Supreme Court asserts "court's permission needed to arrest accused for offence added post grant of bail"

In Sumit vs. State of Uttar Pradesh & Anr. (2026), Supreme Court's Division Bench of Justices J.B.Pardiwala and K.V. Viswanathan concluded:“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.” It held that an accused who is already on bail cannot be automatically re-arrested by the investigating agency merely because a new cognizable and non-bailable offence has been added in the charge sheet.

The Court observed that the investigating agency cannot automatically arrest the accused only because new offences have been added. The  agency must first obtain an appropriate order from the court that granted bail before proceeding with the arrest in respect of the newly added offence.

It examined what the legal position would be in such circumstances and whether the  agency could directly arrest the accused based on the newly added offences alone.

Drawing on its decision in Pradeep Ram v. State of Jharkhand and Prahlad Singh Bhati vs. NCT of Delhi, the recollected the following principles:

(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.

The Court was hearing a criminal appeal in a dowry death case against the Allahabad High Court's order granting a limited benefit of an anticipatory bail to the Appellant, the brother-in-law of the deceased victim. The High Court had ordered that the anticipatory bail order would be in operation till the filing of the charge sheet. 

Following High Court's denial of the extension of the anticipatory bail pursuant to the filing of the charge sheet, the Appellant moved to the Supreme Court.

Referring to 5-Judge Constitution Bench decision in Sushila Aggarwal & Ors. vs. State (NCT of Delhi) & Anr., (2020) 5 SCC 1, the Court set aside the High Court's order. It observed: “once anticipatory bail is granted, it ordinarily continues without fixed expiry.”, and “the filing of a charge-sheet, taking of cognizance, or issuance of summons does not terminate protection unless special reasons are recorded.”

Consequently, the Court granted the benefit of the anticipatory bail to the Appellant.