This appeal arises from an order passed by the High Court of Allahabad by which an anticipatory bail application preferred by the appellant was rejected. The case seemed to be one of dowry death. An FIR was registered u/s.80(2)/85 BNS and ss. 3 & 4 of the Dowry Prohibition Act, 1961 by the mother of the deceased since the deceased died under mysterious circumstances at her matrimonial home. The appellant is the brother-in-law (devar) of the deceased. Anticipatory bail was granted by the High Court limited only up to filing of the chargesheet. Once the chargesheet was filed, the appellant again prayed for anticipatory bail which was rejected by the High Court.

A 2-Judges bench of the Supreme Court held –

“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.”

The Bench discussed earlier decisions on grant of anticipatory bail and held –

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

and the order passed by the High Court was set aside.

The Bench also took note of a situation where after an accused is released on bail, pending the investigation, and later upon completion of the investigation, chargesheet is filed with addition of new cognizable and non-bailable offences – 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”. In respect of circumstances where after the grant of bail to an accused, further cognizable and non bailable offences are added, it was held –

“34. …(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.”