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.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. OF 2026
(Arising out of SLP(Crl.)No.1536/2026)
SUMIT Vs STATE OF U P & ANR.
Coram: J.B.PARDIWALA & K.V.VISWANATHAN, J.J.
Citation: 2026 INSC 145.
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
2
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
3
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.
4
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
5
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
6
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.”
7
[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)
8
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
9
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:
10
“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
11
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
12
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
13
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
14
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
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