-sheet.” After the charge-sheet was filed, the protection automatically came to an end. The appellant then filed a fresh anticipatory bail application, which was rejected without any substantial change in circumstances.
Moot Points
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Whether an order granting anticipatory bail can be limited in duration up to the filing of the charge-sheet as a matter of course?
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Whether filing of the charge-sheet, taking cognizance, or issuance of summons automatically extinguishes the protection granted under Section 438?
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What is the correct legal position when new, graver non-bailable offences are added after an accused has already been granted bail?
Court’s Analysis
The Court held that once a Court, after considering the nature of allegations, the role of the accused and the circumstances of the case, exercises its discretion in favour of the accused and granted anticipatory bail, there was no good reason for the Court to restrict the same upto the stage of filing of the chargesheet.
The Court relied on Bharat Chaudhary v. State of Bihar, (2003) 8 SCC 77, where it was held that there is no restriction in Section 438 CrPC to grant anticipatory bail even when charge sheet has been filed and cognizance is taken and Shri Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565, where it was held that the anticipatory bail can be granted at any time as long as the applicant has not been arrested.
The Court further relied on Sushila Aggarwal v. State (NCT of Delhi), (2020) 5 SCC 1, where it was held that “the protection granted under Section 438 should not invariably be limited to a fixed period; it should enure in favour of the accused without any restriction on time… 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.” It further noted that the Supreme Court in Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694, cautioned that anticipatory bail should not hinge on procedural milestones.
The Court held that once anticipatory bail is granted, it ordinarily continues without fixed expiry and filing of a charge-sheet, taking of cognizance, or issuance of summons does not terminate the protection unless special reasons are recorded.
The Court further asserted that concerns regarding non-cooperation, tampering with evidence and absconding, can be addressed by imposing conditions or by cancellation under the BNSS if circumstances change. The Court further added that expiry clauses inserted at the inception are unsustainable in law.
On addition of new cognizable and non-bailable offences, more particularly of a serious nature, after filing of the chargesheet, the Court reiterated the stand taken in Pradeep Ram v. State of Jharkhand, (2019) 17 SCC 326, that the accused becomes disentitled to the liberty earlier granted to him in relation to the offences for which the FIR came to be registered. The court must apply its mind afresh as to whether the accused is entitled to bail to the changed circumstances.
The Court clarified the correct approach is that —
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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.
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The investigating agency can seek order from the court under Sections 437(5) or 439(2) CrPC respectively for arrest of the accused and his custody.
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The Court, in exercise of its power under Sections 437(5) or 439(2) CrPC respectively, can cancel accused’s bail and direct for hi custody on addition of graver and non-cognizable offences.
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In a case where an accused has already been granted bail, the investigating authority on addition of an offence(s) may not proceed to arrest the accused, but only after obtaining an order to arrest from the Court which had granted the bail.
Court’s Decision
In the light of facts and circumstances of the case and authorities cited, the Court set aside the impugned order of the High Court. It was directed that in the event of arrest, the appellant shall be released on anticipatory bail subject to conditions and after release, he shall appear before the trial court and furnish bail bonds.
The Court further directed that the present judgment was to be placed before the Chief Justice of the Allahabad High Court for circulation.
[Sumit v. State of U.P., 2026 SCC OnLine SC 186, Decided on 09-02-2026]
*Judgment by Justice J.B. Pardiwala
*Judgment by Justice K.V. Viswanathan
Advocates who appeared in this case :
Mr. Shiv Sagar Tiwari, AOR, Mr. Varinder Kumar Sharma, Adv., Mr. Mata Prasad Singh, Adv., Mr. R.D. Rathore, Adv., Mr. Vinay Rajput, Adv., Ms. Ashiya Bano, Adv., Ms. Aakansha Tiwari, Adv., Ms. Shweta Bhadauria, Adv., Mr. Yugal Kishor Prasad, Adv., Mr. Bikash Chandra, Adv., Mr. Bishan Dass, Adv., Ms. Gitesh Kumari, Adv., Mr. Rajesh Ranjan Kumar, Adv., Mr. Rajesh Kumar, Adv., Counsel for the Appellant
Mr. Ankit Goel, AOR, Mr. Mayank Tiwari, Adv., Counsel for the Respondents