New Delhi: The Supreme Court has held that once anticipatory bail is granted, it ordinarily continues without any fixed expiry, and the filing of a chargesheet, taking of cognizance, or issuance of summons does not terminate the protection unless special reasons are recorded. The Court held that High Courts cannot restrict the grant of anticipatory bail only up to the stage of completion of investigation and filing of the chargesheet.
A Bench comprising Justices J.B. Pardiwala and K.V. Viswanathan delivered the judgment while allowing an appeal filed by Sumit against the State of Uttar Pradesh, arising from an order passed by the Allahabad High Court rejecting his anticipatory bail application.
The case arose from an FIR registered for offences punishable under Sections 80(2) and 85 of the Bharatiya Nyaya Sanhita and Sections 3 and 4 of the Dowry Prohibition Act, 1961. The appellant is the brother-in-law (devar) of the deceased, who died under mysterious circumstances at her matrimonial home. The case was alleged to be one of dowry death.
The appellant had earlier preferred an application before the High Court seeking anticipatory bail. The High Court granted anticipatory bail but limited the protection only up to the filing of the police chargesheet. The order stated that in case of arrest, the applicant would be released on anticipatory bail “till the filing of the police chargesheet.”
Once the chargesheet was filed, the protection earlier granted came to an end, and the appellant once again prayed for anticipatory bail by way of a fresh application, which was rejected by the High Court.
The Supreme Court observed that it failed to understand the rationale behind restricting the grant of anticipatory bail up to the stage of completion of investigation and filing of the chargesheet. The Court held that either the Court may grant anticipatory bail or may decline to do so. However, once having exercised its discretion in favour of the accused upon consideration of the overall matter, there was no good reason for the High Court to restrict it up to the stage of filing of the chargesheet.
The Court noted that in the earlier order, the High Court had observed 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 had made out a case for grant of anticipatory bail. The Court held that if that be so, then the High Court should have indicated, while declining to grant anticipatory bail by way of the impugned order, what was so particular or gross as to justify refusal of protection.
The Court then examined the position of law on the issue by referring to Bharat Chaudhary v. State of Bihar, holding that there is no restriction under Section 438 Cr.P.C. on granting anticipatory bail even after the chargesheet has been filed and cognizance has been taken. The Court noted that the fact that a court has taken cognizance of the complaint or that the investigating agency has filed a chargesheet does not by itself prevent the courts concerned from granting anticipatory bail in appropriate cases.
The Court also referred to the Constitution Bench decision in Sushila Aggarwal v. State (NCT of Delhi), which held that the protection granted to a person under Section 438 Cr.P.C. should not invariably be limited to a fixed period and should ordinarily endure in favour of the accused without any restriction on time. The Constitution Bench further held that the life or duration of an anticipatory bail order does not normally end at the stage when the accused is summoned by the court or when charges are framed, and can continue till the end of the trial.
The Court, therefore, observed that the mere fact that an accused is given relief under Section 438 Cr.P.C. at one stage does not mean that upon the filing of a chargesheet, he must necessarily surrender or apply for regular bail. It noted that if a chargesheet is filed while the accused is on anticipatory bail, the natural implication is that there is no occasion for a direction that he be arrested, and that he has cooperated with the investigation.
The Court then held that the position of law is well settled: once anticipatory bail is granted, it ordinarily continues without fixed expiry. The filing of a chargesheet, taking of cognizance, or issuance of summons does not terminate protection unless special reasons are recorded. The duration of anticipatory bail is a matter of judicial discretion and cannot be confined by arbitrary timelines.
The Court held that risk management can be addressed by imposing conditions of cooperation, attendance, and non-tampering with evidence, and not by imposing time limits. Where circumstances change, modification or cancellation may be sought under the BNSS, 2023; however, expiry clauses inserted at the inception are unsustainable.
The Court, therefore, set aside the impugned order passed by the High Court and directed that in the event of arrest of the appellant, he shall be released on anticipatory bail subject to such terms and conditions as the Investigating Officer may deem fit to impose.
The Court also clarified an important aspect regarding the addition of new cognizable and non-bailable offences after the grant of bail. Referring to Pradeep Ram v. State of Jharkhand, the Court held that upon the addition of a new cognizable and non-bailable offence, particularly of a serious nature, the accused becomes disentitled to the liberty earlier granted in relation to the offences for which the FIR was originally registered.
The Court arrived at the following conclusions where, after the grant of bail, further cognizable and non-bailable offences are added:
- The accused can surrender and apply for bail for the newly added cognizable and non-bailable offences. In the event of refusal of bail, the accused can be arrested.
- The investigating agency can seek an order from the court under Sections 437(5) or 439(2) Cr.P.C. for the arrest of the accused and his custody.
- The Court, in exercise of its powers under Sections 437(5) or 439(2) Cr.P.C., can direct that the accused, who has already been granted bail, be taken into custody after cancellation of bail.
- Where an accused has already been granted bail, the investigating agency may not proceed to arrest him merely upon the addition of offences, but must obtain an order for arrest from the court that had granted bail.
The Court directed the Registry to forward a copy of the order to the Registrar General of the Allahabad High Court, who shall place the order before the Chief Justice of the High Court.
Case Title: Sumit v. State of U.P. & Anr.
