The Supreme Court has ruled that an investigating agency cannot re-arrest an accused who is already on bail merely because new cognizable and non-bailable offences are added in the charge sheet. The agency must first obtain permission from the court that granted bail.
A Bench of Justice J.B. Pardiwala and Justice K.V. Viswanathan laid down the principle while deciding a criminal appeal arising from a dowry death case. The Court clarified that bail protection does not automatically collapse when additional offences are incorporated during investigation.
The Bench stated that once a court grants bail, the investigating authority cannot directly take the accused into custody after adding fresh offences. It must seek an appropriate order from the same court before proceeding with arrest.
Legal Position on Addition of Graver Offences
The Court examined the issue in light of Pradeep Ram v. State of Jharkhand and Prahlad Singh Bhati v. NCT of Delhi. It held that courts must independently assess the situation when graver offences are added at the stage of filing the charge sheet.
The Bench summarised the legal position:
- The accused may surrender and seek bail for newly added cognizable and non-bailable offences. If the court refuses bail, arrest can follow.
- The investigating agency may apply under Sections 437(5) or 439(2) of the Code of Criminal Procedure (Cr.P.C.) for cancellation of bail and custody.
- The court, exercising powers under Sections 437(5) or 439(2) Cr.P.C., may direct arrest and commit the accused to custody. In appropriate cases, it may order custody even on addition of graver offences.
- However, the investigating agency cannot arrest the accused solely because new offences have been added. It must obtain an order from the court that granted bail.
Background of the Case
The ruling came in Sumit v. State of U.P. & Anr. The Allahabad High Court had granted anticipatory bail to the appellant, the brother-in-law of the deceased in a dowry death case. However, the High Court limited the protection until the filing of the charge sheet.
Challenging this restriction, the appellant approached the Supreme Court. The Bench relied on the Constitution Bench decision in Sushila Aggarwal & Ors. v. State (NCT of Delhi) & Anr., (2020) 5 SCC 1. The Constitution Bench had held that anticipatory bail, once granted, ordinarily continues without a fixed time limit. Filing of the charge sheet, taking cognizance, or issuing summons does not terminate protection unless the court records special reasons.
Applying that principle, the Supreme Court set aside the High Court’s restriction and extended the benefit of anticipatory bail to the appellant.
Clarification on Arrest After Charge Sheet
While granting relief, the Court addressed the broader question of arrest when new cognizable and non-bailable offences appear in the charge sheet. The Bench clarified that the investigating agency must approach the court that granted bail and secure an order before effecting arrest.
Appearance
For the Petitioner(s):
Mr. Shiv Sagar Tiwari, AOR; Mr. Varinder Kumar Sharma, Advocate; Mr. Mata Prasad Singh, Advocate; Mr. R.D. Rathore, Advocate; Mr. Vinay Rajput, Advocate; Ms. Ashiya Bano, Advocate; Ms. Aakansha Tiwari, Advocate; Ms. Shweta Bhadauria, Advocate; Mr. Yugal Kishor Prasad, Advocate; Mr. Bikash Chandra, Advocate; Mr. Bishan Dass, Advocate; Ms. Gitesh Kumari, Advocate; Mr. Rajesh Ranjan Kumar, Advocate; Mr. Rajesh Kumar, Advocate.
For the Respondent(s):
Mr. Ankit Goel, AOR; Mr. Mayank Tiwari, Advocate.
