Anticipatory bail continues without expiry, police can arrest accused only after court's nod: SC

The Supreme Court has emphasized that once anticipatory bail is granted, it ordinarily continues without a fixed expiry, however, if the investigating agency wants to arrest the accused upon adding of offence, it needs to obtain an order from the court which had granted the bail.

A bench of Justices J B Pardiwala and K V Vishwanathan said, the filing of a charge-sheet, taking of cognizance, or issuance of summons does not terminate protection to the accused unless special reasons are recorded.

The court pointed out, in Sushila Aggarwal & Ors Vs State (NCT of Delhi) & Anr (2020), the Constitution bench held that the protection granted to a person under Section 438 CrPC (now, Section 482 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023) should not invariably be limited to a fixed period; it should enure in favour of the accused without any restriction on time.

It was also 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.

The bench thus said, ''The Constitution Bench in the case of Sushila Aggarwal held that duration is a matter of judicial discretion and cannot be confined by arbitrary timelines''.

The court also pointed out, in the case of Siddharam Satlingappa Mhetre Vs State of Maharashtra, reported in (2011), this court similarly cautioned that anticipatory bail should not hinge on procedural milestones.

"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,'' the bench said.

The court here allowed an appeal filed by Sumit against the Allahabad High Court's order of January 7, 2026, rejecting his anticipatory bail application in a dowry death case. The appellant was a devar (younger brother-in-law) of the deceased woman.

In the case, the anticipatory bail was granted by the High Court as prayed for but the same was limited only upto filing of the charge sheet. Once the charge sheet 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.

"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. 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 said.

The court opined the High Court should have clarified in the impugned order as to what was so particular or what was so gross that it thought fit not to grant anticipatory bail.

Setting aside the High Court's order, the bench said, the appellant would be released on anticipatory bail subject to the terms and conditions that the Investigating Officer deem fit to impose.

Once the appellant is released by the Investigating Officer, he shall thereafter appear before the Trial Court and furnish fresh bail bond, it added.

The court also clarified an important aspect, wherein an accused has been 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, then what would be the position?

"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,'' the bench said.

In respect of a circumstance whereafter the grant of bail to an accused, further cognizable and nonbailable offences are added, the bench held:

(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 CrPC 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 CrPC 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.

Case Title: Sumit Vs State of UP & Anr

Bench: Justices J B Pardiwala and K V Vishwanathan

Date of Judgment: February 9, 2026