Having An Option To Surrender & Apply For Regular Bail After Filing Charge Sheet Does Not Preclude Parties From Seeking Anticipatory Bail: Supreme Court

The Supreme Court on Tuesday ("November 16") observed that merely because it was kept open for the parties to surrender and apply for Regular Bail after filing of the charge sheet, the same did preclude them to apply for anticipatory bail u/s 438 Cr.P.C. after filing the charge sheet.

"Merely because it was kept open for the petitioners to surrender and apply for Regular Bail after filing of the charge sheet, the same does not preclude the petitioners to apply for anticipatory bail under Section 438 Cr.P.C. after filing of the charge sheet. It also cannot be said, that same is a second application for grant of anticipatory bail as pleaded by learned counsel appearing for respondents, on the same cause of action"

The bench of Justices R Subhash Reddy and Hrishikesh Roy in the present matter was hearing a special leave petition assailing Allahabad High Court's order dated July 23, 2021 ("impugned order").

As per the impugned order the High Court had rejected the petitioner's second anticipatory bail application. The High Court while referring to the Top Court's order dated October 7, 2020 had observed that there was no question of filing a second anticipatory bail application and the applicants should have complied with the direction of the Supreme Court by surrendering before the lower court and moving for regular bail.

While observing that it was a fit case for grant of anticipatory bail and setting aside the impugned order, the bench in their order observed,

"It also cannot be said that the same is a second application for grant of anticipatory bail as pleaded by learned counsel appearing for respondents, on the same cause of action. Further it is also brought to our notice that the husband of the deceased was granted Regular Bail after he was arrested. This Court while issuing notice also granted protection to the petitioners from arrest."

Factual Background

The petitioners who were father in law and mother in law of the deceased were sought to be prosecuted for offences u/s 323, 498A, 304B IPC r/w Section 3 and 4 of the Dowry Prohibition Act. Before the charge sheet was filed, they were granted anticipatory bail by the Top Court on October 7, 2020.

While granting bail, the Court had observed that pursuant to filing of charge sheet, it was open for the petitioners to surrender and apply for the Regular Bail before the Competent Court. After filing the charge sheet, when application for grant of anticipatory bail was filed, impugned order was passed based on the observation made by this Court, in the earlier order.

Case Title: Vinod Kumar Sharma and Anr v State of Uttar Pradesh and Anr| Special Leave to Appeal (Crl.) No. 6057/2021

Coram: Justices R Subhash Reddy and Hrishikesh Roy

Citation : LL 2021 SC 663

Counsels: Senior Advocate Siddharth Dave appeared for the Petitioners; Additional Advocate General Vinod Diwakar appeared for the State of UP and Advocate Sudhir Naagar appeared for Respondent 2

Click Here To Read/Download Order