Court’s Permission Needed To Arrest Accused For Offence Added After Grant Of Bail

1. Leave granted.

2. This 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.

3. We heard Mr. Varinder Kumar Sharma, the learned counsel

appearing for the appellant and Mr. Ankit Goel, the learned

counsel appearing for the respondent-State.

4. It appears from the materials on record that 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

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80(2)/85 BNS and Sections 3 and 4 respectively of the Dowry

Prohibition Act, 1961.

5. The appellant before us is the brother-in-law (devar) of

the deceased.

6. The deceased was married to the brother of the appellant

past 7 months.

7. The deceased died under mysterious circumstances at her

matrimonial home. Accordingly, the FIR came to be lodged by the

mother of the deceased.

8. The case at hand as alleged seems to be one of dowry death.

9. The appellant before us apprehending arrest had earlier

preferred an application before the High Court seeking

anticipatory bail being application no.3992/2025.

10. The High Court while granting anticipatory bail passed a

very unusual order which reads thus:-

“(1) The present Criminal Miscellaneous Anticipatory

Bail Application has been filed on behalf of the

applicant Sumit in FIR No. 560 of 2024, under Section

85/80 BNS and 3/4 Dowry Prohibition Act, Police Station

Akbarpur, District Kanpur Dehat, seeking anticipatory

bail with the prayer that in case of arrest, the

applicant may be released on bail.

(2) Heard the learned counsel for the applicant and

the learned Additional Government Advocate and perused

the file.

(3) The applicant’s learned counsel argued that the

applicant is innocent and has been implicated in the

aforementioned sections with malicious intent to

harass and intimidate him. He fears that he may be

arrested in the aforementioned case, despite the lack

of credible evidence against him. The applicant has

been accused of the crime simply because he is her

brother-in-law. The First Information Report contains

no direct allegations against the applicant. The

deceased was allegedly beaten and strangled on October

21, 2024, but no complaint was filed at any police

station, nor was a medical examination conducted. The

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deceased committed suicide after staying at her

parents’ home for a month. He also stated that the

applicant has no criminal history and no coercive

proceedings have yet been initiated against him. He

further states that the applicant undertakes to

cooperate during the trial and investigation and that

he will be present at the time required by the

investigating agency or the Court and it is assured on

behalf of the applicant that he is ready to cooperate

in the process of law and he will honestly make himself

available before the Court as and when required and he

is also ready to accept all the conditions which the

Court may impose on him.

(4) The learned Additional Government Advocate

argued against the accused anticipatory bail, arguing

that the offense committed by the applicant is of a

serious nature. Considering the facts and

circumstances of the case, there is no sufficient basis

for the accused release on anticipatory bail.

Therefore, the accused should not be released on

anticipatory bail.

(5) It may be stated that in the case of Siddharam

Satlingappa Mhetre vs. State of Maharashtra, (2011) 1

SCC 694, it has been held by the Hon’ble Supreme court

that while adjudicating on an anticipatory bail

application, the Court must consider the nature and

gravity of the charges, the possibility of the accused

fleeing the judicial process and that the Court must

carefully evaluate all the material available against

the accused and also consider the actual role of the

accused.

(6) In the present case, having regard to the

settled principles of law relating to anticipatory

bail and having regard to the submissions of learned

counsel for the parties, the nature of the allegations,

the role of the applicant and all the facts and

circumstances of the case, the prayer for anticipatory

bail is liable to be allowed without any further

consideration of the merits of the case. Accordingly,

the anticipatory bail application is allowed.

(7) In case of arrest of the applicant involved in

the above case crime number, he will be released on

anticipatory bail (till the filing of the police charge

sheet) on furnishing a personal bond of Rs. 50,000/-

and two sureties of the same amount to the satisfaction

of the officer in charge of the concerned police

station, subject to the following conditions:-

1. The applicant shall, if required, be present at

the required time for examination by the police

officer.

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2. The applicant shall not make any threat,

promise or inducement, directly or indirectly, to

any person acquainted with the facts of the case,

or to any police officer to agree not to disclose

such facts before the Court or to any police officer.

3. 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.

(8) Accordingly, this anticipatory bail application

is finally disposed of with the above observations.

11. A plain reading of the order referred to above would

indicate that the anticipatory bail was granted by the High

Court as prayed for but the same was limited only upto 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.

12. We fail to understand what is the idea in restricting the

grant of anticipatory bail upto the stage of completion of

investigation and filing of the chargesheet.

13. 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

was no good reason for the High Court to restrict it upto the

stage of filing of the chargesheet.

14. In the earlier order passed by the High Court referred to

above in para 10 the High Court observed that having regard to

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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.

15. If the aforesaid be so, then the High Court should have

indicated while declining to grant anticipatory bail by way of

the impugned order as to what was so particular or what was so

gross that the High Court thought fit not to grant anticipatory

bail.

POSITION OF LAW

16. In Bharat Chaudhary and Anr. vs. State of Bihar and Anr.

reported in (2003)8 SCC 77, this Court 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 thus:-

“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

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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.”…

[Emphasis supplied]

17. The very same view as aforesaid came to be 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 this 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.”

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[Emphasis supplied]

18. 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?

19. The Constitution Bench answered the reference as under:

“ 91.1. Regarding Question 1, this Court holds 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.

91.2. As regards the second question referred to this

Court, 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.”

[Emphasis supplied]

20. The following observations made by the Constitution Bench

in paras 77.3 and 77.4 respectively of Sushila Aggarwal (supra)

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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).”

[Emphasis supplied]

21. In the High Court of Delhi vs. CBI reported in 2004 SCC

OnLine Del 53, somewhat similar question arose 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

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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.

xxxx xxxx xxxx

19. It appears that the learned Special Judge was

labouring under 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.

20. 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.”

[Emphasis supplied]

22. The aforesaid decision of the Delhi High Court received

imprimatur of this Court in Siddharth vs. State of Uttar Pradesh

& Anr., reported in (2022) 1 SCC 676, wherein it was observed

as under:

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“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.

10. We may note that personal liberty is an important

aspect of our 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.

xxxx xxxx xxxx

12. In the present case 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.”

23. Further, this Court in Satender Kumar Antil vs. CBI

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reported in (2022) 10 SCC 51 said in clear terms that the mandate

laid down in Siddharth (supra) should be strictly complied with.

24. 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

by 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,

this Court 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……”

[Emphasis supplied]

25. Thus, the position of law is well settled: once

anticipatory bail is granted, it ordinarily continues without

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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.

26. 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.

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.

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

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completion of the investigation, chargesheet is filed with

addition of new cognizable and non-bailable offences, then what

would be the position?

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 nonbailable

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

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aggravated crime.

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.

35. The appeal is accordingly, disposed of.

36. Pending application(s), if any, also stand disposed of.

37. Registry shall forward a copy of this order to the Registrar

General, High court of Allahabad, who in turn shall place this

order before Hon’ble the Chief Justice of High Court.

……………………………………………J.

(J.B. PARDIWALA)

……………………………………………J.

(K.V. VISWANATHAN)

NEW DELHI

09TH FEBRUARY 2026